COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78531 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : PHILLIP GAMMALO, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JULY 5, 2001 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-377324 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: William D. Mason, Esq. Cuyahoga County Prosecutor BY: Richard J. Bombik, Esq. Assistant County Prosecutor The Justice Center 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: James A. Draper, Esq. Cuyahoga County Public Defender BY: Donald Green, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 -2- MICHAEL J. CORRIGAN, J.: Defendant appellant, Phillip Gammalo, appeals from the verdict of a three judge panel in the Cuyahoga County Court of Common Pleas wherein he was found guilty of aggravated murder and attempted rape. The appellant asserts that his conviction is defective because he did not properly waive his right to a jury trial and because the verdict was against the manifest weight of the evidence. Finding no merit in either of the appellant's assignments of error, we affirm the verdict of the trial court. On July 18, 1998, Sheryl Eddy was murdered near railroad tracks in the vicinity of East 65th Street and Broadway Avenue in Cleveland. The victim, who was thirty-one years old and had two children at the time of her death, was part of a group of people who would regularly drink and socialize in the vicinity of the aforementioned railroad tracks. When the victim's body was discovered the next afternoon, it was evident that she had been sexually assaulted. The victim was nude from the waist down, with her pants around her ankles and her tank top pulled over her breasts. The Cuyahoga County Coroner's office determined that the cause of death was asphyxia by cervical compression. At the time of her death, the victim was highly intoxicated as her blood alcohol level was .30. Several witnesses who testified at trial saw the appellant in the company of the victim on the night in question. One eyewitness testified that she heard the victim screaming and that she observed the appellant on top of the victim with his shirt off apparently -3- choking the victim. This witness also stated that she distinctly heard the victim tell the appellant that she did not want to have sex with him. Although the appellant was a suspect in the homicide investigation from its inception, he was not indicted until June 22, 1999. The indictment included two counts of aggravated murder, with death penalty specifications and one count of attempted rape. This delay was due, at least in part, to the fact that the state's eyewitness did not come forward with her story until nearly a year after the offense was committed. On January 24, 2000, after the appellant had executed a jury waiver1, a trial commenced before a three judge panel. At the close of the state's case, the trial court dismissed one of the two aggravated murder counts. At the conclusion of the trial, the panel found the appellant guilty of one count of aggravated murder and one count of attempted rape. After a mitigation hearing, the trial court sentenced the appellant to a term of thirty years on the aggravated murder count and eight years on the attempted rape count. The two sentences were imposed concurrently. The trial court's sentence was journalized on August 10, 2000. Thereafter, this appeal was timely commenced on September 6, 2000. The appellant presents two assignments of error for this court's review. The first assignment of error states: 1The jury waiver form was signed by both the appellant and his trial attorney. -4- I. THE THREE JUDGE PANEL LACKED JURISDICTION TO TRY A (SIC) PHILLIP GAMMALO WHEN THE JURY WAIVER WAS NOT IN STRICT COMPLIANCE WITH REVISED CODE 2945.05. R.C. 2945.05 which governs a defendant's waiver of his right to a trial by jury, provides: In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. It shall be entitled in the court and cause, and in substance as follows: "I . . . . . . . ., defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried by a Judge of the Court in which the said cause may be pending. I fully understand that under the laws of this state, I have a constitutional right to a trial by jury." Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel. Such waiver may be withdrawn by the defendant at any time before the commencement of the trial. To be valid, a jury waiver must be voluntary, knowing and intelligent. State v. Bays (1999), 87 Ohio St.3d 15, 19, 716 N.E.2d 1126, 1134. A written waiver is presumptively knowing, intelligent, and voluntary, and the defendant has the burden of showing otherwise. Id; see, also, State v. Otte (Jan. 25, 2001), Cuyahoga App. No. 76726. Waiver may not be presumed from a silent record; however, if the record shows a jury waiver, the verdict will not be set aside except on a plain showing that the waiver was not freely and intelligently made. State v. Bays, supra, 87 Ohio St.3d at 19, citing Adams v. United States ex rel. McCann (1942), 317 U.S. 269, 281, 63 S.Ct. 236, 242-243, 87 L.Ed. 268, 275-276. (Emphasis added.) Thus, because the record in the instant case -5- demonstrates that the appellant executed a jury waiver, the appellant has the burden herein to make a plain showing that the waiver was not freely and intelligently made. In a criminal case where the defendant elects to waive the right to trial by jury, R.C. 2945.05 mandates that the waiver must be in writing, signed by the defendant, filed in the criminal action and made part of the record thereof. See State v. Pless (1996), 74 Ohio St.3d 333, paragraph 1 of the syllabus. Absent strict compliance with the requirements of R.C. 2945.05, a trial court lacks jurisdiction to try the defendant without a jury. Id; see, also, State v. Tate (1979), 59 Ohio St.2d 50, and State ex rel. Jackson v. Dallman (1994), 70 Ohio St.3d 261. The appellant alleges in this assignment of error that his written jury waiver was defective because it did not inform him that he also had a right for a jury to determine his penalty and because the trial court did not engage in colloquy with him prior to acknowledging his waiver on the record. The appellant misapprehends his right to a jury trial to the extent that he believes that he has a right to have a three judge panel determine his guilt or innocence, but then to have a jury determine his penalty after being adjudicated guilty. Pursuant to R.C. 2929.03(C)(2)(b), if a person is convicted of a crime for which the death penalty is a possible penalty, he may be sentenced to death either by a three judge panel or by the trial jury and the trial judge. In such a case a penalty shall only be determined by the trial jury if the offender was tried by a jury. (Emphasis -6- added.) R.C. 2929.03(C)(2)(b)(ii). By foregoing his right to have a jury determine his guilt or innocence the appellant was also foregoing the opportunity to have the jury participate in the penalty phase of the proceedings. To the extent that the appellant is feigning confusion as to the logistics of a sentencing hearing in a capital case subsequent to a jury trial vis-a-vis those subsequent to a trial before a judge or a three judge panel, we note that the statutory language in question is concise and clearly written and that the appellant was represented by an experienced and very well respected defense counsel who undoubtedly understood that a jury participates in the sentencing phase of a capital case only where a defendant does not waive his right to a jury trial. The trial court is not required to inform the defendant of all the possible implications of waiver. State v. Bays, supra, 87 Ohio St.3d 20, citing State v. Jells (1990), 53 Ohio St.3d 22, 559 N.E.2d 464, paragraph one of the syllabus. A defendant need not have a complete or technical understanding of the jury trial right in order to knowingly and intelligently waive it. United States v. Martin (C.A.6, 1983), 704 F.2d 267, 273. The Sixth Circuit Court of Appeals succinctly explained the requirements for a knowing and voluntary waiver in U.S. v. Sammons (C.A.6. 1990), 918 F.2d 592, as follows: A defendant is sufficiently informed to make an intelligent waiver if he was aware that a jury is composed of 12 members of the community, he may participate in the selection of the jurors, the verdict of the jury must be unanimous, and that a judge alone will decide guilt or innocence should he waive his jury -7- trial. Knowledge of these essential attributes is generally sufficient to enable a defendant to make a knowing and intelligent decision. Citing Martin, supra, 704 F.2d at 273. The appellant also asks that this court impose a requirement whereby a trial court would need to engage in a protracted colloquy, similar to that required by Crim.R. 11 before accepting a guilty plea, with a defendant before accepting his waiver of a jury trial. We decline to mandate that the trial court engage in such a dialogue. The appellant has the burden of showing that his signed written waiver was not made knowingly, voluntarily and intelligently. It is not enough to satisfy this burden to assert in a conclusory fashion on appeal that the trial court should have engaged in a more extensive dialogue before accepting the jury waiver at the appellant's request. The appellant and his attorney each signed the jury waiver in question. The waiver stated that the appellant fully understood that he had a right to a jury, but was choosing to waive that right in order to be tried by a three judge panel. The appellant acknowledged in open court that he had signed the waiver, it was filed with the clerk of courts and it was made part of the record. There has been no evidence of, or even a suggestion of, coercion exerted upon the appellant in order that he would forfeit his right to a jury trial. Thus, we conclude that the jury waiver was properly executed and was in accordance with the dictates of R.C. 2945.05. For the foregoing reasons, this assignment of error is overruled. -8- The appellant's second assignment of error states: II. PHILLIP GAMMALO WAS DENIED HIS FREEDOM WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION, WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Article IV, Section 3(B)(3) of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence independently of the fact-finder. Thus, when a claim is assigned concerning the manifest weight of the evidence, an appellate court has the authority and the duty to weigh the evidence and determine whether the findings of *** the trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial. State ex rel. Squire v. City of Cleveland (1948), 150 Ohio St. 303, 345. The standard employed when reviewing a claim based upon the weight of the evidence is not the same standard to be used when considering a claim based upon the sufficiency of the evidence. The United States Supreme Court recognized these distinctions in Tibbs v. Florida (1982), 457 U.S. 31, where the Court held that unlike a reversal based upon the insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require special deference accorded verdicts of acquittal; i.e., invocation of the double jeopardy clause as a bar to relitigation. Id. at 43. Upon application of the standards enunciated in Tibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: -9- There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Moreover, it is important to note that the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. Hence, we must accord due deference to those determinations made by the trier of fact. During the course of the trial, the appellant presented numerous witnesses who purported to vouch for his whereabouts on the night of the murder in question. These witnesses were intended to corroborate the appellant's alibi that he was in Ravenna at the time of the victim's death.2 The finder of fact was required to weigh the testimony of these individuals against the witnesses who placed the appellant in the company of the appellant and/or the vicinity of the murder on the night in question. The trier of fact also had to weigh the appellant's testimony that he was not romantically involved with the victim and had not seen her in the month prior to her murder against the testimony of witnesses who stated that there was a romantic attachment and that the two had 2On November 5, 1998, the appellant was interviewed by Cleveland Police homicide detectives at Belmont Correctional Institution. The appellant was incarcerated at the time on a vehicular grand theft charge dating back to 1993. During this interview, the appellant stated that he was in Ravenna with a friend at the time of the victim's death. -10- been in each other's company shortly before the murder. The victim's mother testified at trial that she received a phone call several days prior to her daughter's murder from a Phil stating that he would be coming to town and asking that she tell her daughter to meet him at the Convenient at East 65th and Broadway. The trial court also heard the testimony of the appellant's cellmate at the Cuyahoga County Jail, who the appellant had been familiar with since the 1970s, who claimed that the appellant admitted his culpability to the murder while incarcerated and stated that he killed the victim because she was dating another man. The mere fact that the appellant presented alibi witnesses does not mean that the trial court was compelled to accept the truthfulness of the testimony of these witnesses. The trier of fact is entitled to believe or disbelieve the testimony of all witnesses whether the prosecution or the defense. State v. Antill (1964), 176 Ohio St. 61, 197 N.E.2d 548; State v. McKoy (Feb. 17, 2000), Cuyahoga App. No. 74763, unreported. From our review of the entire record we are unable to conclude that the three judge panel clearly lost its way and created a manifest miscarriage of justice. Accordingly, this assignment of error is overruled. Judgment affirmed. -11- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MICHAEL J. CORRIGAN JUDGE *JOSEPH J. NAHRA, J., CONCURS. (*SITTING BY ASSIGNMENT: Judge Joseph J. Nahra, Retired, of the Eighth District Court of Appeals.) TIMOTHY E. McMONAGLE, P.J., CONCURS IN JUDGMENT ONLY. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .