State v. Kiraly

• Decision Date: 21 October 1977
• Citation: 56 Ohio App.2d 37,381 N.E.2d 649
• Parties: , 10 O.O.3d 53 The STATE of Ohio, Appellee, v. KIRALY, Appellant. 1
• Court: Ohio Court of Appeals

Page 37

56 Ohio App.2d 37

381 N.E.2d 649, 10 O.O.3d 53

The STATE of Ohio, Appellee, v. KIRALY, Appellant. ¹

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Oct. 21, 1977.

Syllabus by the Court

1. Search warrants may issue only upon a showing of probable cause. To conclude that a reasonable inference of probable cause was drawn by the magistrate, the affidavit must set forth sufficient underlying circumstances to support the inference of probable cause. Where the affidavit relies on information supplied by an informant, there must be a basis on which to conclude that the supplied information is credible.

2. The Sixth Amendment right to counsel at post-indictment confrontations does not apply to confrontations conducted before the defendant has been indicted or otherwise formally charged relative to the crime in question. State v. Sheardon (1972), 31 Ohio St.2d 20, 285 N.E.2d 335, following Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.

However, where the record discloses that an arrest warrant has been issued and returned and that bond has been set for the crime charged in the arrest warrant, the accused has been "formally charged" and is entitled to counsel at confrontations held subsequent to the arrest and setting of bond, though he has not yet been indicted.

3. Criminal Rule 33(B) requires that when a motion for new trial on account of newly discovered evidence is not filed within one hundred twenty days after the day upon which the verdict was rendered, that "such motion Shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period." (Emphasis added.) Where a motion for new trial on account of newly discovered evidence does not comply with the requirements of this section, that motion should be dismissed.

John T. Corrigan, Pros. Atty., for appellee.

Ralph D. Sperli, Cleveland, for appellant.

JACKSON, Judge.

On June 12, 1975, defendant appellant, William Kiraly, and Joseph Gallo, were jointly indicted for the following criminal offenses: attempted aggravated murder in violation of R.C. 2903.01, R.C. 2923.02; aggravated arson in violation of R.C. 2909.02; and conspiracy to commit aggravated murder in violation of R.C. 2923.01. At arraignment defendant Kiraly entered a plea of not guilty.

A jury trial was commenced on November 13, 1975, with defendant Kiraly being tried separately from Joseph Gallo. Defendant was found guilty as charged on the aggravated arson and the conspiracy charges. The charge of attempted aggravated murder was quashed pursuant to R.C. 2941.32. Defendant was sentenced to serve from five to twenty-five years under each charge upon which he was convicted, the sentences to run concurrently.

It is from this judgment and sentence that defendant appeals. The following errors are assigned:

"First Assignment of Error.

"The Court erred as a matter of law and to the prejudice of the appellant in overruling the appellant's Motion to Suppress Evidence because the affidavit for the search warrant did not present a substantial basis for the court to find that the information was credible.

"Second Assignment of Error.

"The Court erred as a matter of law and to the prejudice of the appellant in overruling the appellant's Motion to Suppress Evidence because the affidavit upon which the warrant issued contained material false or misleading statements as a result of the affiant's failure to disclose how he obtained hearsay information.

"Third Assignment of Error.

"The trial Court erred as a matter of law and to the prejudice of the appellant by not granting appellant's Motion for a Mistrial due to or in the alternative for not instructing the jury to disregard the testimony as to appellant's criminal reputation alleged when the appellant did not testify on his own behalf.

"Fourth Assignment of Error.

"The trial Court erred as a matter of law and to the prejudice of the appellant when it overruled appellant's Motion for Judgment of Acquital (Sic ) at the close of the State's case.

"Fifth Assignment of Error.

"The trial Court erred as a matter of law and to the prejudice of the appellant in allowing the State's witness, Tim Thomas, to make an in Court identification of the appellant, that he was not allowed to have the assistance of counsel at the lineup in which that witness identified appellant.

"Sixth Assignment of Error.

"The Court erred as a matter of law and to the prejudice of the appellant by not granting appellant's motion for a mistrial based on appellant's objection to the prosecutor's closing argument.

"Seventh Assignment of Error.

"The Court erred as a matter of law and to the prejudice of the appellant by denying his motion for a new trial.

"Eighth Assignment of Error.

"The trial Court erred as a matter of law and to the prejudice of the appellant by refusing to allow appellant's counsel to contact and obtain statements from jurors as to the effect the newly discovered evidence would have had on them.

"Ninth Assignment of Error.

"The trial Court erred as a matter of law and to the prejudice of the appellant by overruling appellant's Motion for Judgment of Acquital (sic) at the close of appellant's case."

Defendant's fourth and ninth assignments of error, which challenge the sufficiency of the evidence at the close of the state's case and at the close of all the evidence will be considered first.

The record discloses that defendant presented evidence after the trial court denied his motion for acquittal at the close of evidence presented by the state; consequently, he is precluded from challenging the sufficiency of the evidence at the close of the state's case, State v. Larry (1975), 44 Ohio App.2d 92, 335 N.E.2d 731. The fourth assignment of error by defendant is not well taken.

The record discloses the following testimony:

At approximately 3:30 or 3:45 on the morning of May 12, 1975, the combination office-residence of Daniel Greene was destroyed by an explosion. At the time of the explosion, the building was occupied by Daniel Greene and Miss Denise Schmidt. The explosion was caused by the detonation of four or five pounds of tetrytol, probably placed on the first floor of the building on the side facing Waterloo Road.

Shortly before the explosion Tim C. Thomas was in front of his house, not far from the residence of Daniel Greene, smoking a cigarette. At that time he observed a green Oldsmobile, with two individuals in the front seat, drive slowly in front of him and proceed toward an alley near the residence of Daniel Greene, where the car stopped briefly. The car then proceeded to turn into Waterloo Road. Mr. Thomas, possibly because he heard a sound, walked to a driveway across the street where he observed a man carrying something behind the residence of Daniel Greene; Mr. Thomas lost sight of the man as the man went into an unlighted area. Mr. Thomas identified defendant as the man he saw behind the residence of Mr. Greene.

A 1974 green Oldsmobile Regency with license number EL 805 was seized by police and searched. This car was leased to Joe Gallo by Jet Auto Leasing. Mr. Thomas identified this car as the one he had observed near the residence of Daniel Greene shortly before the explosion. Yellow particles were removed from the trunk of this automobile. Analysis of the particles indicated that they were tetrytol. Tetrytol is not available to the general public through lawful means.

Daniel Greene testified that he had seen defendant and Joe Gallo driving slowly in front of his house on May 9 and May 11 in a green Oldsmobile or Buick with license number EL 805, and in two different black Cadillacs on different occasions prior to May 9, 1975. Kevin McTaggert, a friend of Daniel Greene, testified that on May 6, 1975, at 10:30 p. m. he observed a 1973 or 1974 green Oldsmobile with license number EL 805 drive slowly in front of the residence of Daniel Greene, with the headlights off. Two men whom McTaggert was unable to see clearly, were in the car. Mr. McTaggert had observed defendant driving in the area in a black Cadillac on five or six prior occasions.

An FBI agent observed defendant's black Cadillac with license number EL 805 in front of Joseph Gallo's residence at 2 p. m. on May 6, 1975. On May 7, 1975, defendant's black Cadillac was again parked in front of the residence of Joseph Gallo. However, on May 7, 1975, the black Cadillac bore license B 12285, while a green Oldsmobile bore license EL 805. At 7:30 p. m. Gallo and defendant left the area in the Oldsmobile.

The essential elements of the crime of aggravated arson, pursuant to provisions of R.C. 2909.02, are:

"(A) No person, by means of fire or explosion, shall knowingly:

"(1) Create a substantial risk of serious physical harm to any person;

"(2) Cause physical harm to any occupied structure."

There was evidence presented that the occupied residence of Daniel Greene was blown up by the explosive tetrytol. Defendant was seen near the residence shortly before the explosion carrying something. Particles of the explosive were found in the trunk of a car in which defendant had been seen riding and which was seen in the immediate area shortly before the explosion.

We find the above evidence sufficient to support the jury's finding the defendant guilty of aggravated arson.

The provisions of R.C. 2923.01, relating to the crime of conspiracy, provide in part:

"(A) No person, with purpose to commit or to promote or facilitate the commission of aggravated murder or murder, kidnapping, compelling prostitution or promoting prostitution, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or a felony offense of unauthorized use of a vehicle, shall do either of the following:

"(1) With another person or persons, plan or aid in planning the commission of any such offense;

"(2) Agree with another person or...