[Cite as State v. Williams, 2011-Ohio-5385.]


                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 95748



                                       STATE OF OHIO
                                                 PLAINTIFF-APPELLEE

                                                  vs.

                                 DEANDRE WILLIAMS
                                                 DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-528916

        BEFORE:           Cooney, J., Stewart, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: October 20, 2011
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ATTORNEY FOR APPELLANT

Jeffrey F. Kelleher
1540 Leader Building
526 Superior Avenue
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Brent C. Kirvel
Sherrie S. Royster
Assistant County Prosecutors
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




COLLEEN CONWAY COONEY, J.:

      {¶ 1} Defendant-appellant,   Deandre    Williams   (“Williams”),   appeals   his

convictions for murder and having a weapon under disability. We find no merit to the

appeal and affirm.

      {¶ 2} In September 2009, Williams was charged with murder in violation of R.C.

2903.02(A) and having a weapon under disability in violation of R.C. 2941.141(A). The
                                           3

charges included one- and three-year firearm specifications. The case proceeded to a

jury trial where the following evidence was presented.

       {¶ 3} On September 11, 2009, the victim, Deontae Williams (“Deontae”), was

attending an outdoor party in the front yard at 959 Eddy Road when Williams arrived with

his friends Joseph Shephard (“Shephard”) and Dennis Watkins (“Watkins”). Almost

immediately, Williams, Shephard, and Deontae began to fight and, within minutes,

Deontae was shot in the back. He died as result of this single gunshot wound. Williams

admitted he caused the gun to fire but claimed it accidently discharged during the

“tussle.”

       {¶ 4} At the conclusion of trial, a jury found Williams guilty of murder with the

firearm specifications, and the court found him guilty of having a weapon under

disability. The court sentenced Williams to 15 years to life in prison for murder plus an

additional three years for the firearm specifications, to be served consecutively. It also

sentenced Williams to three years for having a weapon under disability to be served

concurrently with the murder conviction.

       {¶ 5} Williams appeals, raising seven assignments of error, which we address out

of order.

                       Sufficiency and Manifest Weight of the Evidence
                                            4

       {¶ 6} In the fifth and sixth assignments of error, Williams argues the evidence

was insufficient to support the murder conviction and that the murder conviction was

against the manifest weight of the evidence.

       {¶ 7} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Thompkins, 78 Ohio St.3d 380, 390,

1997-Ohio-52, 678 N.E.2d 541.        The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt. State v.

Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 942, paragraph two of the syllabus.

       {¶ 8} A challenge to the manifest weight of the evidence attacks the verdict in

light of the State’s burden of proof beyond a reasonable doubt. Thompkins at 386-387. A

reviewing court may reverse the judgment of conviction if it appears that the trier of fact

“clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.” Id. A finding that a conviction was supported

by the manifest weight of the evidence necessarily includes a finding of sufficiency. Id. at

388.

       {¶ 9} Williams contends “no rational trier of fact could find that the essential

element, ‘purposely cause the death,’ was proven beyond a reasonable doubt.”             He

claims there is simply no evidence that Williams purposely caused Deontae’s death.
                                            5

       {¶ 10} Several of Williams’s friends testified that Williams offered Deontae a

friendly handshake when he arrived, but Deontae rebuffed him and reached for a gun in

his waistband.    Fearing that Deontae might shoot them, Williams tried to grab the gun

from Deontae and, as they struggled, the gun discharged accidently.      However, several

other unbiased witnesses told a different story.

       {¶ 11} Two teenage neighbors, who observed the shooting from their front porch

testified that Williams arrived with his friends and crossed the street to the party. One of

the teenagers described them as follows:

       “They was looking like they was up to something * * * a car pulled up and the way
       they was looking, I’m like that don’t look right.”

       {¶ 12} Another witness testified that five seconds elapsed between the time the

men exited their car and then “attacked” Deontae.         Neither witness mentioned any

attempt at a friendly handshake.

       {¶ 13} One of the teenagers further explained that she immediately went into the

house when she saw them approach Deontae because she “thought they were going to

shoot.”   When she peered from the window moments later, she saw “one of them had

him in a headlock. All of sudden two of them had moved away and the gun shot went

off and he fell.” This testimony suggests that Williams’s friends knew that Williams

was going to shoot because they moved out of harm’s way just in time. The teenager

also believed the gunshot “was * * * through the back.”
                                            6

       {¶ 14} Brandy Anderson (“Anderson”), another independent witness, corroborated

the teenagers’ story.     She and her friend Taleema Townes (“Townes”) were on their

way to a restaurant and stopped briefly at the party because Townes needed to use the

restroom. Anderson, who did not know anyone at the party, waited in the car, which

was parked in the driveway of 959 Eddy Road. While she was waiting, she heard

Williams’s car arrive.    She explained that Deontae was alone by the curb when two to

three men surrounded him and grabbed him “by his neck and they were strangling him.”

She testified, “It was quick.    I heard car doors open.    I heard people talk loud, and

immediately someone said he got a gun.”      By the time she heard about the gun, the men

were already choking him and “he was off the ground.” A moment later, he was shot in

the back.

       {¶ 15} Further, Williams’s claim that Deontae tried to pull the revolver from his

waistband prior to the fight is not supported by the objective findings of the State’s

forensic witnesses.     Curtis Jones (“Jones”), a trace evidence expert with the coroner’s

office, testified that he found no trace metal on Deontae’s hands after conducting a trace

metal detection test.    If Deontae had handled a metal object, such as the revolver, there

would be trace metal found on his hands.

       {¶ 16} Jones also testified that he found blast destruction and fouling on Deontae’s

shirt that indicated the gun was in contact with the fabric of his shirt when it fired. The

gunshot penetrated Deontae’s upper left side of his back, one inch from his spine. The
                                            7

coroner testified that the bullet traveled straight through to his chest and perforated his

aorta and heart and stopped under the skin of his chest. It is hard to imagine how an

accidental shot could have occurred at this angle and in this location of Deontae’s back.

       {¶ 17} Moreover, during the State’s cross-examination of Williams’s girlfriend,

Ebony Foster (“Foster”), the State played excerpts of recorded conversations Foster had

with Williams while he was in the county jail.     In one excerpt, he confessed, “I’m not

trying to sugarcoat anybody. I’m the man that pulled the trigger.” Pulling the trigger

indicates an intentional act rather than an accident.   Although Williams claimed he was

trying to grab the gun when it accidently discharged, the record is replete with evidence

from unbiased witnesses and a confession from Williams himself, indicating that he

purposefully pulled the trigger and killed Deontae.

       {¶ 18} Therefore, the fifth and sixth assignments of error are overruled.

                              Cross-Examination of State Witnesses

       {¶ 19} In the first assignment of error, Williams argues the trial court deprived him

of a fair trial by permitting the State to cross-examine some of its own witnesses. In the

third assignment of error, Williams argues he was deprived of a fair trial as a result of

prosecutorial misconduct involving the impeachment of the State’s own witnesses and the

impugning of defense counsel.       Williams contends the prosecutor improperly used

leading questions during direct examination of certain witnesses to suggest that they
                                            8

conspired to give false evidence. He claims this tactic violated the rules of evidence and

his right to due process.

       {¶ 20} The decision to allow leading questions in the direct examination of a

witness is within the trial court’s discretion. Ramage v. Cent. Ohio Emergency Serv.,

Inc., 64 Ohio St.3d 97, 1992-Ohio-109, 592 N.E.2d 828, paragraph six of the syllabus.

Generally, a party must show that a witness is either hostile or identified with the adverse

party in order for the court to permit leading questions on direct examination. The ability

of counsel to cross-examine its own witness by the use of leading questions is governed

by Evid.R. 611(C), which states:

       “Leading questions should not be used on the direct examination of a witness
       except as is necessary to develop his testimony. Ordinarily leading questions
       should be permitted on cross-examination. When a party calls a hostile witness, an
       adverse party, or a witness identified with an adverse party, interrogation may be
       by leading questions.”

       {¶ 21} Williams argues the trial court should not have allowed the State to use

leading questions to interrogate its own witnesses because there was no showing of

hostility or surprise. Traditionally, a “hostile witness” is one who surprises the calling

party at trial by turning against him while testifying. The traditional “hostile witness” is

addressed under Evid.R. 607.

       {¶ 22} An “adverse witness” is one who identifies with the opposing party because

of a relationship or a common interest in the outcome of the litigation. State v. Dolce

(1993), 92 Ohio App.3d 687, 703, 637 N.E.2d 51. Evidence of a long-term relationship
                                           9

between a witness and the defendant or another reason for a strong affinity between a

witness and defendant may be a sufficient basis for a court to allow the state to ask

leading questions of a witness on direct examination. Id.; State v. Stearns (1982), 7 Ohio

App.3d 11, 14, 454 N.E.2d 139. However, a prosecutor may not use leading questions to

impeach the witness with prior inconsistent statements, absent a showing of surprise or

affirmative damage. State v. Warren (1990), 67 Ohio App.3d 789, 588 N.E.2d 905.

       {¶ 23} The test regarding prosecutorial misconduct is whether the prosecutor’s

remarks were improper and, if so, whether they prejudicially affected substantial rights of

the accused. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166,

¶121, citing State v. Smith (1984), 14 Ohio St.3d 13, 14, 470 N.E.2d 883.              The

touchstone of this analysis “is the fairness of the trial, not the culpability of the

prosecutor.” Id., quoting Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 71

L.Ed.2d 78.    An appellate court should not deem a trial unfair if, in the context of the

entire trial, it appears clear beyond a reasonable doubt that the jury would have found the

defendant guilty even without the misconduct. State v. Treesh, 90 Ohio St.3d 460, 464,

2001-Ohio-4, 739 N.E.2d 749.

       {¶ 24} We agree that the State impeached some of its own witnesses by showing

that they had met and discussed Williams’s case with defense counsel before making

statements to police. The State further discredited these witnesses and corroborated its

conspiracy theory by playing recordings of jailhouse phone conversations between
                                          10

Williams and Foster in which Foster told Williams that Shephard did not follow their

instructions and gave an incriminating statement. In another conversation, Williams told

Foster what his friends should say in their statements and testimony. He instructed

Foster as follows:

       “Basically you can tell him he didn’t see that. You know what I’m say’in? * * *
       but basically * * * ya know robbery gone bad ya what I say’in and then he didn’t
       see that part.

       **

       “Alright look, when you talk to him tell him um that the word on the street is that
       they was try’in they was gonna rob me but you know how to get the people to
       come forward and say it but I will be able to. When I get out I be able to get
       them to come forward.”

       {¶ 25} The State also called one witness, Marcus Apernathy (“Apernathy”), who

was not present at the party and did not witness the shooting. The State called Apernathy

for the sole purpose of establishing the conspiracy to provide false evidence because he

had no personal knowledge of the facts surrounding the shooting.           Using leading

questions, the State established that Apernathy met with Williams’s lawyer before

volunteering a statement to police about what he had heard about the shooting.

       {¶ 26} Furthermore, although these witnesses had a long-standing friendship with

Williams, they cooperated with the State during interrogation. Shephard was the only

witness who provided a prior inconsistent statement. Because none of the testimony

surprised the State or caused affirmative damage, we agree the State’s impeachment of its
                                             11

own witnesses violated Evid.R. 611(C) and was improper. However, we find the error

harmless.

       {¶ 27} Crim.R. 52(A), which governs harmless error, provides that“[a]ny error,

defect, irregularity, or variance which does not affect substantial rights shall be

disregarded.” Crim.R. 52(A). Overcoming harmless error requires a showing of undue

prejudice or a violation of a substantial right.

       {¶ 28} As previously explained, the record is replete with evidence establishing

that Williams purposely pulled the trigger and killed Deontae.            The two teenage

neighbors and Anderson were unbiased witnesses who were not “friendly” with either

Deontae or Williams. Their testimony corroborates one another and demonstrates that

Williams immediately attacked Deontae upon his arrival on the scene. Their testimony

further indicates that Williams’s associates moved out of harm’s way just before the shot

was fired, suggesting they knew it was coming. Moreover, Williams admitted pulling

the trigger. Thus, even if the State had not called any of Williams’s friends as witnesses

or suggested that they conspired to testify to the same false story, the jury would still have

found Williams guilty beyond a reasonable doubt.

       {¶ 29} Therefore, the State’s impeachment of its own witnesses, even if error or

misconduct, was harmless.

       {¶ 30} Accordingly, the first and third assignments of error are overruled.
                                           12

                               Lesser Included Offense Instruction

       {¶ 31} In his second assignment of error, Williams argues the trial court deprived

him of a fair trial by not charging the jury on the lesser included offense of voluntary

manslaughter.

       {¶ 32} If a requested instruction contains a correct statement of the applicable law

and is appropriate under the facts, the instruction must be included, at least in substance.

State v. Nelson (1973), 36 Ohio St.2d 79, 303 N.E.2d 865, paragraph one of the syllabus.

However, the corollary of this maxim is also true. The trial court must not instruct the

jury where there is no evidence to support the instruction. Riley v. Cincinnati (1976), 46

Ohio St.2d 287, 348 N.E.2d 135, paragraph two of the syllabus; Murphy v. Carrollton

Mfg. Co. (1991), 61 Ohio St.3d 585, 591, 575 N.E.2d 828. “In reviewing a record to

ascertain the presence of sufficient evidence to support the giving of an * * * instruction,

an appellate court should determine whether the record contains evidence from which

reasonable minds might reach the conclusion sought by the instruction.” Feterle v.

Huettner (1971), 28 Ohio St.2d 54, 275 N.E.2d 340, at syllabus.

       {¶ 33} “‘[T]he evidence presented in a particular case is irrelevant to the

determination of whether an offense, as statutorily defined, is necessarily included in a

greater offense.’” State v. Barnes, 94 Ohio St.3d 21, 26, 2002-Ohio-68, 759 N.E.2d 1240,

quoting State v. Kidder (1987), 32 Ohio St.3d 279, 282, 513 N.E.2d 311. However, the

evidence in a particular case is relevant in determining whether a trial judge should
                                          13

instruct the jury on the lesser included offense. If the evidence is such that a jury could

reasonably find the defendant not guilty of the charged offense, but could convict the

defendant of the lesser included offense, then the judge should instruct the jury on the

lesser offense. State v. Shane (1992), 63 Ohio St.3d 630, 632-633, 590 N.E.2d 272.

      {¶ 34} Williams contends the trial court erred in giving a lesser included offense

instruction on involuntarily manslaughter, but not voluntary manslaughter. Voluntary

manslaughter is not a lesser included offense but an inferior degree of murder, because

“‘its elements are * * * contained within the indicted offense, except for one or more

additional mitigating elements * * *.’” State v. Deem (1988), 40 Ohio St.3d 205, 209, 533

N.E.2d 294; State v. Rhodes (1992), 63 Ohio St.3d 613, 617, 590 N.E.2d 261. Even

though voluntary manslaughter is not a lesser included offense of murder, the test for

whether a judge should give an instruction on voluntary manslaughter when a defendant

is charged with murder is the same test to be applied as when an instruction on a lesser

included offense is sought. Rhodes at 617. Thus, a defendant charged with murder is

entitled to an instruction on voluntary manslaughter when the evidence presented at trial

would reasonably support both an acquittal on the charged crime of murder and a

conviction for voluntary manslaughter. Deem at 211; State v. Thomas (1988), 40 Ohio

St.3d 213, 216, 533 N.E.2d 286. However, when the evidence presented at trial does not

meet this test, a charge on the inferior-degree (or lesser included) offense should not be

given. Kidder at 282-283.
                                            14

       {¶ 35} Voluntary manslaughter is defined in R.C. 2903.03(A) as follows:

       {¶ 36} “No person, while under the influence of sudden passion or in a sudden fit

of rage, either of which is brought on by serious provocation occasioned by the victim

that is reasonably sufficient to incite the person into using deadly force, shall knowingly

cause the death of another[.]”

       {¶ 37} Before giving a jury instruction on voluntary manslaughter in a murder

case, the court must determine whether there was evidence that the victim sufficiently

provoked the defendant to warrant such an instruction. Shane at paragraph one of the

syllabus. “The trial judge is required to decide this issue as a matter of law, in view of the

specific facts of the individual case. The trial judge should evaluate the evidence in the

light most favorable to the defendant, without weighing the persuasiveness of the

evidence.” Id. at 637, citing State v. Wilkins (1980), 64 Ohio St.2d 382, 388, 415 N.E.2d

303. “An inquiry into the mitigating circumstances of provocation must be broken down

into both objective and subjective components.” Shane at 634.

       {¶ 38} When determining whether provocation was reasonably sufficient to induce

sudden passion or sudden fit of rage, the court must apply an objective standard. Id.

“For provocation to be reasonably sufficient, it must be sufficient to arouse the passions

of an ordinary person beyond the power of his or her control.” Id. at 635. On the other

hand, if insufficient evidence of provocation is presented so that no reasonable jury would

decide that the victim reasonably provoked the defendant, the court must, as a matter of
                                          15

law, refuse to give a voluntary manslaughter instruction. Shane at 634. The subjective

component of the analysis requires an assessment of whether the defendant was actually

under the influence of sudden passion or in a sudden fit of rage. Id. “Fear alone is

insufficient to demonstrate the kind of emotional state necessary to constitute sudden

passion or fit of rage.” State v. Mack, 82 Ohio St.3d 198, 201, 1998-Ohio-375, 694

N.E.2d 1328. Mere words also do not constitute sufficient provocation in most situations.

Id. at 637.

       {¶ 39} Viewing the evidence in a light most favorable to Williams, we find there

was insufficient evidence that Williams was acting under the influence of sudden passion

or in a sudden fit of rage. Williams’s friends suggested that he was afraid because

Deontae was retrieving a weapon from his waistband.              However, fear alone is

insufficient to demonstrate the kind of emotional state necessary to constitute sudden

passion or a sudden fit of rage. Id. Moreover, Williams never claimed he was provoked

into a sudden fit of rage but rather claimed it was an accident. Therefore, the trial court

properly denied the requested instruction on voluntary manslaughter.

       {¶ 40} The second assignment of error is overruled.
                                           16

                     Ineffective Assistance of Counsel and Cumulative Error

       {¶ 41} In his fourth assignment of error, Williams argues he was denied his Sixth

Amendment right to the effective assistance of counsel. He contends his trial counsel

was ineffective for failing to object when necessary, failing to move for a mistrial after

the State improperly impeached its own witnesses, and failing to seek a voluntary

manslaughter instruction. In his seventh assignment of error, he argues cumulative errors

deprived him of a fair trial. We address these two assigned errors together.

       {¶ 42} The United States Supreme Court established a two-pronged test for

ineffective assistance of counsel. Strickland v. Washington (1984), 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674. First, the defendant must show that counsel’s performance

was outside the range of professionally competent assistance and, therefore, deficient. Id.

at 692.    Second, the defendant must show that counsel’s deficient performance

prejudiced the defense and deprived the defendant of a fair trial.        Id.   A defendant

establishes prejudice if “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.             A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

       {¶ 43} Pursuant to the cumulative error doctrine, the existence of multiple errors,

which may not individually require reversal, may violate a defendant’s right to a fair trial.

 State v. Madrigal, 87 Ohio St.3d 378, 397, 2000-Ohio-448, 721 N.E.2d 52, citing State
                                            17

v. DeMarco (1987), 31 Ohio St.3d 191, 509 N.E.2d 1256. To find cumulative error, we

first must first find multiple errors committed at trial and determine that there is a

reasonable probability that the outcome below would have been different but for the

combination of the harmless errors.       State v. Williams, Cuyahoga App. No. 94261,

2011-Ohio-591, ¶25.

       {¶ 44} Although Williams’s trial counsel did not state a continuing objection to the

State’s impeachment of its own witnesses, we determined that error, by itself, was

harmless in light of the overwhelming evidence of guilt. The motion for mistrial was

based on the same error and is, therefore, also harmless. Because the evidence presented

at trial did not warrant a jury instruction on voluntarily manslaughter, counsel was not

ineffective for not pursuing such an instruction, and there was also no error in the court’s

failure to give the instruction.   Therefore, we find Williams was not deprived of his

right to a fair trial and the outcome of the trial would not have been different if defense

counsel had objected and moved for a mistrial.

       {¶ 45} Accordingly, the fourth and seventh assignments of error are overruled.

       Judgment affirmed.

       It is ordered that appellee recover of appellant 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
                                         18

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.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR
