State v. Lewis, 1676
| Citation | 600 N.E.2d 764,75 Ohio App.3d 689 |
| Decision Date | 22 August 1991 |
| Docket Number | No. 1676,1676 |
| Parties | The STATE of Ohio, Appellee, v. LEWIS, Appellant. |
| Court | United States Court of Appeals (Ohio) |
Scott W. Nusbaum, Asst. County Prosecutor, Chillicothe, for appellee.
Carl P. Hirsch, Jr., Chillicothe, for appellant.
This is an appeal from a judgment of conviction and sentence entered by the Common Pleas Court of Ross County, Ohio, upon a jury verdict finding Joseph Lewis, defendant below and appellant herein, guilty of robbery in violation of R.C. 2911.02, an aggravated felony of the second degree. The following errors are assigned:
The following facts pertinent to this appeal appear in the record. At trial, the prosecution adduced evidence tending to establish that on October 28, 1989 Keith Raybourn, age thirty-four, drove to the Butterbeans Lounge located on the premises of the L & K motel in Chillicothe, Ohio. He arrived between 6:00 and 6:30 p.m. and began drinking beer. After consuming six to eight beers, he left the bar at about 10:00 p.m., intending to walk home rather than drive his car because of his consumption of alcohol.
As he was walking through the parking lot, he observed a group of persons standing by the motel pool. Four young black men, around twenty years old, approached him, and one asked for money. He described the person asking for money as slim and with a light voice. Raybourn stated at trial that he told the man that he had spent his money and was headed home. As he walked away, he was jumped from behind and held in a headlock. He lost his glasses and could not identify the person holding him. He was forced across the blacktop to some pine trees where he was kicked and struck a number of times. He was then forced onto his back and his billfold containing approximately $125 was taken by one of the persons attacking him. He suffered a black eye, a lacerated lip, knots on his forehead, and bruises from the beating. He returned to the bar and the police were called. A robbery report was subsequently filed.
One Janeda Lynn Ryder testified at trial that she was sixteen years of age and was a friend of appellant. She testified that on October 28, 1989, she, with some friends, including appellant, went to the L & K Motel because they had heard a party was being given by some girls in an upstairs motel room. Upon arrival, the group discovered that the party had broken up and a number of persons were descending the stairs. Ryder stood in the parking area talking to three of her friends, including appellant. The witness then testified as follows:
The state also called as a witness one Paris Thomas, a friend and schoolmate of appellant. The witness had previously given a statement to the authorities that he had been at the L & K Motel on the night of the alleged robbery and that he saw appellant and two others hitting and kicking a man who was between twenty-six and thirty years in age.
Upon being asked on direct examination if he went to a party at the L & K in October 1989, Thomas denied going to the party. The state then requested, over objection, to examine the witness as to the prior statement pursuant to Evid.R. 607 by reason of surprise and affirmative damage to the state's case. A colloquy between counsel and the court followed. Appellant's counsel asserted the police officer handling the case knew prior to trial that the witness would repudiate his prior statement. Counsel for the state stated he was aware of the possibility that the witness might change his testimony but did not know how he would testify. The court below denied a request to take testimony from the officer and then granted the state permission to cross-examine the witness respecting his prior statement. No limiting instruction was requested nor was one given by the court either at that time or in the general instructions. Following the conclusion of the state's case, appellant rested without presenting any evidence. Additional facts will be set forth as pertinent to each assignment of error.
Complaint is made under the first assignment of error that the selection of prospective jury panel violated the fair cross-section of the community requirement in the procedure for selection of juries. We note at the outset that appellant did not file a pretrial motion but instead made an oral motion in chambers, which was unrecorded. Thus, there is no evidence before us as to the procedures used to select jurors in Ross County nor any evidence as to the ages of the prospective jury panel. Accordingly, there is no basis for effective appellate review. For this and additional reasons that follow, the assignment of error is overruled.
The thrust of appellant's argument in his brief is that the jury was chosen solely from voter registration lists prepared pursuant to R.C. 2313.08. It is then argued that since fewer younger persons than older persons register to vote, a list of licensed drivers made pursuant to R.C. 2313.06 should have been used. We disagree.
Assuming, arguendo, that prospective jurors are chosen solely from voter registration lists, this procedure is constitutionally permissible. The use of voter lists to select qualified jurors has, as stated in State v. Esparza 1988), 39 Ohio St.3d 8, 13, 529 N.E.2d 192, 197, "consistently been upheld by this court." See State v. Johnson (1972), 31 Ohio St.2d 106, 60 O.O.2d 85, 285 N.E.2d 751; State v. Strodes (1976), 48 Ohio St.2d 113, 2 O.O.3d 271...
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... ... "must be viewed in the context of the overall charge ... rather than in isolation." State v. Lewis ... (1993), 67 Ohio St.3d 200, 203, 616 N.E.2d 921, 924, ... certiorari denied (1994), ___ U.S. ___, 114 S.Ct. 1237 ... ...
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