476 N.E.2d 672 | Ohio Ct. App. | 1984
Lead Opinion
Defendant-appellant, Bennie L. Swanson (defendant), appeals his criminal conviction, following a jury trial, for aggravated burglary (R.C.
For reasons adduced below, the judgment is reversed.
Steve Johnson was watching television on the first floor of the building when he heard Jones yell excitedly to him to catch someone. The burglar came within five or six feet of Johnson when running by him on the way out of the house. Johnson saw the perpetrator's face. He recognized him as a relative of Scarver's who had previously visited 10118 North Boulevard. Johnson informed Scarver that the defendant had broken into Scarver's apartment.1 Johnson gave police the same information later that night.
A few days after the break-in, Jones selected the defendant's photograph from a display presented by the authorities at police headquarters.2 She testified *376 that the burglar wore a skull cap. No hair was visible. He had no mustache, and was much smaller in size than herself.3 Johnson said that the perpetrator wore a skull cap which covered his hair. Johnson knew that at the time of the incident the defendant did not have a mustache but did have a short patch of beard.
The defendant was arrested in July 1982, when police, responding to a domestic violence complaint by defendant's wife, discovered that an arrest warrant for him was outstanding. At trial, defendant claimed that he was mistakenly identified and presented an alibi.
Assignment of Error No. I
"The trial court erred in not permitting defense counsel to supplement the voir dire of the jury in a nonabusive manner."
Assignment of Error No. II
"The trial court erred in its instruction to the jury by giving a definition of reasonable doubt which was expanded beyond the statutory definition, to which trial counsel objected, and the trial court refused to change or otherwise correct."
Assignment of Error No. III
"The trial court committed plain error in not instructing the jury on the potential unreliability of eyewitness testimony, given the factual circumstances of this case and/or it was ineffective assistance of counsel not to make a request for such a jury instruction."
"The court may permit the attorney for the defendant, or the defendant if appearing pro se, and the attorney for the state to conduct the examination of the prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the state and defense to supplement the examination by further inquiry."
Prior to the adoption of the Criminal Rules, Ohio practice permitted counsel reasonable opportunity to personally examine prospective jurors. State v. Anderson (1972),
Assignment of Error No. I lacks merit.
Assignment of Error No. II is well-taken.
This special instruction was not requested at trial and Crim. R. 30(A) precludes the issue from being raised on appeal unless it amounts to plain error under Crim. R. 52(B), see State v.Gideons (1977),
Assignment of Error No. III lacks merit.
Judgment reversed and cause remanded.
JACKSON, J., concurs.
PARRINO, J., concurs in part and dissents in part.
"The trial court's supplemental definition of reasonable doubt adds nothing to the statutory definition. It is an unnecessary and verbose exhortation. We strongly encourage the trial court to eliminate this language from its set of jury instructions, and for the prosecutor's office to assist the Court of Common Pleas in this matter."
Dissenting Opinion
I concur in the majority's resolution of the first and third assignments of error but dissent from their decision on the second assignment of error.
The issue under appellant's second assignment of error is whether the trial court's amplification of the statutory definition of reasonable doubt prejudiced appellant and thereby denied him a fair trial.
The statutory definition of reasonable doubt is clearly recited in R.C.
In the case sub judice the jury's verdict was supported by evidence proving appellant's guilt beyond a reasonable doubt. Error, if any, in the trial court's amplification of the term reasonable doubt was harmless.
Under the circumstances I do not believe that "effective teaching" requires a "sanction" of reversal where prejudicial error has not intervened.
For these reasons I respectfully dissent.
I would affirm.