State v. Chuckie Rutherford, William Darby, and Kenneth Jones, 81-LW-4222
| Decision Date | 25 February 1981 |
| Docket Number | 81-LW-4222,9522,9523,9521 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. CHUCKIE RUTHERFORD, WILLIAM DARBY, and KENNETH JONES,Defendant-Appellants. C.A. |
| Court | Ohio Court of Appeals |
APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF SUMMIT, OHIO CASE NO. 79 3 424.
LYNN SLABY, Prosecuting Attorney, City-County Safety Bldg., Akron OH 44308 for Plaintiff-Appellee.
CHRISTOPHER T. CHERPAS, Attorney at Law, 907 Akron Savings & Loan Bldg Akron, OH 44308 for Defendant-Appellant.
GEORGE PAPPAS, Attorney at Law, 1007 Centran Bldg., Akron, OH 44308 for Defendant-Appellant.
ELIZABETH REILLY, Attorney at Law, 73 E. Mill St., Suite 300, Akron, OH 44308 for Defendant-Appellant.
B. N METZ, Attorney at Law, Peoples Federal Bldg., Suite 505, 39 E. Market St., Akron, OH 44308 for Defendant-Appellant.
DECISION AND JOURNAL ENTRY
This cause was heard September 22, 1980, upon the record in the trial court, including the transcript of proceedings, and the briefs. It was argued by counsel for the parties and submitted to the court. We have reviewed each assignment of error and make the following disposition:
On June 28, 1979, Chuckie Rutherford, William Darby, Kenny Jones, and Sharon Briggs, aka Knight, were secretly indicted by a Summit County Grand Jury. The indictment contained sixteen criminal counts and involved twenty-four different individuals. All of those who were the subjects of this indictment entered pleas of guilty prior to trial except the three appellants and Sharon Briggs.
Rutherford, Jones, and Darby maintained pleas of not guilty and were thereafter tried and convicted by a jury. Briggs, tried jointly with these three, was found not guilty. The appellants now seek to reverse their convictions and raise a combined total of sixteen assignments of error.
Assertions of error concern each of the major segments of the trial experience: pre-trial, trial, and verdict. As the nature of the cause against defendants contributed to the complexity of the trial proceedings, so the appeal from the judgments rendered therein presents the potential for confusion by reason of related claims of error and the varied individual views on those claims.
For the purposes of clarity and brevity, we have chosen to utilize the most inclusive language of the multiple claims of error when appropriate. That is, when claims of error are similar, we summarize and address them as one idea shared by each appellant as opposed to rewriting the words of each similar contention presented by each individual defendant. Moreover, we discuss the arguments in the order in which they arose during the course of the proceedings. Initial designations for Rutherford (R), Jones (J), and Darby (D) are utilized only for the purpose of delineating the assignments of error. The numerical designation following each initial has reference to the numbered error assigned by the appellant in question.
In his second assignment of error (J-2) Jones argues:
"Full and proper discovery was not provided by the state or compelled by the court prior to trial though in the possession of the state and repeatedly sought by appellant."
We reject this assignment of error. The subject was considered in detail during a lengthy hearing conducted by the trial judge. Witnesses testified, and argument was heard from each of the appellants. We find no error in the court's eventual ruling. See, State v. Hall, 48 Ohio St. 2d 325 (1976)
The next group of pre-trial claims of error involves the constitutionality of R.C. 2923.04. These assignments of error (D-5 and R-2) need no lengthy discussion. In connection with this claimed error, Jones maintains in assignment of error three that:
"R.C. 2923.04 organized crime is unconstitutional and the Indictment and Bill of Particulars were otherwise defective and insufficient at law, failing to provide that minimal specificity as to dates, conduct and participants required by law."
We are in accord with both the state's position and the defendants' arguments that State v. Young, 62 Ohio St. 2d 370 (1980) is dispositive of this issue and that the convictions based on R.C. 2923.04 must be reversed. Consequently, Darby's, Rutherford's, and Jones' convictions as they relate to R.C. 2923.04 and Count One of the indictment are overturned. Thus, Darby's fifth assignment and Rutherford's second assignment of error are found to be meritorious. Jones' third assignment of error insofar as it relates to the issue of the constitutional validity of the statute is also found to be meritorious.
Jones and Rutherford (J-3 and R-3) contend that they were deprived of a Bill of Particulars sufficient to provide each of them with sufficient information to make them cognizant of the nature and cause of the accusations of the state. The record of proceedings concerning this issue consumes a major portion of two volumes of transcript. (Vols. 1 and 1A).
It is something of an understatement to suggest that a certain measure of confusion surrounded the discussion concerning this complaint. In reality, a portion of that discussion does not relate to the question of the specificity of the Bill but rather to the legal questions of the proof required to support the state's cause of action in connection with the conspiracy charge.
Mindful that the trial involved seven weeks of intermittent legal warfare, it is difficult to conceive that the defendants were fatally prejudiced by a prosecutorial failure to be more specific in apprising the defendants of the allegations contained in the indictment. See, State v. Halleck, 24 Ohio App. 2d 74 (1970). The question of whether the allegations in an indictment are sufficient to inform a defendant of what he must be prepared to meet is a practical question to be answered by a practical or reasonable inquiry. Williamson v. U.S., 310 F. 2d 192 (9th Cir., 1962). On this basis, we must reject the assigned errors.
Rutherford directly and Jones more obliquely (R-1, J-1) contend that the trial court erred in failing to grant a motion for suitable polygraph examinations. It appears that defendants' claim is bottomed upon the reasoning that deprivation of the polygraph study of defendants' version of the state's allegations deprives defendants of evidence vital to their defense.
We disagree. No rule of law imposes upon the trial court an affirmative duty to comply with such a request. Cf. State v. Levert, 58 Ohio St. 2d 213 (1979); State v. Souel, 53 Ohio St. 2d 123 (1978); McCroskey v. U.S., 339 F. 2d 895 (8th Cir., 1965). Furthermore, no showing has been made that the defendants were prejudiced by the discretionary act of the court in denying such a request. Cf. State v. Smith, 50 Ohio App. 2d 183 (1976); State v. Moore, 47 Ohio App. 2d 181 (1973); U.S. ex rel. Sadowy v. Fay, 284 F. 2d 426 (2nd Cir., 1960). This claim of error is without merit.
Each of defendants raises a substantial claim of error in connection with the activities of the trial jury during the course of the trial. (J-5, D-4, R-4). A brief recapitulation of the actions of certain members of the trial jury is necessary to our opinion.
Well into the trial (T.O.P. 969 et seq.), Mrs. Jayne Pontius, a relative of a defendant, testified that she had overheard a conversation among three or four people she believed to be sitting jurors. As we understand it, the conversation took place during a break in the trial near or next to the doorway leading from the jury room into the hallway where Mrs Pontius was using a pay telephone.
She first repeated a juror's conversation as:
"***'Irregardless, if Darby didn't give, receive money,' he said, 'it was still a transaction because he gave him the cocaine."'
"***." (T.O.P. 972).
She amended her recollection a bit later adding to the conversation overheard, as:
"***." (T.O.P. 977).
Examined on the difference between her recollections, she reiterated that the speaker had used the word "guilty."
The jury was, thereafter, called into the court and Mrs. Pontius was able to identify three of the jurors as the men engaged in conversation outside the jury room. The first of these, Mr. Menasian, examined under oath, did recall discussing what a transaction was but not in reference to any defendant. (T.O.P. 985). He did not recall the identity of the persons who engaged in the conversation and denied any recollection of having used the word "guilty." (T.O.P. 987, 990). He also denied both the use of Darby's name (T.O.P. 990) and having formed an opinion as to the guilt or innocence of any of the defendants. (T.O.P. 993). He did admit forming an opinion as to the meaning of the term "transaction." (T.O.P. 994).
Juror Mullin recalled a conversation with another juror or jurors (T.O.P. 1003) but did not recall the subject thereof including any mention of the word "transaction." In essence however, he admitted discussing the testimony of a witness specifically that of John Mash with another juror. (T.O.P. 1003-1005).
A third juror, Mr. Friedman, denied hearing anything of the conversation in question. (T.O.P. 1007, 1009).
All defendants moved for a mistrial after which Mullin, Menasian, and Friedman were interrogated concerning whether they had discussed the same subject matter with other members of the panel. Each answered in the negative.
At the suggestion of the prosecutor, the court adopted an alternative to the granting of the mistrial motions. It excused jurors Menasian and Mullin and replaced them with alternates....
To continue reading
Request your trial