State v. Fanning, 81-679

• Decision Date: 14 July 1982
• Docket Number: No. 81-679,81-679
• Parties: , 1 O.B.R. 57 The STATE of Ohio, Appellee, v. FANNING, Appellant.
• Court: Ohio Supreme Court

Page 19

1 Ohio St.3d 19

437 N.E.2d 583, 1 O.B.R. 57

The STATE of Ohio, Appellee, v. FANNING, Appellant.

No. 81-679.

Supreme Court of Ohio.

July 14, 1982.

Syllabus by the Court

1. A trial judge has the constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify. Upon proper request, defendant has a right, under the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment, to have the judge instruct the jury that the defendant's failure to testify cannot be considered for any purpose. The trial court has a mandatory constitutional duty to give such a requested instruction. (State v. Nelson, 36 Ohio St.2d 79, 303 N.E.2d 865 , paragraph three of the syllabus, overruled.)

2. A requested special jury instruction must be in writing and made at the close of the evidence, or at such earlier time as the court reasonably directs to be proper.

Defendant-appellant, Irving Fanning, was indicted on one count of aggravated robbery (R.C. 2911.01). He allegedly entered the Hi-Val Service Station and went to the manager's office with an employee. The manager, Robert Carr, opened his office door. Appellant pointed a gun at him, then tied him and the employee, and fled with $2,800. Police were called, and Carr gave them a description of his assailant. Subsequently, appellant was arrested based on eyewitness identification made by Carr.

Appellant filed a motion to suppress the in-court identification and after a hearing, the motion was overruled. The trial began on December 7, 1979, but a mistrial was declared on December 10, 1979, after a jury failed to reach a verdict. A motion to dismiss was filed on December 26, 1979 for failure to afford a speedy trial. This motion was overruled. The second trial began on January 8, 1980 and appellant was found guilty as charged.

The Court of Appeals affirmed, and the cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Simon L. Leis, Jr., Pros. Atty., Leonard Kirschner and James Applegate, Cincinnati, for appellee.

Alma Yaras, Cincinnati, for appellant.

REILLY, Judge.

Appellant advances three propositions of law:

1. "It is a denial of due process of law for a trial court to overrule a motion to suppress the in-court identification of the defendant and permit identification testimony, when the totality of the evidence establishes that the pre-trial, pre-line-up photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."

2. "The provisions of Revised Code 2945.71 et seq. are applicable to retrials, and therefore, a continuance of thirty days beyond the time requirements of R.C. 2945.71 is unreasonable where the appellant is confined and the reason for the continuance is to reduce the likelihood of overlapping jurors."

3. "A defendant in a state criminal trial has the right under the privilege against compulsory self-incrimination protected by the Fifth Amendment as made applicable to the states by the Fourteenth Amendment, upon request, to have the judge instruct the jury that the fact that the defendant did not testify cannot be considered for any purpose, the state trial judge having the constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify."

As to appellant's first proposition of law, it is necessary to consider the totality of the circumstances surrounding the identification. State v. Jackson (1971), 26 Ohio St.2d 74, 269 N.E.2d 118 , paragraph two of the syllabus. Moreover, it is fundamental that the weight of the evidence and credibility of witness are primarily for the trier of the facts. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212 , paragraph one of the syllabus. This principle is applicable to suppression hearings as well as trials.

The trial court held that the appellant failed " * * * to establish with sufficient preponderance here that there was any one-on-one confrontation prior to the lineup, * * *." This determination is supported by evidence presented at the hearing. The eyewitness and the officer both denied that such a confrontation occurred. The officer also denied that a picture was taken as claimed by appellant. Further, the record shows that the eyewitness had a brief but unobstructed view of his assailant at the time of the robbery. Therefore, noting that there was conflict in the testimony, applying "the totality of the circumstances" standard, we do not find error by the trial court in not finding the identification unduly suggestive. Thus, appellant's first proposition of law is not well taken.

The issue presented in appellant's second proposition of law is whether he was denied a speedy trial when a retrial, following a mistrial because of a hung jury, is scheduled 29 days after the trial date. R.C. 2945.71 requires that an accused who is in jail in lieu of bail on the pending charge be brought to trial within 90 days after arrest. Appellant's first trial commenced 88 days after his arrest; the retrial began 120 days after arrest. R.C. 2945.72 provides that:

"The time within which an accused must be brought to trial, or, in the case of felony, to preliminary...