[Cite as State v. Williams, 2012-Ohio-4179.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

STATE OF OHIO                                      :
                                                   :     Appellate Case No. 24548
        Plaintiff-Appellee                         :
                                                   :     Trial Court No. 2009-CR-4183/1
v.                                                 :
                                                   :
KELLY D. WILLIAMS                                  :     (Criminal Appeal from
                                                   :     (Common Pleas Court)
        Defendant-Appellant                        :
                                                   :
                                                ...........

                                               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


of murder, aggravated robbery, and felonious assault, as well as accompanying firearms

specifications. On appeal, Williams contends that the trial court erred and he was deprived of

a fair trial because he was denied his constitutional right to effective assistance of counsel; the

trial court erred in admitting gruesome photographs and other inadmissible documents; the

trial court failed to investigate his claims that his counsel’s performance was unsatisfactory;

and he was deprived of a fair trial due to prosecutorial misconduct. For the reasons set forth

below, the judgment is affirmed.

       {¶ 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 Crim.R. 15 to depose a potential witness, Rodriguez Noel. (Docket

#31) The trial court denied the motion after finding that Williams had failed to satisfy the

necessary requirement of showing that Noel would likely be unavailable to testify at trial.

(Docket #52).

        {¶ 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
                                                                                            3


to state the reasons why he was dissatisfied with his court-appointed attorney. Williams

explained at the hearing that he did not feel that his counsel was necessarily doing a poor job,

but that there were things he wanted his counsel to do that had not been done. (1/18/11 Tr.

2-3, 5-6) However, at the conclusion of the hearing, Williams informed the court that he

wished to keep his attorney after all. (1/18/11 Tr. 4-6) The trial court formally overruled the

motion by Entry filed January 25, 2011.

       {¶ 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
                                                                                           4


suggested that they stage a robbery whereby Pinson would meet with Frazier under the guise

of selling him the marijuana, but then Williams would show up and pretend to rob Pinson

while actually robbing Frazier.    However, Williams was unable to obtain a gun, so he

arranged for another friend who had a gun, Maxwell, to contact Pinson and carry out the

planned robbery for him. All went according to plan until at some point, while Maxwell was

brandishing his gun at Pinson and Frazier, “everything went bad” and the situation got out of

control. (Tr. 312) Pinson threw his money at Maxwell, got out of the car and ran. Shortly

thereafter, Pinson heard the gunshots. Pinson further testified about what he did next, what

he told police when he came upon Frazier’s body at the crime scene, how he tried to cover up

what happened by claiming he and Frazier had been car-jacked by a stranger, and about what

ensued in the following months during the investigation. (Tr. 278-338).

       {¶ 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).
                                                                                              5


       {¶ 9}       For the defense, Williams’ brother and two of Williams’ friends testified as

alibi witnesses.    They all claimed that they had all been partying with Williams at his

apartment the entire evening of the murder, and that he had never left the premises. (Tr.

549-568).

       {¶ 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
                                                                                             6


Williams wherein he told his friend that he would “help you get free.” (Tr. 492) The letter

indicated that since Maxwell was in prison for life anyway, he might as well try to help

Williams, since Williams had “looked out for [Maxwell] a few times.” (Id.)

          {¶ 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.
                                                                                              7


                                  Fourth Assignment of Error

        [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
                                                                                                                                      8


falling below an objective standard of reasonable representation, and (2) prejudice – a

reasonable probability that but for counsel’s errors, the proceeding’s result would have been

different. Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three

of the syllabus. There is a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance and that strategy and tactical decisions exercised

by defense counsel are well within the range of professionally reasonable judgment and need

not be analyzed by a reviewing court.                                State v. Dillard, 173 Ohio App.3d 373,

2007-Ohio-5651, 878 N.E.2d 694, ¶ 73 (2d Dist.).

         {¶ 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 Crim.R.

15, asking the court for an order allowing a deposition to be taken of Rodriguez Noel. 1

(12/20/10 Motion for a Deposition, Docket #31). The motion alleged that Noel was “a

necessary and essential witness with material information,” and “that the deposition [was]

necessary to facilitate discoverable information which will lead to relevant and material

evidence to be used at trial.” (Id.). The trial court overruled the motion, because Crim.R.

15(A) requires a showing that a prospective witness is unavailable or prevented from attending

trial, and the trial court found that the motion failed to state “with specificity the reasons

[Williams] believed that the witness will not show at trial, i.e., what attempts have been made


1
  The motion indicated that “The State of Ohio has included gun specifications in the charges since the victim was allegedly killed
by a .38 caliber weapon that was owned and/or possessed by [Williams] after acquiring it from an individual named Rodriguez
Noel.” (12/20/10 Motion for a Deposition, Doc. #31).
                                                                                            9


to find the witness, what the witness has said about coming to court, etc.” (2/11/11 Decision,

Docket #52) Therefore, Williams contends that his counsel was ineffective in failing to file

an adequate motion and in failing to correct this “error.”

       {¶ 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 Crim.R. 15 deposition was

the only option available, and that the trial court would have allowed the deposition if his

counsel had written a better motion. There is nothing in the record that would support any of

those assumptions and Williams has not offered any argument or factual basis to indicate that

those claims have any validity. Perhaps the reason his counsel did not, as Williams argues,

“support his motion with facts” to support Noel’s unavailability, is because none existed.

From this record, it is impossible to determine.       Furthermore, from the wording of the

memorandum in support of the motion for a deposition, it appears that the true intent for

wanting to depose Noel was not because counsel feared Noel would be unavailable for trial,

but because he wished to use the deposition as a discovery tool. And, while depositions are

not a method for obtaining discovery in criminal cases, counsel’s attempt to utilize a

deposition as such does not, by itself, render counsel’s representation constitutionally

deficient. Williams has not shown that his counsel’s performance fell below an objective

standard of reasonable representation.

       {¶ 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,
                                                                                            10


the result of the proceeding would have been different.” Bradley at 142; Strickland at 694.

“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

 Id. In other words, a court making the prejudice inquiry must find that the defendant has

met his burden of showing that it is reasonably likely that the jury’s verdict would have been

different absent counsel’s alleged error. Bradley at 143, citing Strickland at 695-696.

       {¶ 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
                                                                                           11


of Counsel,” in which he suggested that his attorney was ineffective because “[f]ailure to raise

a relevant statutory defense is clearly constitutional ineffective assistance of counsel” and

because his counsel had not filed a “motion for identification” that Williams had asked his

counsel to file.    Williams argues that the trial court should have conducted a thorough

investigation of the complaints, but that appellate counsel “has found no hearing record on this

matter.” (Appellant’s Brief, p. 3).

       {¶ 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.
                                                                                         12


       {¶ 26}    We find Williams’ arguments concerning this issue to be without merit

because the trial court did seriously investigate Williams’ complaints and held a hearing on

the matter; there was no evidence of any incompetence, ineffectiveness, or any significant

breakdown in the attorney-client relationship; and, most importantly, Williams himself

decided that he wanted to continue with his appointed counsel.

       {¶ 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
                                                                                               13


unsuccessful tactical or strategic decisions will not constitute ineffective assistance of counsel.

 State v. Carter, 72 Ohio St.3d 545, 558, 1995-Ohio-104, 651 N.E.2d 965.

       {¶ 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
                                                                                          14


that there was a reasonable likelihood that the jury’s verdict would have been different had

counsel done, or not done, the things Williams sets out in this assignment of error. Williams’

third assignment of error is overruled.

       {¶ 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
                                                                                           15


arrange the deal; and (3) the records for the number Pinson had continuously called both

before and after the killing occurred. (Tr. 362-364, 371, 413) The jury was also already

aware, through Pinson’s testimony and the cell phone records themselves, that Pinson and

Williams exchanged phone calls throughout the day leading up to the robbery and shooting.

(Tr. 285-291, 309-312, 372-382) And, the jury was also already aware, through Pinson’s and

Detective Gaier’s testimony, that Pinson had given the police the phone number of the person

he had called to set-up the drug deal-turned-robbery. (Tr. 315, 361, 370).

       {¶ 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
                                                                                                             16


Orders amounted to “unfairly and impermissibly bolster[ing] the credibility of the State’s

witnesses” and amounted to a suggestion by the trial court that “Williams’ guilt was a

pre-determined fact.”                (Appellant’s Supplemental Brief, p. 9).

            {¶ 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.


 2
     Nor by appellate counsel, either, necessitating the submission of a supplement to the original brief.
                                                                                           17


       {¶ 40}    Nor do we find any merit in Williams’ contention that the Order finding that

there was “probable cause” to allow the detective to obtain the cell phone records somehow

amounted to the trial court suggesting that Williams’ guilt was a pre-determined fact. The

fact that there was “probable cause” that certain records might contain some evidence of guilt

was not a finding by the trial court that Williams was guilty. The trial court clearly informed

the jurors as to what constituted evidence in the case, and the fact that Williams “is presumed

innocent until his guilt is established beyond a reasonable doubt.” (Tr. 625).

       {¶ 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
                                                                                           18


normally be presumed to follow an instruction to disregard inadmissible evidence

inadvertently presented to it * * *”).

       {¶ 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 Evid.R. 403(A)

which provides: “Although relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or of

misleading the jury.”     This rule “manifests a definite bias in favor of the admission of

relevant evidence, as the dangers associated with the potentially inflammatory nature of the

evidence must substantially outweigh its probative value before the court should reject its
                                                                                               19


admission.”     (Emphasis added.)       State v. White, 4th Dist. Scioto No. 03CA 2926,

2004-Ohio-6005, ¶ 50.

       {¶ 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.
                                                                                          20


       {¶ 47}    Furthermore, Williams appears to erroneously base his argument upon the

standard that is used in capital cases (see Williams’ citations to Morales), where a stricter

evidentiary standard for gruesome photographs exists.         See Frazier, supra.      “To be

admissible in a capital case, the probative value of each photograph must outweigh the danger

of prejudice to the defendant and, additionally, not be repetitive or cumulative in nature.”

(Emphasis added.) State v. Morales, 32 Ohio St.3d at 259.

       {¶ 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
                                                                                           21


application of Evid.R. 403 in non-capital cases. Williams’ second assignment of error is

overruled.

                   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,
                                                                                            22


2000-Ohio-187, 739 N.E.2d 300. Prosecutorial misconduct cannot be made a ground for

reversible error unless, in view of the entire case, the conduct was so egregious as to deny the

defendant a fair trial. State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987).

       {¶ 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
                                                                                           23


Maxwell were not in the context of telling the jury who and what they should believe, but they

were in the context of confronting Maxwell himself with his admitted lies.            Here, the

prosecutor was questioning Maxwell concerning his truthfulness, asking, “[a]nd 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?” Maxwell then replied, “No.” It was up to the jury to

decide who to believe.      The prosecutor’s question sought information relevant to the

witness’s credibility. See State v. D'Ambrosio, 67 Ohio St.3d 185, 193, 1993-Ohio-170, 616

N.E.2d 909; State v. Slagle, 65 Ohio St.3d 597, 606, 605 N.E.2d 916 (1992) (during

cross-examination, the prosecutor was merely aggressively questioning the witness about his

honesty and his intent).

       {¶ 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.
                                                                                        24


       {¶ 56}    Having found no error prejudicial to the Appellant herein in the particulars

assigned and argued, we affirm the judgment of the trial court

                                       .............

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).


Copies mailed to:

Mathias H. Heck
Andrew T. French
Anthony S. VanNoy
Hon. Frances E. McGee
