State v. Childs

• Decision Date: 17 April 1968
• Docket Number: No. 40810,40810
• Citation: 14 Ohio St.2d 56,236 N.E.2d 545,43 O.O.2d 119
• Parties: , 43 O.O.2d 119 The STATE of Ohio, Appellee, v. CHILDS, Appellant.
• Court: Ohio Supreme Court

Page 56

14 Ohio St.2d 56

236 N.E.2d 545, 43 O.O.2d 119

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

No. 40810.

Supreme Court of Ohio.

April 17, 1968.

Syllabus by the Court

1. Showing that an incarcerated and indigent defendant who relies on the defense of alibi did not have counsel for four months of the pretrial period does not of itself establish a per se violation of such defendant's constitutional right to counsel so as to require application of the Chapman case rule relating to harmless constitutional error. (Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)

2. The mere fact that the testimony of alibi witnesses is weakened upon cross-examination so that such witnesses reveal a lack of distinct recollection of the accused's whereabouts at the time of the alleged crime is not a sufficient basis for arguing upon appeal that such lack of evidence-memory was attributable to delay in the appointment of counsel for the defendant so as to ground a claim of lack of counsel at a critical stage of prosecution under Article VI, Amendments, United States Constitution.

3. It is a general rule that an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. (Paragraph one of the syllabus of State v. Glaros, 170 Ohio St. 471, 166 N.E.2d 379, approved and followed.)

4. Language in alibi instructions directing the jury to acquit if all the evidence in the case raises a reasonable doubt of guilt does not erroneously shift the burden of proof from the state where other language in the charge clearly explains that the burden remains upon the state.

On December 23, 1963, the defendant, Joe Willie Childs, appellant herein, was arrested by the Columbus police in connection with two armed robberies that occurred on December 17 and December 19 of that year in the city of Columbus.

The defendant was kept in police custody until December 30, when he was taken before a Municipal Court judge who ordered him held for action by the grand jury. He was not represented by either retained or appointed counsel during this time, and, being unable to post bond he remained in jail.

On February 27, 1964, the grand jury returned an indictment which charged the defendant with two counts of armed robbery and one count of assault with intent to kill.

At the arraignment, on March 6, 1964, the defendant advised the court that he was indigent and requested counsel. Counsel was appointed on April 22, 1964, 121 days after arrest. The defendant filed notice of alibi, and the trial began on May 13, 1964. Counsel for defendant made no motion to delay the proceedings, and there is no allegation that the time for preparation for trial was insufficient.

Defendant was found guilty as charged and was sentenced to the Ohio Penitentiary.

On June 17, 1965, the Court of Appeals for Franklin County granted defendant's motion for leave to appeal and, on the merits, affirmed the judgment of the Court of Common Pleas. The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

C. Howard Johnson, Pros. Atty., and David H. Bodiker, for appellee.

Gerald A. Messerman, Columbus, for appellant.

PAUL W. BROWN, Judge.

The appellant raises four questions of law, which are as follows:

1. The delay in appointment of counsel denied the incarcerated appellant a fair trial by allowing the memories of his alibi witnesses to grow dim before the preparation of his defense could begin.

2. The erroneous admission of an out-of-court statement by an alleged co-conspirator which implicated the appellant in one of the charged offenses denied the appellant a fair trial by depriving him of the opportunity to confront and cross-examine his accuser.

3. The charge to the jury on alibi relieved the state of the duty of establishing guilt beyond a reasonable doubt by tending to shift the burden of proof to the defendant.

4. The trial court compelled the jury to agree upon a verdict, whether or not it reflected the independent judgment of each juror, by stating, 'this being a criminal action it requires all twelve of you to agree upon a verdict,' and by failing to add that independent judgment was not to be forsaken for the sake of unanimity.

We shall consider each question of law separately in the order in which they appear above.

The first question of law is based upon the inordinate length of time between arrest and the appointment of counsel. The defendant was in jail and without counsel for 121 days. He argues that during this time there was no way to fix in the minds of his alibi witnesses the events of December 17 and December 19, and that their memories dimmed sufficiently to make them vulnerable to cross-examination, resulting in a trial that could not be fair.

The claimed legal deprivation underlying appellant's largely factual argument seems to be the denial of counsel at a critical stage of the proceedings.

This argument may be divided into two parts. In the first part, the defendant argues that there was a possible, but unprovable, prejudice inherent in the delay in contacting his alibi witnesses, caused by the delay in appointing counsel. He then asserts that the possibility of prejudice is enough to require reversal, and for the support of this assertion he relies upon Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, which holds that a constitutional error in criminal cases must be harmless beyond a reasonable doubt in order to be considered harmless. This reliance is misplaced. The Chapman rule applies only to the test of harmlessness when there is a constitutional error, and has no application in deciding whether such an error exists. There is no established per se constitutional error here.

In the second part of his argument the defendant attempts to show there is per se constitutional error because counsel was denied at a critical stage of the proceedings.

There is a basic difference, however, between the need for a lawyer in this case and the need for a lawyer in the 'critical stage' cases, such as Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; and United States v. Wade, 385 U.S. 811, 87 S.Ct. 81, 17 L.Ed.2d 53. In those cases, an attorney was needed for legal services, as the 'stage' was some point in the prosecution where important legal decisions were necessary or where a confrontation of legal significance occurred, i. e., pleas had to be made or defenses were lost (Hamilton v. State of Alabama), or pleas made would be available in evidence later (White v. State of Maryland), or firm identification judgments would be made without being subject to the truth testing of cross-examination (United States v. Wade). Here, on the other hand, the claimed need for an attorney was primarily for contacting the alibi witnesses soon after the events in order to direct their attention toward those events in order to remember them. In such a case, counsel would be performing only a notification function, and not a legal advice-giving or truth-testing function that only a lawyer can perform. In most cases, including this one, such notification would not require legal expertise.

This claim presents a new question that has not been authoritatively decided heretofore. If we are to hold that the defendant was denied counsel at a critical stage of the proceedings against him we must do so on the facts of this case, as there is no authority to do so on the basis of stare decisis.

After a careful consideration of the facts we do not think the requested extension of the constitutional right to counsel is warranted.

In the first place, the alibi witnesses of the defendant were not strangers who would not be expected to have any idea of the importance of remembering the events of December 17 and 19 until contacted by appellant's attorney four months later. Instead, his five witnesses were his mother and stepfather, both of whom lived in the same house with him, and three friends, two of whom lived in the same house and one other who was arrested at about the same time and apparently for one of the same offenses for which defendant was indicted. All that these friends and relatives needed to know were the dates that the defendant supposedly robbed the markets, and their memories would immediately have been directed to when they saw him on those days. It would be unreasonable to assume, without any proof whatsoever, that for four months after Joe Willie Childs was arrested these particular people, as close as they were to the defendant, had no idea of the offenses for which he was arrested.

Moreover, the testimony of defendant's witnesses, as disclosed by the bill of exceptions, does not support defendant's assertion that their lack of memory was attributable to defendant's lack of counsel early in the pretrial period; nor does it support an inference of forgetfulness as strongly as it supports an inference of fabrication. The defense witnesses, with one exception, seemed to remember things clearly and certainly on direct examination, becoming forgetful only on cross-examination.

Throughout his brief the defendant overstresses the unprovability of this particular claim of prejudice. Although clear proof of the prejudice itself might have been impossible, proof of the circumstances giving rise to substantial potential prejudice was not impossible, and such proof was essential. We cannot presume prejudice under the circumstances shown by this record. Defendant, with counsel, having failed to claim trial or pretrial prejudice at the time of trial, and having failed to establish at that trial any evidentiary basis for a finding of potential prejudice of a substantial nature, now...