2005 Ohio 2630 | Ohio Ct. App. | 2005
{¶ 3} R.C.
{¶ 4} The record shows that the requirements of R.C.
{¶ 5} Moreover, we reject Davis' contention that the court's finding of waiver was invalid. The court first asked counsel if it was Davis' intention to waive a jury trial. When counsel replied in the affirmative, the court next asked Davis "[i]s it your intention to waive a jury trial?" Davis replied, "[y]es, it is."
{¶ 6} Absent specific requirements like those listed in Crim.R. 11, the manner in which the court determines the validity of a waiver is quite flexible. In State v. Foust,
{¶ 7} "Although the trial court did not fully advise Foust of all the implications of his jury waiver, `there is no requirement for a trial court to interrogate a defendant in order to determine whether he or she is fully apprised of the right to a jury trial.' State v. Jells (1990), 53 Ohio State v. Jells (1990),
{¶ 8} Under the circumstances, Davis' signed jury waiver form and his acknowledgment that he wished to waive a jury were sufficient to permit the court to conclude that Davis knowingly and voluntarily wished to waive a jury trial. The court did not need to engage in any further inquiry.
{¶ 10} Evid.R. 607(A) states, "the credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage."
{¶ 11} "Affirmative damage can be shown if the party's own witness' testimony contradicts, denies, or is harmful to that party's trial position." State v. Stearns (1982),
{¶ 12} The court did not abuse its discretion by permitting the state to impeach Mitchell. Undoubtedly, Mitchell's recalcitrant testimony contradicted the statements he made to the police immediately after the offense. On that basis alone, the state would have shown affirmative damage to the case since Mitchell downplayed the events leading up to the stabbing in such a way as to call into question the entire basis for the state's case.
{¶ 13} It is true that a non-harmful neutral answer, such as "I don't know" or "I can't remember" does not show affirmative damage, as such answers fail to contradict or deny a prior statement. See, e.g., Statev. Keenan (1993),
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Cooney, P.J., and McMonagle, J., Concur.