State v. Bridgeman

• Citation: 366 N.E.2d 1378,51 Ohio App.2d 105
• Parties: , 5 O.O.3d 275 The STATE of Ohio, Appellee, v. BRIDGEMAN, Appellant.
• Decision Date: 07 April 1977
• Court: United States Court of Appeals (Ohio)

Page 105

51 Ohio App.2d 105

366 N.E.2d 1378, 5 O.O.3d 275

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

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

April 7, 1977.

Syllabus by the Court

1. In a case of aggravated murder, and attempted aggravated murder with specifications of aggravated robbery, where the court in its charge instructs the jury that "the evidence discloses beyond question that (the decedent) was slain purposefully during the course of an aggravated robbery (and that another victim) was shot during the course of an aggravated robbery, and that the evidence discloses in fact an aggravated robbery was accomplished," such a charge invades the exclusive province of the jury as the judge of the facts and comes within the prohibitions of Morgan v. State (1891), 48 Ohio St. 371, 27 N.E. 710; State v. Nutter (1970), 22 Ohio St.2d 116, 258 N.E.2d 440, and Premack v. State (1908), 11 Ohio Cir.Ct.R.N.S., 364.

2. Where the defense offers no direct evidence contradicting the commission of the crimes charged, and relies solely on the defense of alibi, the defendant's failure to refute the claim that the crimes were committed does not warrant the trial court's omission, in its instructions to the jury, of the elements of the crimes charged, including their specifications.

3. The trial court's failure to instruct the jury on the elements of crimes charged, including the specification aspects thereof, may be noticed as plain error affecting the defendant's substantial rights to a trial by jury and to a fair trial, notwithstanding defense counsel's failure to request such instructions as provided by Crim.R. 30.

4. Where the accused has seasonably filed a notice of alibi, presented testimony at trial in its support, and relies on alibi as his sole defense, the trial court's failure to instruct on the defense of alibi does not comply with its duty to instruct on "all matters of law necessary for the information of the jury in giving its verdict" as provided by R.C. 2945.11, and this omission may be noticed as plain error affecting the substantial rights of the accused, notwithstanding defense counsel's failure to request an instruction on alibi as provided by Crim.R. 30.

5. In answering questions submitted by the jury, the trial court does not abuse its discretion by having the court reporter read the direct and cross-examination of the state's key witness, but not his rebuttal testimony, where his rebuttal testimony contains no information relevant to the jury's questions.

6. The sentence death by electrocution, for the crime of aggravated murder, does not violate the prohibition of the United States Constitution against cruel and unusual punishment. State v. Bayless (1976), 48 Ohio St.2d 73, 357 N.E.2d 1035.

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

Jerry Milano, Daniel R. McCarthy and Robert L. Miller, Cleveland, for appellant.

PRYATEL, Judge.

On May 19, 1975, Harold J. Franks, a money order salesman, was attacked by two young men as he left the Fairmount Cut Rate Store on Fairhill Avenue in Cleveland, carrying a briefcase containing cash and money orders. One of the assailants threw acid in his face and struck him over the head, knocking him to the ground. When he still refused to release his briefcase, the second assailant shot him twice in the chest at close range. When Mrs. Anna Robinson, an owner of the Cut Rate Store, looked out at the scene through the glass door of the store and knocked on the glass, the gunman fired at her, wounding her in the neck. The two assailants then fled with the briefcase to an awaiting getaway car attended by a third young man. The three men sped away.

Defendant Wiley Bridgeman, appellant herein, and two codefendants were indicted by the grand jury of Cuyahoga County for the aggravated murder of Mr. Franks with a specification of aggravated robbery. They were also indicted for the attempted aggravated murder of Mrs. Anna Robinson, with a specification of aggravated robbery, and for the separate offense of aggravated robbery of Mr. Franks. Each of the defendants received a separate trial. The appellant in this case was tried as an aider and abettor, as the attendant of the getaway car.

Trial commenced on August 4, 1975. The key witness for the state was Edward Vernon, a thirteen year old boy who lived in the neighborhood. He testified that on May 19, 1975, while riding on a bus, he saw the appellant driving past just before he reached his bus stop at Fairhill Avenue and Petrarca Avenue. Edward Vernon disembarked at that stop and proceeded toward a point about thirty feet from the Fairhill Cut Rate Store. From there he recognized two young men from his neighborhood standing in front of the store. He saw them attack the victim and flee down Petrarca Avenue to a waiting automobile. He testified that he recognized the appellant, Wiley Bridgeman, standing by the passenger side of the automobile when the two fleeing men approached it. He further testified that he saw Wiley Bridgeman enter the automobile and open the passenger door for them to enter. After they entered, Edward Vernon said the automobile sped off down Petrarca Avenue.

Dr. Charles Hirsch, Deputy Coroner of Cuyahoga county testified that he performed an autopsy of Mr. Harold J. Franks on the morning of May 20, 1975. His findings revealed that Mr. Franks sustained two blunt impacts to the right portion of his skull and two gunshot wounds from a weapon which had been pressed firmly against his chest. He further testified that just before Mr. Franks died, he suffered acid burns of the face and scalp.

Prior to trial, on July 25, 1975, the appellant filed a timely notice of alibi claiming to have been at the vicinity of 10611-21 Arthur Avenue, Cleveland, Ohio, at the time of the alleged offense.

Upon the conclusion of the state's case, the appellant presented evidence in support of his defense of alibi. Several witnesses, including the appellant, testified that appellant had left his home to run certain errands for friends of the family, or that he was at his sister's house at the time in question. Appellant denied the commission of the alleged crimes, any involvement with the two codefendants, and denied his presence at the scene.

After rebuttal by the state, the jury was instructed on the law and retired to deliberate. Prior to reaching a verdict, the jury propounded two questions to the court as to what certain testimony had revealed. Over the objection of defense counsel, the court read to the jury the complete direct and cross examination of Edward Vernon. After that testimony was read, the court, again over the objection of defense counsel, refused to read the rebuttal testimony of this witness.

On August 12, 1975, the jury returned a verdict of guilty to all three counts of the indictment. Finding that no mitigating circumstances existed, the judge sentenced the appellant to die in the electric chair on April 22, 1976. The execution has been stayed pending the outcome of this appeal.

Assignment of Error No. I

"The trial court erred by improperly limiting the scope of defense counsel's inquiry during the voir dire examination."

Both the appellant and the appellee agree that under the laws of Ohio the trial court has the discretion to regulate the scope of counsels' inquiries during voir dire examination. State v. Anderson (1972), 30 Ohio St.2d 66, 282 N.E.2d 568; Dowd-Feder, Inc. v. Truesdell (1936), 130 Ohio St. 530, 200 N.E. 762; Krupp v. Poor (1970), 24 Ohio St.2d 123, 265 N.E.2d 268; Salerno v. Oppman (1936), 52 Ohio App. 416, 3 N.E.2d 801.

In this case the trial judge, in outlining his duties to the voir dire panel, said:

"The court does have the obligation of conducting the voir dire examination and to confine counsel to proper questions on voir dire examination.

"If in the event I do interfere, without objections on either side, why, I'm in no way attempting to influence the selection of the jury in any way but it is my duty to prevent counsel asking improper questions on voir dire.

"In other words, they will not go into the law. They will not assume fact. They will not go into the credibility of the witnesses."

Further, he reminded counsel: "You cannot go directly or indirectly on matters of law."

R.C. 2945.27 provides:

"The judge of the trial court shall examine the prospective jurors under oath * * * as to their qualifications to serve as fair and impartial jurors, but he shall permit reasonable examination of such jurors * * * by the defendant or his counsel."

Criminal Rule 24(A), insofar as applicable here, reads as follows:

"Any person called as a juror for the trial of any cause shall be examined under oath * * * as to his qualifications. The court may permit the attorney for the defendant * * * and the attorney for the state to conduct the examination of the prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the state and defense to supplement the examination by further inquiry."

The standard of the court's discretion in limiting the examination of the venire by counsel is reasonableness. R.C. 2945.27. The trial judge has the right to control all proceedings and to limit the trial to relevant and material matters with a view toward the expeditious and effective ascertainment of the truth regarding the matters at issue. R.C. 2945.03.

While it is solely the responsibility of the trial judge to give the law that governs the trial, such responsibility does not preclude counsel from questioning the panel on matters of applicable law so long as counsel states the law fairly and accurately, and couches it in language that makes it clear that the court is the final arbiter of the law. Counsel have a duty to select a jury that will not only properly decide the facts but apply the law given by the court to the facts as the jury finds them to be. Counsel may inquire of the panel whether...