STATE OF OHIO v. KELLY D. WILLIAMS
Appellate Case No. 24548
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
September 14, 2012
2012-Ohio-4179
Trial Court No. 2009-CR-4183/1
OPINION
Rendered on the 14th day of September, 2012.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
ANTHONY S. VANNOY, Atty. Reg. #0067052, 130 West Second Street, Suite 1600, Dayton, Ohio 45402 Attorney for Defendant-Appellant
WILLAMOWSKI, J. (Sitting by Assignment)
{¶ 1} Defendant-Appellant, Kelly D. Williams (“Williams“), appeals the judgment of the Montgomery County Court of Common Pleas after a jury trial finding Williams guilty
{¶ 2} On August 31, 2010, the Montgomery County Grand Jury indicted Williams on two counts of Murder, two counts of Aggravated Robbery and two counts of Felonious Assault, all with attendant firearm specifications. These charges arose out of the January 23, 2009 murder and armed robbery of 24-year-old Demetrius Frazier (“Frazier” or “the victim“). The victim was conned into believing he would be buying marijuana from an old friend, Deon Pinson (“Pinson“). Instead, Frazier was robbed and shot. Williams, Pinson, and Demar Maxwell (“Maxwell“) were all implicated in the robbery and murder.
{¶ 3} Williams filed a number of pre-trial motions. Relevant to this appeal was a motion filed pursuant to
{¶ 4} The second pre-trial motion that was relevant to this appeal was filed by Williams, pro se, asking for the dismissal of his counsel. (Docket #44) The trial court held a hearing on the motion on January 18, 2011, at which time Williams was given an opportunity
{¶ 5} On February 11, 2011, after twenty-one witnesses over four days of trial, the jury found Williams guilty as charged. During the trial, the State offered the testimony of numerous witnesses, including many of the Dayton police officers and detectives that were first responders at the crime scene and/or were involved in the investigation of the murder; police laboratory personnel; the Montgomery County Coroner; cell phone records custodians; and the victim‘s mother.
{¶ 6} The State‘s most incriminating testimony came from Pinson, who had accepted a plea agreement allowing him to plead guilty to lesser offenses in exchange for his agreement to appear and testify truthfully in any court proceedings. (Tr. 279-280) Pinson was serving a nine-year sentence for involuntary manslaughter, aggravated robbery, and one gun specification. (Tr. 279).
{¶ 7} Pinson testified in detail as to the events that happened on January 23, 2009, and thereafter. (Tr. 278-338) Pinson testified that Frazier called him, wanting to buy some marijuana. While Pinson was in the process of trying to locate the amount needed, Williams called Pinson and indicated he needed a way of getting money and asked if Pinson knew how he could “hit a lick” (commit a robbery) or “flip some drugs.” (Tr. 287-88). Pinson
{¶ 8} The State also offered numerous exhibits into evidence including, 9-1-1 tapes; photographs of the crime scene, the victim, and the vehicle; and various types of DNA, ballistic, and other forensic evidence. Also admitted were detailed cell phone records of Williams, Pinson, and Maxwell (Exhibits 72, 74, 103) indicating that Williams and Pinson had called each other a multitude of times on the day of the murder, both before and after, and there were also calls to and from Maxwell, the victim, various friends/family members of the victim (while Pinson was trying to find him to ascertain whether he had been shot). Detective Gregory Gaier testified extensively as to his lengthy investigation of the case, and how he was able to use the evidence they discovered in conjunction with what he learned from his interviews and investigations to eventually learn that Williams, Pinson, and Maxwell were responsible for Frazier‘s murder. (Tr. 355-425).
{¶ 10} Maxwell also testified for the defense after being warned that anything he said could be used against him at his own trial for the murder, which was scheduled to take place two weeks later. (Tr. 481-544) Maxwell indicated that he didn‘t care and didn‘t have anything to lose, as he was already serving a sentence of 37-years-to-life for an unrelated aggravated murder and several other felonies. (Tr. 492) Maxwell denied that he had killed Frazier, or that he was in any way involved in the robbery transaction that occurred. (Tr. 540) He also testified that Williams had never asked him to commit a robbery, assault, or murder involving Pinson and Frazier. (Id.). Maxwell acknowledged that he had previously given a statement to police implicating Williams, but stated that he wasn‘t telling the truth at that time, but was merely trying to “retaliate” because he believed at that time that Williams was the person who had “set him up” as the one doing the crime. (Tr. 493, 530, 533-534). He later learned that Pinson was the one who “snitched,” so he no longer wanted to get “revenge” on Williams. Id.
{¶ 11} On cross-examination, the State confronted Maxwell with the fact that he had lied repeatedly to the police and that his testimony at trial was the seventh different version of events that he had given. (Tr. 510, 529-534). The State challenged Maxwell with the ever-changing versions he had given in his other statements to the police. (Id.) The State also questioned the motive behind Maxwell‘s testimony with a letter he had written to
{¶ 12} After closing arguments, the trial court gave the jury instructions, including instructions pertaining to an “aider and abettor” acting in complicity. The jury found Williams guilty on all counts.
{¶ 13} On March 8, 2011, Williams appeared for sentencing. After taking into consideration the offenses which were subject to merger, the trial court sentenced Williams to an aggregate sentence of 26 years to life in prison.
{¶ 14} The Termination Entry was filed on March 11, 2011. It is from this judgment that Williams now appeals, raising the following assignments of error for our review.
First Assignment of Error
WILLIAMS WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
Second Assignment of Error
[WILLIAMS] WAS DENIED A FAIR TRIAL THROUGH THE TRIAL COURT‘S ADMISSION OF GRUESOME PHOTOGRAPHS.
Third Assignment of Error
THE TRIAL COURT DENIED [WILLIAMS] HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL THROUGH ITS FAILURE TO INVESTIGATE [WILLIAMS‘] CLAIM THAT HIS COUNSEL‘S PERFORMANCE WAS UNSATISFACTORY.
[WILLIAMS] WAS DEPRIVED OF A FAIR TRIAL THROUGH PROSECUTORIAL MISCONDUCT.
{¶ 15} In addition to the four assignments of error set forth in his original appellate brief, Williams has also raised two supplemental assignments of error, filed four months after the original appellate brief.
Supplemental Assignment of Error One [Fifth Assignment of Error]
[WILLIAMS] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL THROUGH COUNSEL‘S FAILURE TO OBJECT [TO] INADMISSIBLE EVIDENCE.
Supplemental Assignment of Error Two [Sixth Assignment of Error]
[WILLIAMS‘] RIGHTS TO DUE PROCESS, CONFRONTATION, AND A FAIR TRIAL WERE COMPROMISED THROUGH IMPROPER ADMISSION OF THE SEARCH WARRANT AFFIDAVIT AND THE COURT‘S ENTRY AND ORDER FINDING PROBABLE CAUSE.
{¶ 16} Several of Williams’ assignments of error deal with similar and overlapping issues. Therefore, in order to facilitate our review, we shall combine some of the assignments of error and address them out of order.
First, Third, Fifth Assignments of Error – Ineffective Assistance of Counsel
{¶ 17} Three of Williams’ assignments of error, the first, third, and fifth, deal with the issue of alleged ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show (1) deficient performance by counsel, namely, performance
{¶ 18} In his first assignment of error, Williams argues that his counsel provided ineffective assistance for failing to “research the law and properly support his motion for the deposition of an unavailable witness.” William‘s attorney filed a motion, pursuant to
{¶ 19} In setting forth his argument, Williams asks us to make the assumption that that Noel was truly unavailable, that there was a valid reason why a
{¶ 20} Additionally, even if we were to assume that counsel‘s performance was professionally unreasonable, an error by counsel does not warrant setting aside a criminal conviction if the error had no effect on the judgment. To warrant reversal, the defendant “must show that there is a reasonable probability that, but for counsel‘s unprofessional errors,
{¶ 21} Williams has failed to show how he was prejudiced by counsel‘s deficient performance, i.e., Williams has not met his burden of showing that, but for his counsel‘s alleged errors, the motion for a deposition would have been granted; that the deposition would have taken place; and, that Noel‘s testimony during the deposition would likely have changed the jury‘s verdict. From the record, there is no way of knowing what relevant information Noel had about this case, or what Noel would have testified to if deposed and/or called as a witness at trial. The little information about Noel in the record came about during the testimony of Maxwell when Maxwell testified that he knew Williams and Pinson were looking for a gun, and that he told Williams he‘d help him get a gun from Noel. (Tr. 506-508) If Noel‘s testimony was consistent with what is in the record, Noel‘s testimony would have further hurt, rather than helped, Williams’ defense.
{¶ 22} There is nothing in the record to substantiate Williams’ claim of ineffective assistance of counsel concerning his allegations in reference to the pre-trial motion for a deposition. The first assignment of error is overruled.
{¶ 23} In the third assignment of error, Williams complains that the trial court failed to make a proper inquiry and investigation into his allegations of his complaints against his attorney. On January 13, 2011, Williams filed a pro se motion entitled “Motion for Dismissal
{¶ 24} However, the record shows that the trial court did conduct a hearing on the motion on January 18, 2011, and Williams was given an opportunity to explain why he felt his attorney was not providing proper representation. Williams explained to the court that he did not feel that his attorney was necessarily doing a poor job, but that there were things he wanted his counsel to do, which he had not done. (1/18/11 Tr. 2-3, 5-6) After the trial court explained to Williams the extent to which his counsel had been working on his case (the court told Williams that his counsel had been “papering me to death” with pre-trial motions), Williams informed the court that he wished to keep his attorney and proceed to Trial. (1/18/11 Tr. 6).
{¶ 25} Being an indigent defendant, Williams was not entitled to the attorney of his choice at state expense, but rather was entitled to competent, effective representation from the lawyer appointed by the court. State v. Gordon, 149 Ohio App.3d 237, 2002-Ohio-2761, 776 N.E.2d 1135, ¶ 11 (1st Dist.). To discharge court-appointed counsel, “the defendant must show a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant‘s right to effective assistance of counsel.” (Internal citations omitted.) State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988), paragraph four of the syllabus.
{¶ 27} As a second part of this third assignment of error, Williams contends that several aspects of his counsel‘s trial performance “reveal reasons to be suspicious about his attorney‘s preparation and effectiveness.” (Appellant‘s Brief, p. 4) Williams complains that his counsel offered no opening statement; that he did not cross-examine many of the witnesses, and conducted “very brief and ineffective” cross-examinations of other witnesses; that he failed to request a jury instruction concerning the evaluation of a co-conspirator‘s testimony; and that he permitted the admission of damaging material through the leading questions of the prosecutor. (Id.).
{¶ 28} A defendant must overcome the presumption that counsel is competent and must show that counsel‘s decisions were “not trial strategies prompted by reasonable professional judgment.” Strickland v. Washington, 466 U.S. at 687. “The scope of cross-examination falls within the ambit of trial strategy, and debatable trial tactics do not establish ineffective assistance of counsel.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101. The failure to make objections is not alone enough to sustain a claim of ineffective assistance of counsel and may be justified as a tactical decision. State v. Gumm, 73 Ohio St.3d 413, 428, 1995-Ohio-24, 653 N.E.2d 253. Even
{¶ 29} All of the above complaints raised by Williams fall under the category of an attorney‘s “trial strategy,” and do not constitute a basis for a claim of ineffective assistance of counsel, absent egregious error. Furthermore, a review of the record demonstrates that there was a very sound basis for many of counsel‘s strategic decisions. For example, many of the State‘s witnesses were police and paramedic first responders, or other investigators, who merely provided a foundation of basic facts for the State‘s case, i.e., time and location of the victim‘s death, cause of death, information as to what was found at the scene, etc. None of that testimony implicated Williams in any way, so there was nothing relevant to Williams’ defense on which to cross-examine these witnesses. There was no reason to prolong testimony about how the unfortunate victim had desperately tried to find help before he finally succumbed to horrible injuries and died a terrible death. Williams’ counsel appropriately cross-examined all of the witness that offered testimony relative to his guilt or innocence.
{¶ 30} And, his contention that his counsel was somehow ineffective for not requesting a jury instruction on a co-conspirator‘s testimony is belied by the record, which shows that such an instruction was given. (Tr. 630-631) Also, his claim that counsel was ineffective for not objecting to the prosecutor‘s leading questions of Maxwell is also meritless since the questions arose when the prosecutor was cross-examining Maxwell, when leading questions are permitted.
{¶ 31} And finally, regardless of whether Williams’ “suspicions” of counsel‘s performance are valid, Williams has not shown that he was prejudiced by counsel‘s tactics or
{¶ 32} In Williams’ First Supplemental Assignment of Error (“Fifth Assignment of Error“), he asserts that his counsel was ineffective for failing to object to the admission of certain court documents that were apparently inadvertently submitted to the jury along with Exhibits 72, 74, and 103, which were the cell phone records belonging to Williams, Maxwell and Pinson. In addition to the call detail records themselves, each of the exhibits included a copy of the Order and Entry granting the detective‘s request to obtain the records. (Id.) Also included as part of State‘s Exhibit 72 (Pinson‘s cell phone records) and State‘s Exhibit 103 (Maxwell‘s cell phone records), was a copy of Detective Gaier‘s Application requesting the records.
{¶ 33} As stated above, to prevail on a claim of ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice. Strickland v. Washington, supra, 466 U.S. 668. To meet this burden under the prejudice prong, Williams must show that “there is a reasonable probability that, but for his counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694; State v. Bradley, 42 Ohio St.3d at 142. Here, Williams fails to meet that burden.
{¶ 34} None of the information contained with the Applications and Orders and Entries for the cellphone records was anything new. The jury was already aware that Detective Gaier had obtained court orders for three sets of cell phone records: (1) Pinson‘s cell phone records; (2) the cell phone records of the person Pinson claimed he called to
{¶ 35} Consequently, any information gleaned from the Applications and Orders and Entries was already known by the jury before it reviewed the exhibits during its deliberations. Therefore, the prejudicial impact, if any, of including the administrative paperwork along with the exhibits was minimal, at the most.
{¶ 36} Because Williams fails to show that the outcome of the trial would likely have been different had his counsel objected to the applications for cellphone records and the orders and entries granting the applications being included as part of the record submitted to the jury, Williams’ claim of ineffective assistance of counsel cannot be sustained. His first supplemental/fifth assignment of error is overruled.
Sixth Assignment of Error – Rights Violated Due to Improper Admission
{¶ 37} In his Second Supplemental Assignment of Error (“Sixth Assignment of Error“), Williams argues that, even without an objection, the trial court on its own should have excluded from evidence the detective‘s Application for the phone records and the Entries and Orders granting the Applications that were attached to the cell phone records exhibits discussed above. Williams contends that the trial court‘s findings of “probable cause” in its
{¶ 38} Because Williams failed to object to the admission of this evidence, he has waived all but plain error. State v. Bahns, 185 Ohio App.3d 805, 2009-Ohio-5525, 925 N.E.2d 1025, ¶ 19 (2d Dist.). Plain error does not exist unless it can be said that, but for the error, the outcome of the trial clearly would have been different. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 108. To constitute plain error, the error must be obvious on the record, palpable, and fundamental. State v. Stevens, 2d Dist. Montgomery No. 10203, 1988 WL 4341 (Jan. 15, 1988), at *2. Notice of plain error, therefore, “is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” Lang, supra, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), at paragraph three of the syllabus.
{¶ 39} As we discussed above in our response to the second supplemental/fifth assignment of error, the improper admission of the Applications and Orders and Entries amounted to a harmless error because all of the information was already before the jury through the testimony of the various witnesses. Merely having documents before the jury indicating that obtaining the cell phone records would be of some assistance to the police, is not prejudicial. There was no evidence that this apparently inadvertent error, which was not noticed by the trial court, the State, or defense counsel,2 would have changed the outcome of the trial.
{¶ 41} The trial court also instructed the jury that:
If, during the course of the trial, the Court, and by this I mean myself, the bailiff, the judicial assistant, the staff attorney or anyone associated with the court, said or did anything you consider an indication of their or the court‘s view on the facts, you are instructed to disregard it.
The Court must be, and we sincerely try to be, impartial in presiding over this and every other trial. We do not have the right and do not desire to invade the province of the jury by indicating in any way a preference between the State and the Defendant, and we have not done so at any time.
(Tr. 661-662) These jury instructions clearly instructed the members of the jury that the trial court did not have any view on Williams’ guilt or innocence and they were to disregard anything that might suggest otherwise. “A trial jury is presumed to follow the instructions given to it by the judge.” Beckett v. Warren, 124 Ohio St.3d 256, 2010-Ohio-4, 921 N.E.2d 624, ¶ 18; State v. Brown, 2d Dist. Montgomery No. 24420, 2012-Ohio-416, ¶ 36 (“a jury will
{¶ 42} Williams has not provided any evidence that the inclusion of the administrative paperwork accompanying the cell phone records was prejudicial and would have changed the outcome of the trial. The information contained in those documents was already before the trial court and was cumulative. Williams’ second supplemental/sixth assignment of error is overruled.
Second Assignment of Error – Prejudicial Admission of Photographs
{¶ 43} In this assignment of error, Williams maintains that the trial court denied him a fair trial by admitting into evidence certain photographs that he alleges are “gruesome.” Williams specifically objects to the admission of State‘s Exhibits 12-13, 15-18, 78-79, 85-86, and 92, claiming that their probative value was outweighed by the danger of unfair prejudice. He cites to the Ohio Supreme Court‘s decision in State v. Morales, 32 Ohio St.3d 252, 259, 513 N.E.2d 267 (1987), cautioning against the use of “excessive photographic evidence” that would be “cumulative, repetitious and prejudicial.” (Appellant‘s Brief, p. 2).
{¶ 44} The admission or exclusion of photographs is governed by
{¶ 45} For that reason, “[w]hen determining whether the relevance of evidence is outweighed by its prejudicial effects, the evidence is viewed in a light most favorable to the proponent, maximizing its probative value and minimizing any prejudicial effect to the party opposing admission.” State v. Lakes, 2d Dist. Montgomery No. 21490, 2007-Ohio-325, ¶ 22. In addition, “the decision to either admit or exclude relevant photos is committed to the sound discretion of the trial court,” and “an appellate court will not disturb a trial court‘s ruling on the admissibility of photos absent an abuse of discretion.” Id. The term abuse of discretion implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). It involves views or actions “that no conscientious judge, acting intelligently, could honestly have taken.” (Internal citations omitted.) State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 129-130.
{¶ 46} The Supreme Court of Ohio has held that “the mere fact that [a photograph] is gruesome or horrendous is not sufficient to render it inadmissible if the trial court, in the exercise of its discretion, feels that it would prove useful to the jury.” State v. Frazier, 61 Ohio St.3d 247, 252, 574 N.E.2d 438 (1991), quoting State v. Woodards, 6 Ohio St.2d 14, 25, 215 N.E.2d 568 (1966). Such photographs may help illustrate witness testimony and forensic evidence, or show the nature and circumstances of the crime. See State v. Jalowiec, 91 Ohio St.3d 220, 230, 2001-Ohio-26, 744 N.E.2d 163. “It is to be expected that most photographs of a murder victim will depict blood and will be gruesome by their very nature.” State v. Moss, 2d Dist. Montgomery No. 22496, 2008-Ohio-6969, ¶ 28.
{¶ 48} The photographs in this case that Williams objected to show the victim‘s body at the location where he died, they show the body from various angles to indicate where the gunshot wounds occurred, and they served to illustrate some of the coroner‘s testimony. Obviously, some of the photos were gruesome and showed a considerable amount of blood, since they depicted a gunshot murder victim. See Moss, supra. However, we do not find that there was an excessive number of these photographs, and they were relevant in helping to illustrate the testimony of several of the witnesses regarding the position of the body and the nature and cause of death. The trial court considered the defense‘s objections carefully, questioned the State as to the relevance and purpose of each challenged photograph, and sometimes required the State to eliminate one or another photograph in order to avoid unnecessary repetition. (Tr. 456-470) In fact, not all of the photographs complained of in this appeal were actually admitted.
{¶ 49} The photographs that were admitted were limited in number, were not repetitive, and had probative value and relevance that was not substantially outweighed by the danger of unfair prejudice to Williams. We do not find that the trial court abused its discretion in admitting the photographs into evidence, especially in consideration of the
Fourth Assignment of Error -- Prosecutorial Misconduct
{¶ 50} Williams contends that his right to a fair trial was violated by prosecutorial misconduct when, during the cross-examination of Demar Maxwell, the prosecutor accused Maxwell of lying. Specifically, Williams objects to the following exchange that occurred between the prosecutor and Maxwell:
MAXWELL: The problem was I was lying to your detective because your detective tried to manipulate me. So, I enjoyed myself while he tried to question me.
PROSECUTOR: No, no, sir. The problem is you lied to this jury and you‘re lying to this jury now. And every time another piece of evidence comes out to prove your lies, you make up another lie. Isn‘t that true? Isn‘t that how you work?
(Tr. 529). Williams claims that the prosecutor‘s question strongly implied that it was the prosecutor‘s opinion that Maxwell was lying, which was improper because a prosecutor‘s remarks might carry great weight with the jurors because of his position as an officer of the court.
{¶ 51} The test for prosecutorial misconduct is whether remarks were improper and, if so, whether they prejudicially affected substantial rights of the accused. State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). The touchstone of analysis “is the fairness of the trial, not the culpability of the prosecutor.” State v. Jones, 90 Ohio St.3d 403, 420, 2000-Ohio-187, 739 N.E.2d 300.
{¶ 52} Because Williams’ counsel did not object at trial to the alleged misconduct about which he now complains, he waives all but plain error. See State v. Smith, 80 Ohio St.3d 89, 110, 1997-Ohio-355, 684 N.E.2d 668. As stated above in our discussion of the sixth assignment of error, an alleged error constitutes plain error only if the error is obvious and, but for the error, the outcome of the trial clearly would have been different. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 108.
{¶ 53} In our review of the record, we do not find any error or misconduct on the part of the prosecutor, and certainly not plain error. The cases that Williams cites for the proposition that it is improper for a prosecutor to express “a personal belief or opinion as to the credibility of a witness” were referring to a prosecutor‘s improper remarks in interpreting the evidence and usurping the jurors’ role of assessing credibility, that were made during closing arguments. See Appellant‘s Brief, p. 5, quoting/citing State v. Givens, 12th Dist. Butler Nos. CA2009-05-145, CA2009-05-146, 2010-Ohio-5527; State v. Baldev, 12th Dist. Butler No. CA2004-05-106, 2005-Ohio-2369, ¶ 20; and State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “Prosecutors have wide latitude in cross-examining witnesses, subject to the trial court‘s discretion.” State v. Brown, 2d Dist. Montgomery No. 24541, 2012-Ohio-1848, ¶ 22, citing State v. Garfield, 34 Ohio App.3d 300, 303, 578 N.E.2d 568 (11th Dist.1986).
{¶ 54} The statements made by the prosecutor during his cross-examination of
{¶ 55} Prior to the challenged exchange between the prosecutor and Maxwell, Maxwell had already acknowledged that, on multiple occasions, he lied to the police both orally and in writing. (Tr. 490, 505-506, 524, 526-529) In fact, Maxwell acknowledged that he had told the police six different stories about what had happened on the night Frazier was killed, and that the version he told the jury on direct examination was story number seven. (Tr. 490-491) Maxwell also changed his story several more times throughout his cross-examination. (Tr. 492-493, 497, 500, 506-507, 511-517, 520-529). Therefore, the prosecutor was making a fair and accurate comment on the evidence already in the record. The prosecutor‘s comment was directly tied to, and supported by, the evidence. And, to the extent that the prosecutor‘s questioning may have been overly zealous or improper, it certainly did not rise to the level of creating such a defect in the proceedings that the outcome of the trial would have been different. Williams’ fourth assignment of error is overruled.
FAIN and FROELICH, JJ., concur.
(Hon. John R. Willamowski, Third District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
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