State v. Clark
| Decision Date | 03 May 1974 |
| Citation | 40 Ohio App.2d 365,319 N.E.2d 605 |
| Parties | , 69 O.O.2d 324 The STATE of Ohio, Appellee, v. CLARK et al., Appellants.* |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. A law officer in the process of making an arrest under a valid peace warrant, after compliance with R.C. 2935.12, may utilize the procedures of that section to force entrance.
2. A law officer making a valid arrest under a peace warrant may conduct a reasonable search incident to the arrest.
3. A statement of a defendant which is faulty for lack of the warnings required by Miranda v. Arizona (1966), 384 U.S. 436, may be used to test his credibility on cross-examination if he takes the stand and testifies contrary to the statement.
4. A trial court's finding that photographs offered in evidence do not meet the accurate representation standards necessary for admissibility will not be disturbed where the record is insufficient for a determination that the trial court abused its discretion.
5. Where there is a conflict in the evidence, it is the function of the jury to resolve it through its verdict. A reviewing court will not disturb the verdict on the ground that it is against the manifest weight of the evidence when there is evidence in the record upon which reasonable minds could conclude as the jury did.
6. An assistant county prosecutor's out of court threat to a defense witness is not prejudicial to a defendant's right to a fair trial as a matter of law. An assistant county prosecutor's action, which may be conduct unbecoming a lawyer, is dealt with in separate contempt proceedings rather than automatically declaring a mistrial. However, if the record would show that the witness was affected by the threat to such an extent that his testimony would be different in both form and substance, and that the defendant would be denied his right to a fair trial and be prejudiced by the assistant county prosecutor's action toward a witness, a trial court should declare a mistrial.
John T. Corrigan, Cleveland, for appellee.
Frederick L. Ferrell, Cleveland, for appellant.
Assignments of error one, two, three, four, five, six and seven are not well taken, and the judgment is affirmed.
We agree with Judge Day's decision, which follows this majority opinion, in overruling assignments of error one, five and six, and that part of seven which claims the defendants were not proven guilty beyond a reasonable doubt. We do not concur in his decision in regard to assignments of error two, 1 three and four. The lack of concurrence in three and four results in our disagreement also with his conclusion that these defendants were denied a fair trial and due process as claimed in part of assignment of error seven.
Assignments of error three and four are not well taken and warrant some explanation of our conclusion with respect to them.
After defense witness Walsh testified on direct examination he had an unpleasant exchange of words with Assistant County Prosecutor Lazzaro. This dialogue took place in the hall of the courthouse during a recess and out of the presence of the jury. Mr. Lazzaro threatened Mr. Walsh, and a summary of this exchange is contained in Judge Day's opinion.
Following the confrontation between Walsh and Lazzaro, the parties returned to the courtroom wherein defense counsel made a motion for a mistrial based on the foregoing event. A voir dire hearing was held by the court out of the presence of the jury and Walsh confirmed that the altercation took place and that he was threatened by Lazzaro but that it would not affect his testimony as to the statements he would make or his manner of testifying.
The trial court, in effect, overruled the motion for a mistrial and permitted Walsh to continue his testimony when the trial resumed.
In separate proceedings out of the hearing of the jury the trial court found Lazzaro guilty of contempt for conduct unbecoming a lawyer and fined him $50.
The question to be resolved is whether the out of court confrontation between defense witness Walsh and Assistant County Prosecutor Lazzaro prejudiced the defendants' right to a fair trial. While we abhor the tactics of the County Prosecutor, the penalty for his conduct was properly handled by the trial court in contempt proceedings which were separate and apart from the defendants' trial and out of the presence of the jury.
We are not prepared to say that such out of court conduct is prejudicial to a defendant's right to a fair trial as a matter of law. The answer to such conduct unbecoming a lawyer is by separate contempt proceedings which was done in this case, rather than by automatically declaring a mistrial. If the record did show that the witness was affected to such an extent that his testimony would be different as to form and substance, and that the defendant would be denied his right to a fair trial and be prejudiced by the Assistant County Prosecutor's actions toward the witness, the trial court should have declared a mistrial.
However, upon reviewing the entire transcript of testimony, we find that the entire unpleasant, out of court episode between Walsh and Lazzaro did not affect the defendants' right to a fair trial and did not prejudice the defendants, and that the third assignment of error is not well taken.
The fourth assignment of error deals with the Prosecutor's conduct during closing arguments, in which it is charged that he appealed to the passion and prejudice of the jurors and affected the defendants' right to a fair trial.
It is noted that the trial court advised the jury that arguments of counsel are not to be considered as evidence. It is well recognized that in many cases counsel for the defense and counsel for the State become enthusiastic and exuberant in expressing their views of the evidence. But unless such arguments are considered as appealing to the passion and prejudice of the jury to such an extent that it will affect the defendants' right to a fair trial, a reviewing court will not reverse on this basis.
We have reviewed the transcript of the Assistant Prosecutor's closing argument and conclude that it did not appeal to the passion and prejudice of the jury and did not affect the defendants' right to a fair trial and could not be considered prejudicial error. The fourth assignment of error is also not well taken. 2
Judgment affirmed.
This is an appeal by three defendants, hereafter called appellants, from a conviction of violation of R.C. 2901.23, 'Intentional Shooting'. The appellants assign seven errors. 3 The majority finds none of the assignments well taken. The majority affirms the conviction. I would find the second, third, and fourth assignments well taken and the seventh well taken in part. I would reverse. The basis of the disposition in this case is of such gravity that it warrants a formal opinion. Judge Krenzler has addressed the third and fourth assignments for the majority. 4 Except where there the contrary indications, the present opinion is the opinion of a unanimous court.
In this case, upon complaint made by a local merchant, peace warrants were issued by the Cleveland Municipal Court for the arrest of Appellant Curtiss Johnson and one Robert Hall. In an attempt to serve the warrants, the police proceeded to an address on Rawlings Avenue, the so-called headquarters of the Black Panthers and the National Committee to Combat Facism. A gun battle broke out as soon as the police attempted to gain admission to the house. This shooting resulted in the indictments leading to these convictions.
Appellants complain that evidence obtained after forcible entry into premises occupied by them was illegally obtained. This position is grounded entirely upon a claimed vice in the method of entry and a defective peace warrant (see Assignment of Error No. I, fn. 1). However, the policemen entering had peace warrants, the complaint upon which the peace warrants were issued conformed with all the requirements of R.C. 2933.02, and the complaint was made in writing and was sworn to before a magistrate, as defined in R.C. 2931.01. Moreover, the complainant stated that he had just cause to fear that Appellants Johnson and Robert Hall would commit an offense against his person, property, and child. 5
The magistrate before whom the complaint was made then issued the peace warrants commanding the arrests of the named defendants.
The police, in an attempt to serve the warrants and make the arrests, knocked on the door of the apartment where the defendants were believed to be. They identified themselves as police officers and said they had warrants for the defendants' arrest (Tr. 235). No response was given to the demand by the police to open the door, but noises were heard inside. The police proceeded to break in the door. At this point the shooting started.
R.C. 2935.12 authorizes the police to break down a door if they are refused admission, after giving notice of their intention to make an arrest. Before R.C. 2935.12 becomes applicable, the police must be either acting pursuant to a warrant for the arrest of a person charged with an offense, a search warrant, or they must be making an arrest.
While no offense was charged under the peace warrant, it did call for the police to arrest the named defendants. The police, were therefore, in the process of making a valid arrest, and as a consequence, any reasonable search incident to this valid arrest was proper. In addition, the discovery of evidence made pursuant to the execution of the warrant is admissible, State v. Jemison (1968), 14 Ohio St.2d 47, 52-53, 236 N.E.2d 538. Assignment of Error No. I lacks merit.
Appellant Clark was interrogated while in the emergency room for treatment of gun shot wounds. It is argued that he was in 'great pain' and that this was sufficient to establish that...
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