Dayton v. Combs

• Decision Date: 09 June 1993
• Docket Number: 13622,Nos. 13621,s. 13621
• Citation: 640 N.E.2d 863,94 Ohio App.3d 291
• Parties: CITY OF DAYTON, Appellee, v. COMBS et al., Appellants.
• Court: Ohio Court of Appeals

Page 291

94 Ohio App.3d 291

640 N.E.2d 863

CITY OF DAYTON, Appellee, v. COMBS et al., Appellants.

Nos. 13621, 13622.

Court of Appeals of Ohio, Second District, Montgomery County.

Decided June 9, 1993.

Raymond L. Bilott, Dayton Asst. Prosecutor, Dayton, for appellee.

Michael F. O'Loughlin and Theodore G. Gudorf, Dayton, for appellants.

WOLFF, Judge.

On June 19, 1992, Dianna C. Wagner was convicted of operating a gambling house in violation of Section 132.04(A)(1) of the Revised Code of General Ordinances of the City of Dayton (hereinafter referred to as "R.C.G.O."), and Kenneth D. Combs was convicted of gambling in violation of Section 132.03(A)(2) of the R.C.G.O. Wagner and Combs appeal from their convictions.

The evidence introduced by the city at trial is essentially as follows.

On January 7, 1992, Dayton police officers were dispatched to 2640 St. Charles Avenue after receiving an anonymous telephone call that there was a gambling operation at that location. When the officers arrived, they knocked on the door and were greeted by Combs, who slammed the door shut, apparently upon noticing that they were police officers. The officers then knocked on another door to the premises and were greeted by Wagner, who asked if she could help them. The officers then stated the purpose of their visit, and asked if they could come in and look around. Wagner consented and the officers entered the premises.

Once inside, the officers noticed Combs running from one room to another where people were playing various games of chance. The police officers observed that there were gambling tables set up at the end of a hallway and in several of the rooms adjoining the hallway. They further observed Combs dealing cards to people sitting across from him at a table and that there were poker chips on the table. In the outside hallway, the officers discovered a surveillance camera behind a two-way mirror situated so that persons approaching the front door could be observed. Finally, the officers noticed an elderly gentleman sitting at one of the tables pick up all of the poker chips in front of him, put them into his pocket, and walk toward the front door.

Based on this evidence, the officers obtained a search warrant and presented it to Wagner. A more thorough search of the premises revealed that the gambling tables were for blackjack, baccarat, and poker, and that there were several decks of cards, several thousand poker chips, and "a couple of thousand dollars in cash" on the premises.

The officers then read Wagner and Combs the Miranda warnings, and asked them questions regarding the business operation. Wagner told the officers that she was the manager and hostess of the establishment, that the establishment was called the "V.I.P. Travel Club" (hereinafter referred to as the "Club"), and that the purpose of the Club was simply to teach gambling techniques to amateur gamblers prior to preparing trips for them to various cities where gambling is allowed. Wagner further stated that the Club did not charge any fee for its services, but she could not explain how the Club stayed in business. Wagner did not provide, and the officers did not discover, any pamphlets or other paperwork to indicate that the Club had planned any trips for its patrons.

The officers then took witness statements from two of the patrons. Approximately a week later, officers again approached these two witnesses to obtain a second statement.

On January 10, 1992, Wagner was charged with operating a gambling house in violation of R.C.G.O. 132.04(A)(1), and on January 24, 1992, Combs was charged with gambling, in violation of R.C.G.O. 132.03(A)(2). A motion was made to consolidate the cases, and the consolidated case was tried to the Dayton Municipal Court on May 19, 1992. The trial court found both Wagner and Combs guilty of the charges alleged.

Wagner and Combs appeal from this judgment and assert two assignments of error:

"I. The trial court committed reversible error when it (1) permitted the witnesses to read their prior unsworn written witness statements, (2) permitted the prosecutor to elicit testimony concerning the content of the statements, and (3) admitted the statements."

In this assignment of error, Combs and Wagner assert that the trial court erred in (1) permitting the city to elicit testimony as to the contents of prior unsworn written witness statements by requesting that the witnesses read their statements and then questioning them as to the information contained therein, and (2) admitting these statements as substantive evidence. Specifically, Combs and Wagner argue that these statements could not be used during witness questioning or admitted into evidence because they constituted inadmissible hearsay.

We begin our analysis by noting that although Combs and Wagner combine their arguments as to the impermissibility of utilizing prior witness statements during trial testimony, and the impermissibility of admitting such statements into evidence, the two issues are in fact distinct and we will consider them as such.

A. Utilizing Prior Witness Statements During Trial Testimony

Prior written statements may be utilized during trial testimony to either "refresh" a witness's recollection of events or information of which the witness has no present recollection at trial, or to impeach the testimony of a witness that is inconsistent with his prior statement. Use of such statements during trial testimony is permitted in the first instance to "jog" the memory of the witness, and in the second instance to indicate that the witness is untrustworthy. If used solely to refresh recollection or to impeach, the prior statement is of no substantive evidentiary value, and the hearsay rule and its exceptions are not implicated. If the statement is used to establish the truth of the matter asserted, i.e., as substantive evidence, with or without an additional purpose to impeach, the hearsay rule and its exceptions are implicated.

With this foundation in mind, we now consider Wagner and Combs' contention that the trial court erroneously permitted two witnesses to read their prior written witness statements and erroneously allowed the city to elicit testimony as to the contents of these statements.

In order to determine the propriety of the trial court's apparent decisions on these issues, we must examine the entire testimony of the two witnesses involved. (Throughout the trial, the trial judge frequently declined to put his reasoning for his evidentiary rulings on the record.) The witness statements objected to are the statements of Edward Haller and James Weser, two of the patrons of the Club, who were both called to testify during the city's case in chief. At trial, Haller initially refused to answer any questions on the basis of the Fifth Amendment but agreed to testify after the trial court granted him immunity from prosecution for gambling. Nevertheless, Haller was hardly cooperative in his answers. When asked whether he had ever been to the Club, Haller answered, "I guess, I don't know." He also could not recall how long he had been a member of the Club or whether he had given any money to anyone at the Club. He did not recognize either of his signed statements, but acknowledged that the signatures contained on the statements were his. The city then quoted the specific questions asked in the statement and indicated what his answers had been. After reading each question and answer, the city asked Haller if he remembered that particular question and answer. In each case, Haller would respond, in essence, that he might have said what the statement indicated, but that he did not know because he was "so shook up" he would have "said anything."

The format of Weser's testimony was much the same. Weser testified that he "believe[d]" that he was at the Club when the police raided the premises. He stated that he "thought" that he was playing cards, but that he had been drinking all day and was "not real positive." He was unsure as to whether he had been gambling, but stated that he "could have been gambling." When confronted with his prior witness statements, Weser identified his signature and acknowledged that the statements were his. When questioned as to particular answers he had provided in his prior statements, Weser more than once deferred to the information provided in the statements. Weser further testified that he thought the statements "could be right" and that although he did not know whether he had lost money, he stated that "when [he] was talking to the police officers, they were asking [him] those things, and to the best of [his] ability, [he] answered them."

Thus, the testimony of both Haller and Weser indicated that neither could adequately recall, or was inclined to recall, the events which took place at the Club on the night of the police raid. Accordingly, the city attempted to obtain testimony as to the relevant events by use of the witnesses' prior written statements. The record is devoid of any indication as to whether the city intended to "refresh" the recollection of these witnesses or to impeach their credibility by use of their statements, and thus we must determine whether the questioning as to these statements was permitted for either purpose.

i. Writings Used to Refresh Memory

The practice of "refreshing" a witness's recollection by means of a writing is prescribed by Evid.R. 612, which states:

" * * * if a witness uses a writing to refresh his memory for the purpose of testifying, either: (1) while testifying; or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing. He is also entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. * * * "

Prior to employing a writing to refresh the...