526 N.E.2d 316 | Ohio Ct. App. | 1987
Lead Opinion
Defendant appeals his jury trial conviction for aggravated robbery, and the court's decision to enhance his sentence for a prior aggravated felony conviction. His counsel complains that (a) the verdict was contrary to the manifest weight of the evidence, and (b) the court enhanced his sentence without proof that he had counsel or waived counsel for the charge which produced the prior conviction.
In a separate pro se brief, the defendant argues that the court erred by (a) communicating with the jury when he and his counsel were absent, and (b) accepting a guilty verdict for aggravated robbery after it dismissed a penalty enhancement specification for possessing a firearm. All these contentions lack merit, so we affirm the trial court's judgment.
The cashier recalled that the defendant had been in the store once before. On this occasion, the defendant was wearing a woman's blond wig, a ski cap, and heavy eye makeup. The defendant put a handgun in the cashier's side and demanded the money in the cash drawer. The cashier gave him the money, and the robber ran from the store. The cashier then pressed an alarm button to summon police and telephoned the store manager.
The fourteen-year-old boy generally corroborated the cashier's testimony about the robber's appearance, but he could not identify the defendant as the robber. The boy was confident that the robber was a man because the robber had a three- to four-day growth of facial hair. Moreover, the boy found the robber's wig and ski cap a few blocks from the store in the direction that the robber had fled. The store manager testified that the cash register was $72 short when he arrived.
The defense sought to discredit the cashier's identification of the robber by showing that the cashier had difficulty in describing the robber to the police. However, the cashier selected the defendant's photograph from three pictures which an officer showed him about ten days after the robbery. Additionally, the cashier definitely identified the defendant as the robber at the defendant's preliminary hearing and at the trial.
The defendant's mother and sister testified that the defendant was playing cards with his sister and brothers at his mother's home when the robbery occurred. His mother said that she watched television while the defendant played cards in an adjoining room from 4:00 p.m. until after 10:00 p.m. His sister said that she played cards until approximately 6:00 p.m., and returned at 8:00 p.m. to find the defendant still playing. The store is approximately one mile from the defendant's mother's home.
Outside the jury's hearing, the defense *52 stipulated that the defendant had been convicted of the prior aggravated robbery charged in the indictment's penalty enhancing specification.
The credibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact.State v. DeHass (1967),
We cannot say that the cashier's identification was basically untrustworthy. Any inconsistencies in the state's evidence did not make it fundamentally incredible. Cf. State v. Mattison
(1985),
The defendant's sister and mother had an apparent bias for the defense. Moreover, his sister did not see him for two hours, beginning at the approximate time when the robbery occurred. His mother vouched for his presence during the time that she sat in an adjoining room. Neither of them told the police that the defendant was with them, after the police arrested him. The jury could properly reject the alibi testimony and believe the cashier's identification. The defendant's first contention lacks merit.
This court remanded McKinley for resentencing because the record failed to show that the defendant was afforded his right to counsel for the prior offense. The Supreme Court's reversal of this court's decision in the McKinley case, albeit on other grounds, greatly reduces its significance. Hence, we do not disturb our preference for consistency by reconsidering the language used in the McKinley opinion.
As we said in McKinley, an uncounseled conviction cannot ordinarily serve to enhance the penalty for a later conviction. See United States v. Tucker (1972),
However, the defendant has the burden of challenging an apparently constitutional prior conviction with some evidence that he was not afforded his right to counsel. Cf. Robards v.Rees (C.A. 6, 1986),
In this case, the indictment charged an earlier aggravated robbery conviction as a basis for penalty enhancement, pursuant to R.C.
Absent any evidence that the state obtained the prior conviction unconstitutionally, compliance with R.C.
A contrary rule would permit the defense to suggest numerous constitutional defects on appeal, without asserting them in the trial court. In that event, the state would have to disprove all possible constitutional defects for the prior conviction, in order to uphold the penalty enhancement. For example, the defendant could contest the penalty enhancement on appeal because the state failed to show that his guilty plea in a prior case was voluntary. He might also avoid enhancement by arguing on appeal that the state failed to prove his lawyer gave him effective assistance in the earlier case.
To the extent that this ruling differs from language inMcKinley, we adhere to our earlier decision in State v.Roundtree, supra, and modify the McKinley rule accordingly. We overrule defense counsel's second assigned error.
The defendant did not object to the language of that instruction when the court read it initially, and does not now object to its language. His sole objection is that the court read it to the jury on the second occasion, when neither he nor his counsel was present. We strongly discourage the court from entering the jury deliberation room for any purpose, and from communicating with jurors unless all parties are properly represented. Cf. State v. Williams (1983),
However, the court's error was harmless in this instance. The mere rereading of an unchallenged instruction in the absence of counsel or parties constitutes harmless error, where the record contains that entire uncontested *54
communication. See State v. Abrams (1974),
The jury found the defendant guilty of aggravated robbery, by committing a theft offense when he had a deadly weapon on or about his person. R.C.
Therefore, we overrule this last assigned error and affirm the defendant's conviction.
Judgment affirmed.
DYKE and CORRIGAN, JJ., concur.
Concurrence Opinion
In writing the opinion in State v. McKinley (Feb. 6, 1986), Cuyahoga App. No. 50016, unreported, reversed on other grounds (1986),
In a well-reasoned opinion, the Sixth Circuit concluded that (1) a silent record alone does not compel the conclusion that a defendant was unrepresented, and (2) such an argument can be waived if not properly and timely asserted by the defendant. Robards relied only upon the silence of the record. No evidence was submitted, or attempted to be submitted, by way of an affidavit or other sworn claim which would attest that he was not represented by counsel. Id. at 385. With such a record, the Sixth Circuit concluded that the court could not justifiably assume that the defendant had been denied a constitutional right. In the instant case, the issue was raised for the first time on appeal. With the advancement in the protection of the rights of an accused over the past twenty-five years, the presumption is great that substantially all indigent criminal defendants accused of a felony have been provided counsel in this state. The claim of a constitutional infirmity initially should be asserted by an accused in the trial court, providing an opportunity for that court to examine and rule on the issue.
The constitutional right to counsel is not affected by this decision and remains inviolate. Any felony conviction *55
obtained in violation of a defendant's right to counsel cannot be used to enhance the puhishment for another offense. The court inRobards relied on the conclusion that Lewis v. United States
(1980),