Final/Special Meal:

Three pieces of fried chicken, spaghetti with meat sauce, potato salad, cherry pie with strawberry ice cream and cola.

Final Words:

"My heart was seeking a sense of fairness and a dose of justice, but it was not to be," Bryant-Bey said, clutching a rosary. He also made an extensive statement claiming he was framed "based on false evidence" by Lucas County law enforcement officials. He read his final words from a hand-written two page statement.

ClarkProsecutor.org

Killer executed for stabbing Toledo store owner

By Andrew Welsh-Huggins - Akron Beacon Journal

AP Nov 19, 2008

LUCASVILLE: Ohio today executed a man for the 1992 stabbing death of a collectibles store owner in Toledo, the state's second execution in as many months. Gregory Bryant-Bey, 53, died by lethal injection at 10:41 a.m. at the Southern Ohio Correctional Facility in Lucasville.

In a three-minute final statement, Bryant-Bey said he'd been framed, convicted on the basis of false evidence and had had poor legal help. ''My brothers and sisters, what can be done to prevent sisters and brothers from being framed?'' he said.

Bryant-Bey's execution proceeded after the U.S. Supreme Court on Tuesday denied his request for a 60-day reprieve. He had wanted more time to present additional information about his case to Gov. Ted Strickland, who denied clemency Tuesday.

Bryant-Bey was the second inmate put to death in Ohio since the end of an unofficial national moratorium on executions that began last year while the U.S. Supreme Court reviewed Kentucky's lethal injection procedure.

Bryant-Bey was convicted in the Aug. 9, 1992, robbery and killing of Dale Pinkelman, who owned a sports collectibles and coin shop.

He also faced a death penalty in the Nov. 2, 1992, killing of Peter Mihas, owner of The Board Room restaurant in downtown Toledo. After police arrested Bryant-Bey for Mihas' death, similarities between the two crimes led to charges in Pinkelman's slaying. A jury recommended life in prison for Bryant-Bey in the Mihas killing.

No mercy for Toledo killer, parole board says

By Jim Provance - Toledo Blade

Friday, October 24, 2008

COLUMBUS - The Ohio Parole Board yesterday found "no compelling reason'' to recommend Gov. Ted Strickland show mercy to Gregory Bryant-Bey in the 1992 robbery and murder of a Toledo merchant.

Bryant-Bey, 53, faces lethal injection on Nov. 19 for killing Dale Pinkelman, 48, whose body was found lying face up, a single stab wound in his chest, on the floor of his shop, Pinky's Collectibles.

Bryant-Bey was also convicted in the similar murder almost three months later of Pete Mihas, 61, owner of downtown Toledo's Board Room restaurant. He received a life sentence for that murder, but the evidence from that case subsequently helped convict him of the earlier Pinkelman murder.

The killer's attorneys made little effort during his clemency hearing to argue that he was not guilty and instead focused largely on his upbringing. They argued that he'd been abandoned by his Toledo mother at a young age and was left with an abusive godmother in New York. They described an incident when, at a young age, he ran away and tried to walk home to Toledo.

His mother eventually retrieved him from New York, returned him to Toledo, and left him with an ex-husband, who was not his father, and his family.

The argument didn't sway the board, which pointed to the testimony given during the hearing of Bryant-Bey's half-sister, Ruth Williamson-Bey. She tearfully told the board that she'd asked her father to bring Bryant-Bey to their home after she learned of his existence.

"In fact, testimony and information presented indicated that after Bryant-Bey returned to Toledo at the age of 13, he was able to adjust adequately and conform to societal norms, and experienced a more stable family life,'' reads the board's report. "The board also notes that Gregory L. Bryant-Bey does not accept full responsibility for the crimes of conviction,'' it reads. "The board finds that the death sentence in this case is fair and just and is not disproportionate when compared to similar cases.''

Members of the board had noted during the hearing that Ms. Williamson-Bey had managed to overcome her own substance abuse problems while her brother had not. "I was disappointed that they didn't give more weight to the childhood that ended up creating this,'' said Ohio Assistant Public Defender Rachel Troutman, who argued the killer's case before the board.

"I was a little puzzled by the belief that he ended up able to adjust to societal norms,'' Ms. Troutman said. "I think they misunderstood. Ruth had her share of problems as a result of her childhood, so if that's the more stable family life they're talking about, I don't understand how it could be used against him,'' she said.

The seven members of the board who participated in the hearing were all in agreement against recommending clemency.

Board member Jim Bedra did not participate. As a former victim advocate in Lucas County, he'd previously had some involvement with victims in the case. The ninth seat on the board is vacant.

Bryant-Bey's attorneys have asked the governor to commute his death sentence to life in prison without parole. As an alternative, they'd asked for a 90-day reprieve to further examine evidence in the case.

Unless Mr. Strickland rejects the board's recommendations or a court unexpectedly intervenes, Bryant-Bey would be transported the roughly 250 miles from death row at the Ohio State Penitentiary near Youngstown to the Southern Ohio Correctional Facility in Lucasville before his execution date.

"His legal counsel will consider all relevant aspects of the case and provide the governor with that totality of information, and then he will do the same,'' Strickland spokesman Keith Dailey said. "His judgments are made on a case-by-case basis,'' he said.

Toledo killer breathes his last; Second execution in month

By Alan Johnson - Columbus Dispatch

November 20, 2008

LUCASVILLE, Ohio -- A few minutes after Gregory Bryant-Bey was executed yesterday, Jay Clark, the son-in-law of one of his victims, offered his perspective. "This is a difficult day," Clark said. "There aren't any winners on either side."

What was satisfied, however, was Ohio law, which was carried out when the double-murderer was pronounced dead at 10:41 a.m. at the Southern Ohio Correctional Facility.

Bryant-Bey, 53, the second Ohioan executed in a little more than month, paid the ultimate penalty for killing Dale "Pinky" Pinkelman, 47, owner of a Toledo collectibles store, on Aug. 9, 1992. He also was convicted for the stabbing death of restaurant owner Pete Mihas, 61, three months later, but he received a life sentence in that case.

"We're thankful this event brings closure to the senseless murders of Dale Pinkelman and Pete Mihas," Clark said, calling the victims "brave, hardworking family men. ... We'll cherish the memories we have and the lessons they taught us."

But with his last breaths, Bryant-Bey protested that he was framed by Lucas County prosecutors, lawyers and law-enforcement investigators. He said they used "invisible evidence" to trump up a conviction and obtain the death penalty.

After the lethal-injection shunts were inserted into both arms, Bryant-Bey, clutching a rosary, entered the Death Chamber at 10:22 a.m. He smiled and made a two-finger peace sign to his half brother, the Rev. Elton Williamson; public defender Rachel Troutman; and his spiritual adviser, Stephen Sparling, all of whom witnessed the execution from behind glass about 10 feet away.

He repeatedly mouthed a question to his brother and attorney that was inaudible to media witnesses (which included The Dispatch). However, his brother later said he was asking, "Where's Darlene?" in reference to his sister, Darlene Hines, who he expected was going to witness his death. She did not attend.

Calm and smiling frequently, Bryant-Bey lifted his head off the table to read his last words, a two-page statement handwritten on lined paper that was held in front of him by a corrections officer. "My heart was just seeking a sense of fairness and a dose of justice, but it was not to be." He concluded: "My heart calls out to God, 'Come get me on the double.' "

The toxic chemicals began flowing through tubes into Bryant-Bey's veins about 10:30 a.m. Two minutes later, he blinked several times and his mouth gaped open. After that, he lay motionless. His eyes remained partially open as he died.

The curtain to the chamber was drawn closed at 10:40 a.m., prompting deep sobs from Williamson, pastor of the Increased Ship of Zion Church in Detroit.

Williamson was composed when he spoke later to reporters. "This was not punishment. This was murder," he said. "The same thing that he was convicted of, the state of Ohio did to him." Williamson said his conversations with his younger brother in recent days focused on "living the life after this one." "I'm sad, but at the same time I'm proud of my brother. He went bravely."

Williamson said Bryant-Bey told him he was innocent. "He looked at me right in the eyes and said he didn't do that, and I believed it."

Nevertheless, his guilt was easily established in both cases. Bryant-Bey's attorneys had urged Gov. Ted Strickland to spare his life, arguing that he was twice abandoned as a child by his birth mother, was neglected and beaten by his adoptive mother, and never met his real father.

How can a framed man be mad at anyone but himself? Being born again I expect to see God and His kingdom because to die due to Tom Ross, Keefe Snyder and Dale Roach fabricating evidence to allow Joe Solomon to knowingly use false evidence to obtain a conviction and then use that conviction as an aggravating circumstance to subject me to the death penalty.

Mr. Ron Wingate allows clients to be convicted with false evidence, he will get the trial court to grant: motion to make the state's evidence available for independent testing, but, instead of utilizing an independent expert, he will piggy-back documents from the prosecution and fail to comply with his own request, cheating clients out of their Constitutional rights to confrontation and authentication. He has been admonished but not disciplined, nor will he because he does not remember the case.

My brothers and sisters wonder what can be done to protect their sisters and brothers and children and friends from being framed, lied on and convicted on invisible evidence. We have to pray that they live a life consistent with the truth and love doing right.

My heart was just seeking a sense of fairness and a dose of justice but it was not to be. Just like when a witness for the state testifies "that 2 young men were seen in the victim's automobile" yet Mr. Wingate "objects" because he failed to investigate the matter. Having one trial lawyer who fails to investigate, one disbarred and then to have a post-conviction lawyer disbarred speaks of my representation and my lack of effective assistance of counsel especially when at clemency the lack of knowledgeable counsel not only hampered me it further condemned me. Eight days after a clemency hearing I was allowed lawyers and the court refused to let them be effective or useful.

Killer clutches rosary, says he was framed

By Alan Johnson - Columbus Dispatch

November 19, 2008

LUCASVILLE, Ohio - Double-murderer Gregory Bryant-Bey of Toledo was executed this morning for a crime he committed 16 years ago.

Bryant-Bey, 53, of Toledo, was lethally injected at the Southern Ohio Correctional Facility near Lucasville, drawing his last shallow breath just before 10:41 a.m. He was the second Ohioan put to death this year and the 28th since the state resumed capital punishment in 1999.

"My heart was seeking a sense of fairness and a dose of justice, but it was not to be," Bryant-Bey said, his last words as he lie on the lethal injection table, clutching a rosary.

He also made an extensive statement claiming he was framed "based on false evidence" by Lucas County law enforcement officials. He read his final words from a hand-written two page statement.

Bryant-Bey was convicted for the stabbing deaths of Dale "Pinky" Pinkelman, 47, and Pete Mihas, 61, during a three-month span in 1992. He was sentenced to death for Pinkelman's murder, but got life in prison for the Mihas killing.

His guilt was easily established in both cases. Still, Bryant-Bey's attorneys had urged Strickland to spare his life, arguing he was twice abandoned as a child by his birth mother, was neglected and beaten by his adoptive mother, and never met his real father. As a child, he had just two emotions, "fear and anger," they said.

Strickland rejected clemency yesterday afternoon and the U.S. Supreme Court turned down his appeal late last night.

Pinkelman, a father of six, was found stabbed in the chest in his Toledo collectibles shop on Aug. 9, 1992. Mihas, a Greek immigrant who owned the Board Room restaurant in Toledo, was murdered, also with a knife, in the parking lot of his business about three months later.

A look at death row inmate's timeline

Cleveland Plain Dealer

AP 11/18/2008

Timeline of events in the death penalty case of Gregory Bryant-Bey:

_Aug. 9, 1992 — Bryant-Bey stabs and kills Dale Pinkelman, owner of sports collectibles and coin shop. The store's cash register is cleaned out.

_Nov. 4, 1992 — Bryant-Bey stabs and kills Toledo restaurant owner Peter Mihas in a downtown parking lot. An empty money bag is found nearby.

_June 8, 1993 — Jury finds Bryant-Bey guilty in death of Mihas.

_June 10, 1993 — Bryant-Bey is sentenced to life in prison for killing Mihas.

_Nov. 11, 1993 — At second trial, Bryant-Bey is convicted of killing Pinkelman.

_Dec. 22, 1993 — Bryant-Bey is sentenced to death for Pinkelman's slaying.

_Oct. 22 — Ohio Parole Board unanimously recommends that governor deny clemency.

_Nov. 18 — Bryant-Bey asks U.S. Supreme Court for 60-day reprieve; Gov. Ted Strickland denies Bryant-Bey clemency.

On 8/9/92, Gregory L. Bryant-Bey murdered 48-year-old Dale Pinkelman in Pinky's Collectibles in Toledo. Dale was the owner of the retail store. Bey stabbed Dale Pinkelman in the chest, stole merchandise from the store and took his car.

He was also convicted in a similar murder of Peter Mihas, owner of The Board Room restaurant in downtown Toledo. It was the similarity between the two murders that ultimately led to the death sentence. Both men were stabbed in the chest. Their pants were removed and their shoes were lined up next to their bodies. Bryant-Bey was convicted first and sentenced to life in prison with the possibility of parole for the murder of Mr. Mihas. Evidence from that case later helped to convict him in the Pinkelman murder.

Police officers in Toledo, Ohio, responded to the scene of an apparent murder/robbery. At the scene, the body of Dale Pinkelman was lying on the floor of his store, Pinkelman’s Collectibles, dead from a single stab wound to the chest. Pinkelman’s body was in a peculiar state — his pants and shoes had been removed, such that he was lying in his underwear and socks. His shoes were placed neatly next to his body, but his pants were missing and, in fact, were never recovered.

The police discovered valuable items on Pinkelman’s person, including a gold necklace, rings, and two watches, but there were other items of value for which the police could not account, including merchandise from the store, cash from the register, and Pinkelman’s car from the parking lot. The police also discovered a fingerprint and a palm print on a glass display case approximately three feet from Pinkelman’s body, for which they could not identify an owner. Despite the peculiar circumstances of the crime and the promising discovery of the finger- and palm prints, the police had no suspect for the apparent murder/robbery and no solid leads.

A few months later, in November 1992, the police found the body of Peter Mihas on the ground outside his restaurant, the Boardroom Restaurant, dead from several stab wounds to the chest. Mihas’s pants had been removed and his shoes were placed neatly next to his body. His jewelry remained on his person. Toledo Detective William Gray immediately recognized the similarities between the Mihas murder/robbery and the unsolved Pinkelman case.

An informant alerted police of Bey’s possible involvement with the Mihas murder and when the police confronted Bey with evidence of his guilt, he confessed to murdering and robbing Mihas. Due to the unusual similarities of the crime scenes, the police compared Bey’s finger- and palm prints to the unidentified prints found on the glass display case in Pinkelman’s store. The prints matched. The police also found Pinkelman’s car less than two blocks from Bey’s residence.

Armed with this evidence, the police questioned Bey concerning the Pinkelman murder. Bey initially denied that he knew Pinkelman and denied having ever been in his store, but later, Bey admitted that he had purchased a watch from Pinkelman’s store on credit. Bey also told the police that he had returned to the store and asked Pinkelman for more time to pay for the watch, but Pinkelman had refused and demanded payment. When the officers asked Bey if he had ever harmed Pinkelman or taken his car, Bey replied that he did not remember and asked to terminate the questioning.

The grand jury returned a four-count indictment, charging two counts of aggravated murder and two counts of aggravated robbery. The aggravated-murder charges each contained the same specification, namely, aggravated murder in the course of an aggravated robbery, which, if found beyond a reasonable doubt, would render Bey eligible for the death penalty under Ohio law. Bey moved to sever the trials, so that the Mihas charges (he had confessed to) would be tried separately from the Pinkelman charges. The court granted the motion.

The State prosecuted the Mihas murder first. The jury convicted Bey of both counts — aggravated murder with the corresponding specification, and aggravated robbery — and recommended life imprisonment with eligibility for parole after thirty years. At the conclusion of the trial on the Pinkelman murder, the jury convicted Bey on all counts and specifications, and recommended a sentence of death.

DECISION AND JUDGMENT ENTRY

This case is an appeal from a judgment of the Lucas County Court of Common Pleas. Appellant, Gregory Bryant-Bey, is appealing his conviction and sentence for one count of aggravated murder in violation of R.C. 2903.01(B) and one count of aggravated robbery in violation of R.C. 2911.01. For the reasons discussed below, we affirm the decision of the trial court.

The facts of this case are as follows. On the morning of November 3, 1992, employees of the Boardroom Restaurant arrived at work and discovered the body of the Boardroom's owner, Peter Mihas, in a parking lot behind the restaurant. Mihas had received several knife wounds that were later determined to be the cause of death.

Toledo police officers, summoned to the scene, observed that Mihas had received stab wounds to his back, chest and arms and that a knife was still embedded in his chest. His pants and shoes had both been removed and were lying next to the body. Also lying next to the body was an empty bank deposit bag. Upon questioning restaurant employees, the officers were told that the knife was from the restaurant.

On the evening of November 3, 1992, Bryant-Bey requested a room at the Riverview Inn, paying the desk clerk with a $100 bill for the room. Bryant-Bey also inquired about buying the desk clerk's automobile indicting that he had $1,100 in cash on him. Further, Bryant-Bey requested that a bellman take $500 in cash to his wife at a local church. The Riverview Inn desk clerk, noting that Bryant-Bey had large sums of money on him and knowing that Mihas had been murdered earlier that morning, contacted a friend of his who was an officer with the Toledo Police Department.

Subsequently, Detective Tom Ross of the Toledo Police Department determined that Bryant-Bey was a possible suspect in the murder of Mihas. At approximately noon on November 4, 1992, Officer Ross along with other Toledo police officers went to Bryant-Bey's hotel room at the Riverview Inn to execute two arrest warrants for misdemeanor theft. The police officers went to the door of Bryant-Bey's hotel room, knocked on the door and announced they were police. No answer was received but the officers heard movement within the hotel room. The officers instructed the hotel maintenance man to use a pass key to open the door. The officers then entered the room and informed Bryant-Bey he was under arrest. Bryant-Bey requested that the police officers gather up several items of clothing, including a pair of black pants, which were lying on the floor of the hotel room and take them to the police station.

Bryant-Bey was taken to the interrogation room of the police station while the black pants were deposited in a separate homicide investigation room. He was immediately searched while in the interrogation room and $1,160 in cash was found in one of his socks. Officers counted the money in front of Bryant-Bey, filled out an inventory form and sealed the money in an envelope. Bryant-Bey then waited in the interrogation room approximately four hours prior to being interrogated by Officer Ross.

While Bryant-Bey was waiting in the interrogation room, police officers inspected the black pants that had been placed in the homicide investigation room. Police officers noted a yellow paint stain on the black pants that was similar to a paint stain that was found on Mihas' pants. A chemical analysis was per formed on the paint stains which indicated that the stains from both Mihas and Bryant-Bey's pants were similar.

At approximately 5:30 p.m., Officer Ross began his interrogation of Bryant-Bey. Officer Ross first read Bryant-Bey his Miranda rights. Bryant-Bey stated he understood, wished to waive his rights and signed a waiver form. Bryant-Bey initially told Officer Ross that he had nothing to do with Mihas' murder and was in a different part of the city on the night in question. Further, he stated to Officer Ross that the money found in his sock and the money with which he paid for the room at the Riverview Inn was won through gambling.

Officer Ross next asked Bryant-Bey to explain how the paint found on his pants was the same as the paint found on Mihas' pants. Bryant-Bey stated he could not explain how the paint on both his pants and Mihas' pants was the same. Officer Ross then suggested to Bryant-Bey that perhaps Mihas may have left his restaurant with the knife in his hand and that “things might have gotten a little out of hand back there behind [the restaurant].”

At this point, Bryant-Bey changed his statement and told Officer Ross that he was present at the time of Mihas' death. He stated that while he was urinating behind the restaurant, Mihas confronted and threatened him. Bryant-Bey stated that Mihas had a knife, that the two men struggled and that Mihas accidentally fell on his knife.

Somewhere between 8:00 and 8:30 p.m., the interrogation was stopped for a thirty-minute to one-hour break. During the break, police officers provided Bryant-Bey with dinner. After the break, police officers showed Bryant-Bey the waiver form concerning his Miranda rights that he had previously signed. Police officers asked Bryant-Bey if he understood his Miranda rights and he replied that he did. During the second half of the interrogation, Bryant-Bey explained that Mihas may have received the knife wounds to both his chest and back by rolling over after falling on his knife. He also admitted going through Mihas' wallet before he left the scene; however, he could not explain how Mihas' pants were removed. The interrogation was completed at approximately 10:00 p.m.

Subsequently, Bryant-Bey was indicted by the grand jury on one count of aggravated murder and one count of aggravated robbery. Before trial, Bryant-Bey filed a motion to suppress the evidence obtained when he was arrested and to suppress the statements he made during the interrogation. A hearing was held on the motion to suppress which the trial court denied. The case proceeded to trial with the jury returning guilty verdicts on both counts. Bryant-Bey was subsequently sentenced to a term of imprisonment.

It is from such judgment that Bryant-Bey raises the following eight assignments of error:

“1. THE TRIAL COURT COMMITTED SUBSTANTIAL PREJUDICIAL AND REVERSIBLE ERROR IN FAILING TO SUPPRESS EVIDENCE SEIZED BY THE POLICE AS A RESULT OF THEIR ILLEGAL ENTRY INTO APPELLANT'S HOTEL ROOM IN VIOLATION OF APPELLANT'S STATUTORY AND CONSTITUTIONAL RIGHTS.

“2. THE TRIAL COURT COMMITTED SUBSTANTIAL, PREJUDICIAL AND REVERSIBLE ERROR IN FAILING TO SUPPRESS EVIDENCE SEIZED BY THE POLICE AT APPELLANT'S HOTEL ROOM IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS.

“3. THE TRIAL COURT COMMITTED SUBSTANTIAL, PREJUDICIAL AND REVERSIBLE ERROR IN FAILING TO SUPPRESS EVIDENCE SEIZED BY THE POLICE AT THE POLICE STATION IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS.

“4. THE TRIAL COURT COMMITTED SUBSTANTIAL, PREJUDICIAL AND REVERSIBLE ERROR IN FAILING TO SUPPRESS APPELLANT'S STATEMENTS TO THE POLICE AT THE POLICE STATION IN THAT THE STATEMENTS WERE INVOLUNTARILY MADE IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS.

“5. THE TRIAL COURT COMMITTED SUBSTANTIAL, PREJUDICIAL AND REVERSIBLE ERROR IN FAILING TO SUPPRESS APPELLANT'S STATEMENT TO THE POLICE AFTER THE BREAK IN THAT APPELLANT DID NOT WAIVE HIS MIRANDA RIGHTS IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS.

“6. THE TRIAL COURT COMMITTED SUBSTANTIAL, PREJUDICIAL AND REVERSIBLE ERROR IN ADMITTING GRUESOME PHOTOGRAPHS OF THE VICTIM.

“7. APPELLEE'S REMARKS DURING ITS REBUTTAL CLOSING ARGUMENT CONSTITUTES PREJUDICIAL CONDUCT SUFFICIENT TO REQUIRE REVERSAL OF APPELLANT'S CONVICTIONS.

“8. APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IF IT IS HELD THAT APPELLANT'S TRIAL COUNSEL WAIVED THE FIRST ASSIGNMENT OF ERROR.”

* * *

As his fourth assignment of error, Bryant-Bey argues that the trial court erred in failing to suppress the statement he gave during the first half of his interrogation. He argues that his statement was involuntary and therefore in violation of his Fifth Amendment privilege against self-incrimination.

It is well-settled law that a totality of the circumstances test is used in determining whether a statement is voluntary. State v. Brewer (1990), 48 Ohio St.3d 50, 58; Oregon v. Bradshaw (1983), 462 U.S. 1039, 1045. Under such test a court is to consider “the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment, and the existence of threat or inducement.” Brewer at 58.

First, Bryant-Bey argues that his statement was involuntary since it was given because of deceptive police practices. He argues that Detective Ross knowingly made a false statement concerning the origin of the knife used to stab Mihas in order to elicit his statement. Bryant-Bey further argues that when Detective Ross suggested a possible scenario about how the crime was perpetrated it created an atmosphere of coercion or duress such as to render his statement involuntary.

Detective Ross suggested to Bryant-Bey that Mihas may have come out of his restaurant carrying a knife resulting in an altercation between the two men. It was immediately after Detective Ross suggested this scenario that Bryant Bey admitted that there had been a confrontation between himself and Mihas. Bryant-Bey explained that Mihas, carrying a knife, had observed him urinating behind the restaurant and threatened him. Bryant-Bey further stated that during the ensuing scuffle, Mihas fell on his knife.

Detective Ross did not make a knowingly false statement concerning the origin of the knife. Detective Ross at the time of the interrogation believed that Mihas had been stabbed by a knife taken from his restaurant. It was not until after the interrogation that police learned that the knife had not come from the Boardroom restaurant. Further, we fail to see how Detective Ross's suggestion of a possible explanation of the crime rendered Bryant Bey's subsequent statement involuntary. Therefore, we do not find that Detective Ross's suggested scenario constitutes coercion, duress or a deceptive police practice.

Second, Bryant-Bey argues that police should have inferred from his moment of silence that he wished to end the interrogation. We do not find that a moment of silence, without more, suggests a defendant's unwillingness to continue with an interrogation. As the Ohio Supreme Court stated in State v. House (1978), 54 Ohio St.2d 297, 299

“When there is no specific request to terminate questioning by the defendant during an in custody interrogation which is commenced only after the defendant has been informed of his Miranda rights and executed a written waiver thereof, the defendant's right to cut off questioning is scrupulously honored and his incriminatory statement is not the product of an unlawful in custody interview merely because he remained silent to certain questions during the interview.” (Emphasis added.)

Therefore, we find Bryant-Bey did not indicate that he wished to end the interrogation.

Third, Bryant-Bey argues that the length of the interrogation rendered his statement involuntary. He also argues the fact that he was not allowed to leave the interrogation room for nine hours and was not allowed any contact with anyone other than police during the interrogation tainted the voluntariness of his statement. Bryant-Bey also argues that he was “awarded” with his dinner only after he had admitted to meeting with Mihas.

Upon review of the record, we find Bryant-Bey was given his Miranda rights, understood those rights and chose to waive them before making a statement. He was then questioned for approximately two and one-half hours after waiting for five hours in the interrogation room. Further, the record discloses that Bryant-Bey never asked to speak with anyone else during the interrogation nor did he ever ask to leave the interrogation room. Further, there is no evidence that he was given a meal only after he admitted to an encounter with Mihas.

We do not find there is any evidence that police practiced any type of coercive or threatening behavior nor that police subjected Bryant-Bey to the length or manner of interrogation which would render his statement involuntary. Therefore, the trial court did not err in denying the motion to suppress the statement made to Detective Ross. Accordingly, the fourth assignment of error is found not well-taken.

* * *

As his seventh assignment of error, Bryant Bey argues that the prosecutor's remarks made during closing arguments constituted prejudicial error. Specifically, Bryant Bey argues that comments about defense counsel, comments about matters not in evidence and comments concerning the prosecutor's own personal opinion of Bryant Bey's guilt were improper.

In State v. Smith (1984), 14 Ohio St.3d 13, 14, the Ohio Supreme Court held that “[t]he test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant.” Further, in order to sustain a conviction, “it must be clear beyond a reasonable doubt that, absent the prosecutor's comment, the jury would have found the defendant guilty.” Id. at 15. In State v. Spinks (1992), 79 Ohio App.3d 720, 731, the court listed several factors to be considered regarding prosecutorial misconduct as follows: “(1) the nature of the remarks, (2) whether an objection was made by counsel, (3) whether corrective instructions were given by the court, and (4) the strength of the evidence against the defendant.”

The prosecutor commented several times concerning defense counsel's theory of the case as follows: “[defense counsel] will be doing cartwheels out of this courtroom if you buy any of this stuff,” “this ludicrous story of self-defense or accident,” “[defense counsel] is trying to sell you this bill of goods that it was an accident” and “[defense counsel] had very little to work with in preparation of a defense.” Assuming prosecutorial misconduct, we find beyond a reasonable doubt that even absent these statements the jury would have found Bryant-Bey guilty.

Further, the prosecutor stated that Mihas was “a very good, local businessman who works hard for his living.” However, the trial court sustained the ensuing objection and immediately admonished the jury that it must “decide this case not based upon sympathy, prejudice, or bias.” We find these instructions, immediately following the prosecutor's sole reference to Mihas' character rendered the remark harmless beyond a reasonable doubt.

Finally, the prosecution twice remarked “We know it's this defendant.” However, this remark referred to the fact that Bryant-Bey was present when Mihas was killed, as evidenced by Bryant-Bey's statement to the police. The prosecutor went on to state that the issue for the jury to decide was whether Mihas' death was an accident (defense counsel's theory of the case) or was murder. When taken in context, it is clear that the prosecutor was not expressing his personal belief as to Bryant-Bey's guilt. Accordingly, we find the seventh assignment of error not well taken. As his eighth assignment of error, Bryant-Bey argues that he was denied the effective assistance of counsel. Specifically, Bryant-Bey argues that his trial counsel was ineffective for failing to argue, at the motion to suppress, that police initially entered his hotel room in violation of R.C. 2935.12(A), the “knock and announce” rule. It was under the first assignment of error that Bryant-Bey challenged the legality of police officers' entry into his hotel room.

In Strickland v. Washington (1984), 466 U.S. 668, the United States Supreme Court held that to establish a claim of ineffective assistance of counsel in violation of the Sixth Amendment, a two-part test must be satisfied. First, it must be shown that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. Second, it must be shown that counsel's deficient performance prejudiced the defendant, i.e., that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 691. The Ohio Supreme Court has repeatedly followed the two-part test of Strickland in determining the issue of ineffective assistance of counsel. See, e.g., State v. Cooperrider (1983), 4 Ohio St.3d 226, 228; State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus.

As we discussed under the first assignment of error, the record shows that police officers were excused from compliance with R.C. 2935.12(A) do to exigent circumstances. Therefore, we find that trial counsel's performance did not fall below an objective standard of reasonableness nor did Bryant-Bey suffer any prejudice as a result of trial counsel's decision not to pursue this issue. Accordingly, the eighth assignment of error is found not well-taken.

On consideration whereof, the court finds that the defendant was not prejudiced or prevented from having a fair trial, and the judgment of the Lucas County Court of Common Pleas is affirmed. This cause is remanded to said court for execution of sentence. It is ordered that appellant pay the court costs of this appeal.

HANDWORK, GLASSER and RESNICK, JJ., concur.

State v. Bryant-Bey, Not Reported, 2000 WL 770131 (6th Cir. 2000) (PCR)

This is an appeal from a judgment of the Lucas County Court of Common Pleas that denied appellant's petition for postconviction relief. For the reasons that follow, this court affirms the judgment of the trial court.

Appellant sets forth the following assignments of error:

“FIRST ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN DENYING MR. BRYANT-BEY'S MOTION TO VACATE OR SET ASIDE SENTENCE.

“SECOND ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED WHEN IT DETERMINED THAT PETITIONER FAILED TO PRODUCE EVIDENCE, WHICH IF TRUE, WOULD ENTITLE HIM TO RELIEF.”

The facts that are relevant to the issues raised on appeal are as follows. On November 19, 1993, a jury found appellant guilty of aggravated robbery and aggravated murder. On December 22, 1993, the trial court sentenced appellant to death for the aggravated murder conviction and fifteen to twenty-five years for the aggravated robbery conviction. Appellant appealed his convictions and this court affirmed the trial court in all respects. State v. Bey (Sept. 19, 1997), Lucas App. No. L-94-003, unreported. The Supreme Court of Ohio upheld appellant's convictions and sentences in State v. Bey (1999), 85 Ohio St.3d 487, 709 N.E.2d 484.

On September 20, 1996, appellant filed a petition for postconviction relief. In his petition, appellant asserted two arguments based on a claim of ineffective assistance of trial counsel and asked the court for an evidentiary hearing. Appellant first argued that trial counsel were ineffective because they were hindered by the inadequate analysis submitted by the psychologist who testified at mitigation. In his second argument, appellant asserted the more general claim that counsel were ineffective because they failed to recognize and cure deficiencies during the mitigation phase of the trial. Appellant asserted that the evidence of counsel's ineffectiveness did not become apparent until a second psychologist hired by appellant's new counsel for purposes of postconviction relief provided a different diagnosis of appellant.

On October 31, 1997, the trial court denied appellant's petition. The trial court found that the claims raised by appellant could have been raised on direct appeal and are therefore barred by res judicata. The trial court also found that appellant had failed to provide the court with evidence which, if true, would entitle him to relief. After finding that appellant had not presented sufficient grounds for relief, the trial court denied appellant's request for a hearing.

In support of his first assignment of error, appellant asserts that the trial court erred by ignoring the evidence and denying his request for a hearing. Appellant further argues that the trial court erred by finding that his claims could have been raised on direct appeal and are therefore barred by res judicata.

Pursuant to R.C. 2953.21, a criminal defendant seeking to challenge his conviction through a petition for postconviction relief is not automatically entitled to a hearing. State v. Calhoun (1999) 86 Ohio St.3d 279, 282, 714 N.E.2d 905. Before granting an evidentiary hearing on the petition, the trial court shall determine whether there are substantive grounds for relief (R.C. 2953.21[C] ), i.e., whether there are grounds to believe that “there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States.” R.C. 2953.21(A)(1). The Supreme Court of Ohio has held that, in the interest of judicial economy, it is not unreasonable to require the defendant to show in his petition for postconviction relief that such errors resulted in prejudice before a hearing is scheduled. See State v. Jackson (1980), 64 Ohio St.2d 107, 112, 413 N.E.2d 819.

The trial court in this case reviewed the evidence submitted with appellant's petition, which consisted of an affidavit and an evaluation prepared by a newly-retained psychologist, and found that the issue of ineffective assistance of counsel could have been resolved on direct appeal. The Supreme Court of Ohio has held that res judicata may bar a petition for postconviction relief where the defendant raises a claim of ineffective assistance of counsel and where the defendant was represented by a different attorney at the appellate level. State v. Cole (1982), 2 Ohio St.3d 112, 443 N.E.2d 169. The record in this case reveals that appellant was represented by different counsel on appeal.

Upon consideration of the record, this court finds that the issues of the competence of Dr. McIntyre, the expert witness at the mitigation phase of the trial, as well as trial counsel's claimed ineffectiveness in offering her testimony, could have been raised on appeal without benefit of the second psychologist's evaluation and affidavit. A postconviction petition does not show ineffective assistance merely because it presents a new expert opinion that is different from that presented at trial. State v. Jamison (Nov. 10, 1992), Hamilton App. No. C-910736, unreported. Although Dr. Ort, the psychologist retained for the postconviction evaluation, presented her own assessment of appellant, she did not assert that the original evaluation was erroneous. Dr. Ort's evaluation, while highly detailed, did not in any way criticize the original evaluation or cite possible deficiencies or flaws in Dr. McIntyre's report. Based on the foregoing, we find that the evidence submitted by appellant in support of postconviction relief was no more than cumulative or alternative to the evidence presented at trial and that appellant's claim could have been raised on direct appeal. We therefore find that the trial court did not err by finding that appellant's petition was barred by res judicata and denying the request for a hearing. Accordingly, appellant's first assignment of error is not well-taken.

Based on our finding that appellant's claims on postconviction relief are barred by res judicata, this court further finds that appellant's specific arguments as to ineffective assistance of counsel under his second assignment of error are moot.

On consideration whereof, this court finds that appellant was not prejudiced and the judgment of the Lucas County Court of Common Pleas is affirmed. Costs of this appeal are assessed to appellant.