State v. Cutcher

• Decision Date: 13 February 1969
• Citation: State v. Cutcher, 17 Ohio App.2d 107, 244 N.E.2d 767 (Ohio App. 1969)
• Parties: , 46 O.O.2d 156 The STATE of Ohio, Appellee, v. CUTCHER, Appellant.
• Court: Ohio Court of Appeals

Page 107

17 Ohio App.2d 107

244 N.E.2d 767, 46 O.O.2d 156

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

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

Feb. 13, 1969.

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

James J. Carroll, Cleveland, for appellant.

CORRIGAN, Judge.

The single question presented in this appeal on questions of law is whether the defendant, appellant herein, was denied due process of law by reason of inadequate and ineffective representation by his counsel at his trial.

A jury in the Court of Common Pleas of Cuyahoga County found defendant guilty of the crimes of burglary, rape and sodomy committed during the night of August 20, 1966, upon the home and person of Mrs. Glenna Watson.Motion for new trial on his behalf was seasonably filed and overruled by the trial judge and the further claim of error is urged to us that the trial court abused its discretion by so refusing to grant a new trial for the reason of inadequate and ineffective representation of counsel during his trial.

The record shows that during the night in question the complainant, a divorcee, living in the upstairs suite of a two-family dwelling with her three minor children and a dog, went to bed at 1:00 a. m. She testified that she was awakened around 2:00 a. m. by the barking of her dog which was in the suite.She then saw a man walk by her bedroom door, turn off the living room light and come into her bedroom.She said he placed his hand over her mouth, told her to keep her eyes closed and not to make an outcry 'because he wouldn't want to hurt anyone * * *,' then had sexual intercourse with her, and finally compelled her to submit to fellatio with him.

Complainant testified that she got rid of the intruder by asking him to let the barking dog out of the apartment.The man obliged and was in the process of coaxing the dog to the stairway when she shoved him through the open doorway, and as he stumbled down the stairway she slammed the door shut.She immediately screamed for help and called the police.

Present counsel for defendant cites several instances in the course of the trial which he argues demonstrate inadequate and ineffective representation by the trial defense counsel.Pointed out in defendant's brief as a flagrant example is the following question and answer sequence occurring during trial counsel's direct examination of defendant:

'Q.I am going to show you a photo, and we will introduce it as exhibit 1-

'The Court: Has it been marked?(Marked 'Defendant's Exhibit 1.')

'Q.Is that photo of you?A.Yes.

'Q.When was that photo taken?A. April 25, 1960.

'Q.Will you tell the court what you can recall about that photo, and how it happened?A.Yes.The real reason I can't tell because you won't believe me, but I was charged with incest, assault and battery and, I think there was another charge, at this time, by a niece of mine, a sister of the girl that testified a while ago, and, at the same time, this niece that was in here a while ago, she, also, testified at that time, because, she told me, which I never found out until just-In fact, last week was the first she ever told me the reason she did say it was me was because her mother threatened to beat her and, knowing her mother, I could easily believe that anybody else that knew her would easily believe it, too.But, anyway, I was tried for it, and we proved in court that it wasn't-I was found not guilty.That was the reason for that picture.

'Q.Were you dismissed in that action?A.Yes.

'The Court: Are you offering this exhibit in evidence?

'Defense counsel: Yes, your Honor.

'Prosecutor: We will stipulate, your Honor, that it may be entered in evidence.

'The Court: Let the record show that the exhibit is being shown to the jurors.

'Prosecutor: We have no objection, your Honor.(Thereupon defendant's Exhibit 1 was received in evidence.)

'* * *.'

The magnanimity of the attorney representing the state in facilitating the reception into evidence of this damaging, prejudicial item of evidence is notably, if not nobly, impressive.Dissimilar from Virgil, defendant's trial counsel did not fear a worthy adversary, from Danaos or others, bearing gifts.It is clear that in Ohio and in many other jurisdictions if the prosecutor had interrogated defendant about this prior indictment, such conduct would have represented reversible error.Wagner v. State(1926), 115 Ohio St. 136, 152 N.E. 28;State v. Cole(1958)107 Ohio App. 444, 155 N.E.2d 507;City of Columbus v. Mercer(1963), 118 Ohio App. 394, 194 N.E.2d 901; 15 Ohio Jurisprudence 2d 536-539, Criminal Law, Section 366;23A C.J.S.Criminal Law, § 1100, p. 183.However, in fairness it must be added that any harm thereby to defendant's right to a fair trial with all his constitutional guarantees fully protected did not originate in the fecund mind of the alert prosecuting attorney but rather was contrived by defendant's trial counsel, and for whatever imagined tactical or strategic trial reason, it is impossible, from the record, to ken.

In effect, to further traumatize the impairment of defense effort occasioned solely by this flagrant instance of farcical inefficiency of trial counsel, the court in its general charge instructed the jury in part as to defendant's testimony as a witness:

'* * *.

'Any testimony presented with reference to the previous involvements of the Defendant in criminal matters is not to be considered by you as positive, as evidence or substantive evidence of the commission of this particular crime.It is only to be considered by you in connection with the determining the weight or credibility that you will attach to his testimony.

'* * *.'

Obviously, the careful, cleansing instruction by the court in State v. Witsel(1944), 144 Ohio St. 190, 58 N.E.2d 212, is not present in the record of the case before us.Thus the prejudicial testimony in all probability remained in the minds in all jurors.The quoted part of the court's charge is neither correct nor proper in the light of the record.This testimony with reference to defendant's involvement in one previous criminal matter was presented to the jury by the defense on direct examination of defendant.Certainly, it could not have been the defense purpose to enter such evidence to lessen the weight thereof or to occlude the idea of defendant's veracity.And even if such was the purpose, then it was inadmissible from either side, because defendant was exculpated.If there existed another reason why such testimony was permitted, then the jury was in the dark about it.

It should be pointed out that this part of the court's general charge was probably correct in the context of another of defendant's criminal involvements relating to nonsupport of a minor child which was elicited on cross-examination by the state.However, the trial court did not separate and distinguish these portions of the evidence nor was such a request made by defendant's trial counsel.But again, the initial ineptitude was the creature of defendant's trial counsel's judgment to the detriment and prejudice of the defense, and anything subsequent which focused attention on the first gross error only compounded the latter.

Prior to examining the authorities on the constitutional requirements of 'assistance of counsel' several other examples of trial counsel's questionable efficiency should be noted.The record reveals that trial counsel in his preliminary investigation apparently had understood the downstairs neighbors of complainant to have said that the man they saw departing from the scene of the crime on the night in question was not the defendant.At the trial, however, these witnesses on direct examination were emphatic in stating that they could not say whether the defendant was or was not the man.Then, trial counsel, although apparently not finished with his cross-examination of the complainant, dismissed her, subject to future recall.Later, in the course of the trial, counsel on two occasions attempted to recall the complainant for further questioning but she was not available.Trial counsel had neglected to issue a subpoena for her appearance and as a consequence she was not required to be present when he felt that she was further needed as a witness.Another unpracticed, maladroit blunder occurred during the cross-examination of the complainant when trial counsel asked a revolting, sickening query of this victim in reviewing the details of one of the actsshe was forced to engage in during the attack, which question could have no possible effect except to inflame the members of the jury against him and his client.An objection to the query was sustained by the court but immediately the prosecutor withdrew his objection.There was no further camment by the court but the record shows that defendant's counsel asked the court for a recess 'so that she can get her composure.'

The rules defining competency of counsel have been delineated in many federal and state cases.Powell v. Alabama(1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527;Glasser v. United States(1942), 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680;White v. Ragen(1945), 324 U.S. 760, 764, 65 S.Ct. 978, 89 L.Ed. 1348;Hawk v. Olson(1945), 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61;Michel v. Louisiana(1955), 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83;United States ex rel. Feeley v. Ragan(C.A. 7th Ill.1948), 166 F.2d 976;Tompsett v. Ohio(C.A. 6th Ohio1944), 146 F.2d 95;Schaber v. Maxwell(C.A. 6th Ohio1965), 348 F.2d 664;Cornwell v. State(1922), 106 Ohio St. 626, 140 N.E. 363;Sopko v. Maxwell(1965), 3 Ohio St.2d 123, 209 N.E.2d 201;Jackson v. Maxwell(1962), 174 Ohio St. 32, 186 N.E.2d 725;Kramer v. Alvis(1956), 103 Ohio App. 324, 141 N.E.2d 489;People v. Ibarra(1963), 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487;Shack v. State(1967), 231 N.E.2d 36(S.Ct.Ind.).Also, see cases cited in 74 A.L.R.2d 1390...