239 N.E.2d 100 | Ohio Ct. App. | 1968
Dominic P. Senzarino, Jr., Clyde C. Perod, Frank Albert Scunzio and Peter A. Costello, Jr., were jointly indicted, in case No. 8564, upon a charge that on August 21, 1966, they did unlawfully, with instruments, attempt to force entrance in a safe, the property of the Cove Bar, Inc., wherein was contained money and other things of value, in violation of the provisions of Section
Cases Nos. 8564 and 8583 were consolidated. Frank Albert Scunzio waived trial by jury, and Peter A. Costello, Jr., was granted a separate trial.
Prior to trial, Clyde C. Perod filed a motion for an order granting him a separate trial, which motion the court overruled.
Dominic Senzarino and Clyde Perod were jointly tried upon the two counts, and the jury returned verdicts finding each guilty as charged upon each count. Motions for new trial were overruled, and each was sentenced upon each count, with the sentences of Dominic Senzarino to be served consecutively and the sentences of Clyde Perod to be served concurrently.
These appeals on questions of law are from the judgments and sentences entered following the jury verdicts finding each defendant guilty as charged. *117
One of the errors assigned by the defendant Clyde Perod is that he was prejudiced by the court's refusal to grant him a separate trial. The defendant Dominic P. Senzarino, Jr., did not request a separate trial.
Section
"When two or more persons are jointly indicted for a felony, except a capital offense, they shall be tried jointly unless the court, for good cause shown on application therefor by the prosecuting attorney or one or more of said defendants, orders one or more of said defendants to be tried separately."
The motion filed by defendant Clyde Perod for a separate trial reads as follows:
"Now comes the defendant, Clyde C. Perod, by his attorney, and moves the court for an order granting him a separate trial in this cause for the following reasons:
"1. That he would be unable to secure a fair trial if he were compelled to stand trial with the co-defendant herein;
"2. That the weight and inflammatory nature of the evidence against some of the co-defendants may adversely effect this defendant;
"3. That there is a significant disparity in the age and background of this defendant and that of some of the co-defendants.
"4. That in the presentation of his own defense, this defendant contemplates calling one or more of the co-defendants to testify. Unless this defendant is tried separately from the other defendants herein, it is unlikely that the other defendants will take the witness stand and offer testimony on behalf of this defendant, with the resultant deprivation of testimony from material witnesses.
"Wherefore, the movant sincerely urges the court to eliminate the prejudicial effect of the joinder of the defendants herein and grant him a separate trial."
The court's journal entry upon the motion reads:
"This cause came on to be heard this 13th day of October upon the motion of the defendant, Clyde C. Perod, for a separate trial. Upon consideration whereof, said *118 motion is overruled with exceptions of the defendant noted."
Counsel for the defendant stated in argument before this court that such motion was presented without any testimony or evidence being offered at the hearing. Had there been testimony offered, in the absence of a bill of exceptions, it would be impossible for us to know what the trial court considered in passing upon the motion.
Counsel for defendant Clyde Perod takes the position that it was not necessary to offer testimony in support of the motion. He asserts that prejudice is established merely by the allegations contained in the motion and especially by the assertion that he contemplated calling one or more of the co-defendants to testify. Whether defendant Dominic P. Senzarino was one of the co-defendants whom he wished to call as a witness was not specified in the motion, but with the overruling of the motion for a separate trial, under the provisions of the
When two or more persons are jointly indicted for a capital offense, Section
The defendant in his brief filed in this court cites the case of United States v. Echeles,
"* * * At this juncture, we hold merely that, having knowledge of Arrington's record testimony protesting Echeles' innocence, and considering the obvious importance of such testimony to Echeles, it was error to deny the motion for a separate trial. * * *"
The court then further pointed out the fact that the government was permitted to introduce into evidence the incriminatory admissions of Arrington taken from the transcript of a prior narcotics trial while an objection was sustained precluding Echeles from reading into evidence Arrington's statements protesting the innocence of Echeles contained in the same transcript. Also, see State v. Abbott,
It is easy to see why the courts abused their discretion *120
in refusing Echeles and Abbott separate trials under the circumstances existing in each case, but upon its facts the case at bar must be distinguished from United States v. Echeles,
The case at bar is analogous to the case of Smith v. UnitedStates,
"* * * Both Smith and Lott claim error in the denial of their respective motions for separate trials. Rule
"Smith directs our attention to no specific prejudice resulting from his trial jointly with Lott. [Footnote 8 on page 38: "Although Lott's counsel mentioned in jury argument that only Smith had actual possession of the heroin, this would have been apparent were Smith tried alone. Lott's prior narcotics convictions which Smith feared would prejudice him `simply by virtue of his association,' were never revealed to the jury. All other allegations of prejudice to Smith are hypothetical only."] Lott argues that the joint trial denied him the opportunity to call Smith as a witness for the purpose of explaining his possession. An intention of the movant to have his codefendant testify has never been considered ground of severance. This is especially true where, as here, any prejudice resulting from the joint trial is merely speculative. Lott has neither shown *121 nor asserted that (1) Smith's version of the facts would have any exculpatory effect, or that (2) Smith would more likely testify were he tried separately. We do not conjecture abuses of discretion."
Rule
"If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires."
In the case of State v. Abbott,
"`While it is generally a matter of discretion with the court as to whether a separate trial shall be granted, such discretion is not arbitrary but should be so exercised as to prevent injustice, wherever possible. * * *'"
In the instant case, Clyde Perod did receive a separate trial from Frank Scunzio and Peter A. Costello, Jr., and Peter A. Costello, Jr., was called and did testify. Frank Albert Scunzio, who waived trial by jury, could have been called to testify but Clyde Perod did not call him as a witness. Clyde Perod in his motion for separation stated that he contemplated calling one or more of the co-defendants to testify. He did not specifically specify that he contemplated calling Dominic Senzarino, with whom he was jointly tried. Co-defendant Dominic Senzarino not only did not take the witness stand but he had refused to talk from the time of his arrest. There were no admissions or confessions by Dominic Senzarino to be put into evidence, and at trial there was no evidence offered relative to his character or past record, if any.
If defendant Clyde Perod did contemplate calling Dominic Senzarino as a witness, he failed to disclose or proffer the purpose for which he might wish to call him or to what he might expect that Dominic Senzarino would or *122 could testify that might in any way be beneficial. The record shows a request by motion for a separate trial but a total failure to show cause. We will not conjecture an abuse of discretion by the trial court.
To grant to defendant Clyde Perod a separate trial, upon the record in this case, would require the granting of a separate trial to all defendants merely upon their request, but such is not the law under either the Constitution of the United States, the Constitution of Ohio or the Ohio statute.
For the reasons stated, we find no error in the court's order overruling the motion of Clyde Perod for a separate trial.
The next assigned error we will consider pertains only to the defendant Dominic Senzarino.
Relative to Clyde Perod testifying and Dominic Senzarino not taking the witness stand, the court instructed the jury as follows:
"On the trial of a criminal cause, a person charged with an offense may at his own request be a witness, but not otherwise. He cannot be compelled to testify. If a defendant testifies, his testimony is to be weighed by the same rules that apply to other witnesses, as heretofore instructed. You may not reject his testimony if you believe it to be true simply because he is a defendant."
The defendant Dominic Senzarino timely requested, in writing, that the court further instruct the jury as follows:
"The failure of any defendant to take the witness stand and testify in his own behalf does not create any presumption against him; the jury is charged that it must not permit the fact to weigh in the slightest degree against any such defendant, nor should this fact enter into the discussions or deliberations of the jury in any manner."
The trial court refused to thus further instruct the jury, and such refusal has been assigned as error.
The
"No person shall * * * be compelled in any criminal case to be a witness against himself, * * *." *123
Article
"* * * No person shall be compelled, in any criminal case, to be a witness against himself; * * *."
The court in the instant case did instruct that in trial of a criminal cause a person charged with an offense may at his own request be a witness, but not otherwise, and that he cannot be compelled to testify.
The Ohio Constitution contains an additional provision that a defendant's failure to testify may be considered by the court and jury and may be the subject of comment by counsel. California's Constitution contained a similar provision, and in the case of Griffin v. California (1965),
In the instant case, the jury was instructed as to what theConstitution provides without any help from the court as to anyinference to be made therefrom and without any act on the partof either the prosecutor or the court, which might solemnize thesilence of the accused, Dominic Senzarino, into evidence againsthim.
In Bruno v. United States,
The charge requested by Bruno and refused by the trial court was identical to the charge requested by Dominic *124 Senzarino, but the Supreme Court was careful to point out in theBruno case that the issue was determined by proper application of the Act of March 16, 1878, 20 Stat. at L. 30, now Title 28, Section 632, U.S. Code. Congress by this Act provided that:
"* * * the person so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him."
Neither the United States Constitution nor the Ohio Constitution contains a like provision that "his failure to make such request shall not create any presumption against him," which provision by Act of Congress became controlling in theBruno case. Such Act of Congress made applicable to federal criminal proceedings is not applicable to state trials, neither is it mandatory under the United States Constitution that the state legislatures pass similar legislation.
If there is a federal requirement that the state court instruct that a defendant's failure to testify does not create any presumption against him, that requirement must arise directly from a duty imposed by the provisions of the United States Constitution upon the state courts.
In Griffin v. California, supra, the Supreme Court of the United States held that
In Griffin v. California, supra, it should be noted that the Supreme Court of the United States not only said, "What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another," but, via footnote at the end of the opinion, relative to state trials, said: *125
"We reserve decision on whether an accused can require, as inBruno v. United States,
For the reasons stated, neither the decision in Bruno v.United States, supra, the decision in Griffin v. California,supra, nor any United States Supreme Court decision decided prior to Griffin v. California, on April 28, 1965, would be staredecisis of the issue before us.
There is no such provision in the Ohio statutes or the Constitution of Ohio, and we find no provision in the United States Constitution, which entitles a defendant in a state criminal trial to have the jury instructed that his failure to testify does not create any presumption against him.
For the reasons stated herein, which have also been set forth by the trial court in its opinion in State v. Senzarino,
We have carefully reviewed the record and each assigned error. We do not find the judgments appealed from to be either against the manifest weight of the evidence or contrary to law. Each assigned error is overruled. We find no error prejudicial to either defendant and no violation of the constitutional rights of either. Each of the judgments appealed from is affirmed.
Judgments affirmed.
JONES, P. J., and LYNCH, J., concur.
RUTHERFORD, J., of the Fifth Appellate District, sitting by designation in the Seventh Appellate District. *126