460 N.E.2d 625 | Ohio Ct. App. | 1983
Defendant-appellant, Luther David Johnson, appeals from his convictions of aggravated murder, aggravated burglary and aggravated robbery in the Franklin County Court of Common Pleas and raises seven assignments of error, as follows:
"1. The court erred in ruling that defendant-appellant's prior misdemeanor convictions for petty theft and attempted receiving stolen property would be admissible to attack his credibility.
"2. The court erred in permitting the state to present evidence of defendant-appellant's statement to the police as it amounted to an involuntary confession obtained in violation of his constitutional right to due process.
"3. The court erred in permitting the state to present evidence that the defendant-appellant had refused to take a polygraph, thereby violating his right against self-incrimination.
"4. The court erred in permitting the introduction of pictures of the deceased victim's body into evidence when the probative value of these pictures was substantially outweighed by the danger of unfair prejudice.
"5. The court erred in ruling that transcripts of prior inconsistent statements of the state's chief witness could not be admitted into evidence.
"6. The court erred in instructing the jury that the defendant could be found guilty as an aider or abettor if he associated himself with another for the purpose of committing a crime.
"7. The court erred in failing to instruct the jury as to all of the material elements of aggravated robbery as required by O.R.C. Section
This case involves the robbery and brutal murder of an elderly woman in her own home. There is no question but that defendant was present in the victim's home during the commission of the crimes, together with three other persons. Defendant, however, told the police that he was forced at gunpoint to go to the victim's house but did not participate *15 in the crimes and that, once inside the victim's home, he, defendant, was knocked unconscious.
In exchange for a promise that the murder and robbery charges against him would be dismissed, one of the participants in the crime agreed to testify against the other accomplices, including defendant, and to plead guilty to aggravated burglary. This accomplice, Michael Minnear, testified that his only involvement was to furnish transportation to the other three and he was to receive $300 or $400 for his participation, which he never received. He testified that he did not know about the murder until he read about it in the newspaper.
Apparently, defendant did make a statement to the police, which was introduced into evidence but is not included in the record on appeal. The record does not include any of the state's exhibits, the court reporter noting merely that these exhibits "are contained in the Franklin County Prosecutor's office," and neither party has seen fit to cause any of such exhibits to be made a part of the record on appeal.
Nevertheless, the police officers did testify as to the substance of the statement, indicating that defendant admitted being at the scene of the crime but contended that he was there because of duress, relating the means of entry, the intent to burglarize the house and the tying up of the victim. Defendant contends that he was then knocked unconscious and does not know what happened thereafter. Later, however, one of the accomplices other than Minnear told defendant what had happened.
A fellow inmate at the county jail testified that, while in jail, defendant admitted planning the burglary with his accomplices for several weeks, participating in the burglary and robbery and killing the victim. There was also evidence connecting defendant to the sale of two gold coins and a diamond pendant, which either he or his mother sold to a pawn shop, the pendant being identified as belonging to the victim, and the gold coins being like ones missing from the victim's home.
By the first assignment of error, defendant contends that the trial court erred in overruling defendant's motion in limine with respect to defendant's two prior misdemeanor convictions for petty theft and attempted receiving stolen property. Since a motion in limine does not finally determine the issue of admissibility, see State v. Spahr (1976),
The admissibility issue depends upon whether Evid. R. 609(A)(2) has superseded the common-law rule as announced in State v.Murdock (1961),
While there is some support for defendant's position in some federal cases, courts of some states have defined "dishonesty" in a much broader sense so as to include theft offenses. E.g.,Geisleman v. State (1980), ___ Ind. ___,
By the second assignment of error, defendant contends that the admission into evidence of his statement constitutes a denial of his constitutional rights. Prior to trial, a hearing was held upon defendant's request to suppress this statement, as to which defendant chose not to testify. This evidence indicates that defendant was given appropriate Miranda warnings (Miranda v.Arizona [1966],
By the third assignment of error, defendant contends that the trial court erred in permitting the state to present evidence that he had refused to take a polygraph test. While such evidence is not ordinarily admissible, defendant waived objection under the circumstances of this case. The state was quite willing to delete the last portion of defendant's statement, *17 which indicated that defendant offered to take a polygraph test,but insisted upon explaining that defendant never took one, if this portion remained in the statement. In essence, defense counsel was given a choice whether to exclude the entire statement concerning the polygraph or to permit evidence as to whether the polygraph was given. Defense counsel elected to have the entire statement come in, including the reference to the polygraph. While, as we indicated earlier, the statement itself is not in evidence before us, the following testimony does appear in the record:
"Q. Near the end of that statement was there any discussion about him [the defendant] taking a polygraph?
"A. Yes, there was.
"Q. And did he indicate he wanted to take one?
"A. He said at that time he did. He was told that we would have to get a disposition and we would proceed with it.
"Q. Did you try to set one up?
"A. Yes, and I was advised that his attorney advised him not to take one.
"Q. Well, one was never given?
"A. That is correct. One was not given."
No objection was made to this evidence at the time it was introduced. Under the circumstances, we find that the defendant waived objection to the testimony concerning the polygraph, and the third assignment of error is not well-taken.
By the fourth assignment of error, defendant contends that the trial court erred in admitting two photographs of the victim into evidence. As we have noted earlier, the record on appeal does not include these exhibits, no party having caused the state's exhibits to be included in the record on appeal. Nevertheless, whether to admit such photographs is a matter lying within the sound discretion of the trial court. State v. Hill (1967),
By the fifth assignment of error, defendant contends that the trial court erred in excluding written transcripts of prior inconsistent statements of a state's witness. These exhibits are included in the record on appeal. Defense counsel was allowed to examine the statements and to cross-examine the witness concerning them, and there is no suggestion that cross-examination was limited. Rather, defendant contends that the statements themselves should have been admitted pursuant to Evid. R. 613(B), as well as Evid. R. 612. Assuming that the trial court, within its discretion, could have admitted the transcript of the witness' prior testimony into evidence pursuant to either Evid. R. 612 or 613(B), it did not do so, making the issue whether the trial court abused its discretion. See Evid. R. 403.
The provision of Evid. R. 612 that the adverse party may introduce into evidence "* * * those portions [of a writing used to refresh memory] which relate to the testimony of the witness * * *" is necessarily limited in application to impeachment, and the rule must be read in pari materia with Evid. R. 613(B). Ordinarily, extrinsic evidence of a prior inconsistent statement of a witness, whether oral or written, is not admissible if the witness admits making the prior inconsistent statement.Blackford v. Kaplan (1939),
By the sixth assignment of error, defendant contends that the trial court erred in its instruction concerning aider and abettor. Specifically, defendant complains because the trial court charged: "A person who purposely * * * associates himself * * * with another with the purpose of committing a crime is regarded as if he were the principal offender and is just as guilty as if the person performed every act constituting the offense." Defendant contends that this instruction permits one to be convicted of a crime because of his mere presence at the scene, especially since the trial court stated further that: "This is true even if such person was not physically present at the time the crime was committed." We disagree, especially since the trial court went on to explain: "A person engaged in [a] common design with others to burglarize an individual of his property * * * may be, but is not necessarily presumed to acquiesce in whatever would be reasonably necessary to accomplish the object of their enterprise." In addition, the trial court went on to specifically charge with respect to aggravated murder that: "* * * [I]f under the circumstances it may be reasonably expected that the victim's life would be in danger by the manner and means of performing the criminal act conspired, each one engaged in the common design is bound by the consequences naturally or probably arising in its furtherance."
As this court has held on several occasions, the mere presence of a person during the commission of a crime does not make him an aider and abettor. Columbus v. Russell (1973),
By the seventh assignment of error, defendant contends that the trial court erred in its instruction on aggravated robbery. Since there was no specific objection to the instruction, defendant contends that the instruction as given by the trial court constitutes plain error. The trial court did inadvertently leave out the word "knowingly" from the instruction that a prerequisite of finding defendant guilty of aggravated robbery was that he "obtained or attempted to obtain property of some value." However, immediately following this instruction was the limitation "for the purpose of depriving the owner of that property." In other words, the complete instruction is that the defendant could be found guilty only if he obtained or attempted to obtain property belonging to another person for the purpose of depriving the owner of that property. It is improbable that one could have *19
that purpose unless he knowingly obtained or attempted to obtain the property, even though both "purpose" and "knowingly" are expressed in R.C.
For the foregoing reasons, all seven assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
STRAUSBAUGH and MOYER, JJ., concur.