City of Marion v. Gary A. Snyder, 97-LW-3582
| Decision Date | 07 November 1997 |
| Docket Number | 9-97-56,97-LW-3582 |
| Parties | CITY OF MARION, PLAINTIFF-APPELLEE v. GARY A. SNYDER, DEFENDANT-APPELLANT CASE NUMBER 9-97-56 |
| Court | Ohio Court of Appeals |
Criminal Appeal from Municipal Court.
MARK J BALLENGER, Attorney at Law, Reg. #0041196, 501 Mary Street Marion, OH 43302, For Appellant.
MARK RUSSELL, City Prosecutor, Donald H. Taube, Reg. #0199621, 233 West Center Street, Marion, OH 43302, For Appellee.
This appeal is taken by defendant-appellant Gary A. Snyder from a judgment entered on his conviction of leaving the scene of an accident in the Municipal Court of Marion County.
On May 3, 1997, Snyder backed his cab into a parked car and left the scene without leaving his name and address for the owner. Two people witnessed this event and reported Snyder to the police. Snyder was charged with improper backing and leaving the scene of an accident. On June 27, 1997, a jury trial was held on these charges. Snyder was found guilty on the charge of improper backing, but the jury was unable to reach a verdict on the charge of leaving the scene.
On July 1, 1997, Snyder, who was indigent, requested a transcript of the first trial in order to prepare for the second. The City of Marion (the City) did not object. This motion was denied by the trial court. A second jury trial was held on July 9, 1997. At this trial, Snyder was convicted of leaving the scene of an accident. Snyder was sentenced to 180 days in jail and a $1000 fine, with 90 days and $500 suspended on the condition that Snyder not violate any laws for one year. It is from this judgment that Snyder appeals.
Snyder raises the following assignments of error.
The trial court erred in denying Snyder's requests for a transcript of the first trial which resulted in a mistrial because of a hung jury.
The trial court committed prejudicial error in denying defense counsel permission to attack a prosecution witness' credibility based upon that witness' prior felony conviction(s).
The trial court erred in sentencing Snyder to 90 days in jail.
The trial court erred in imposing a fine of $500 without considering the factors in R.C. 2929.22(F).
In the first assignment of error, Snyder argues that the trial court should have granted his request for a transcript of the first trial. Snyder alleges that the transcript was necessary for the preparation for the second trial. The City, in opposition, claims that the transcript was not needed and that Snyder failed to show why it was needed. When the motion was filed, the City failed to respond. The trial court overruled the motion. Snyder then renewed the motion at trial. At that time, the City stated in opposition only "The Defendant's not entitled to the granting of that motion under the rules." The trial court then overruled the motion once again.
This issue was addressed by the Supreme Court of Ohio in State v. Arrington (1975), 42 Ohio St.2d 114, 71 O.O.2d 81 326 N.E.2d 667. In Arrington, the defendant requested a transcript of a preliminary hearing and the motion was overruled. The Supreme Court held that the denial of the transcript was prejudicial error.
The state argues that the denial of the pretrial transcript was not error because: (1) The defendant did not establish that the transcript of the preliminary hearing was valuable to his defense, (2) the defendant did not allege any discrepancies between the testimony at trial and the testimony at the preliminary hearing, and (3) the defendant did not suggest that there were no alternative devices that would fulfill the same function as the transcript. This court disagrees. The burden is on the state, not the defendant to show these things. A preliminary hearing, although much more limited in scope than a prior mistrial, is a formal proceeding in which testimony is taken in a judicial atmosphere. If a record is made of a preliminary hearing, its value to the defendant is similar to that of the record of a prior trial. "***[E]ven in the absence of specific allegations," the value of a transcript of that record to the defense "can ordinarily be assumed." (emphasis added, citations omitted)
Id. at 118, 326 N.E.2d at 670.
This holding was applied to a request for a transcript of a prior trial in State v. Thacker (l978), 54 Ohio St.2d 43, 8 O.O.3d 37, 374 N.E.2d 642. In Thacker, the first trial ended in a hung jury and the defendant requested a transcript of the first trial in order to help the defense prepare for the second trial. The state did not object to the motion. The trial court then overruled the motion. At the beginning of the trial, the motion for transcripts was renewed and, again, the motion was overruled. The Supreme Court of Ohio held that Defendant's request for transcripts was not opposed by the prosecution and was overruled without a hearing. Therefore, the record before this court does not demonstrate that, as this court stated in Arrington, paragraph three of the syllabus, there are adequate "alternative devices available to the defendant that would fulfill the same functions as a transcript."
Accordingly, the defendant's request for transcripts of testimony from his first trial was improperly overruled. . . .
Id. at 44-45, 374 N.E.2d at 643.
Here, we have a very similar situation. The City failed to object to the motion for a transcript when it was filed. In addition, no hearing was held on the motion. As such, the record contains nothing to show that the City has met its burden of showing that Snyder does not need the transcript. The only objection made by the City was at trial when a motion for reconsideration was made. At that time, the City merely stated that Snyder was not entitled to it. The City failed to show why Snyder was not entitled to the transcript, nor did the City show any alternative means of obtaining the material contained in a transcript. Absent this showing, the City has not met its burden and under the holdings of Arrington and Thacker, prejudicial error has occurred. Snyder's first assignment of error is sustained.
In Snyder's second assignment of error, he argues that the trial court improperly limited his cross-examination of a witness concerning prior felonies.
For the purpose of attacking the credibility of a witness:
Evid.R 609(A). The general rule is that the scope of cross-examination is within the sound discretion of the trial court. State v. Amburgey (1987), 33 Ohio St.3d 115, 515 N.E.2d 925. "[A] trial court has broad discretion to limit any questioning of a witness on cross-examination which asks more than the name of the crime, the time and place of conviction, and the punishment...
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