State v. Dacons

• Decision Date: 04 May 1982
• Citation: 5 Ohio App.3d 112,449 N.E.2d 507,5 OBR 227
• Parties: , 5 O.B.R. 227 The STATE of Ohio, Appellee, v. DACONS, Appellant. *
• Court: Ohio Court of Appeals

Page 112

5 Ohio App.3d 112

449 N.E.2d 507, 5 O.B.R. 227

The STATE of Ohio, Appellee, v. DACONS, Appellant. ^*

Court of Appeals of Ohio, Tenth District, Franklin County.

May 4, 1982.

Syllabus by the Court

Evid.R. 607 is consistent with the prior common-law rule of State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 , insofar as it permits the trial court to call, as its witness, a witness whom the state requests the trial court to call, and the state may impeach said witness with prior inconsistent statements even though the state cannot demonstrate surprise.

Michael Miller, Pros. Atty., and Karen L. Martin, Columbus, for appellee.

G. Rand Smith and Christopher J. Minnillo, Columbus, for appellant.

MOYER, Judge.

This matter is before us on defendant's appeal from a judgment of the Court of Common Pleas of Franklin County on a jury verdict finding defendant guilty of voluntary manslaughter. Defendant admitted killing Anthony Lee Evans with a shot from a semi-automatic .22 caliber rifle. Defendant asserted that he shot Evans in self-defense as Evans approached defendant in his front yard, threw a beer bottle at him and reached into his pocket as if to reach for a knife. Defendant asserts the following three assignments of error in support of his appeal:

"I. It was an abuse of discretion and prejudicial error for the trial court to call Vernon Cauthon as its own witness, and thereafter allow the state to impeach the witness with prior inconsistent statements.

"II. Even if it were proper for the court to call Vernon Cauthon as its own witness, it was prejudicial error for the court to allow the state to impeach this witness by means of prior inconsistent statements.

"III. The verdict of guilty was against the manifest weight of the evidence."

We will consider the third assignment of error first. The third assignment of error is overruled because there is sufficient evidence in the record from which the jury could have reasonably concluded that defendant shot Evans at a distance that indicates defendant did not act in self-defense. State v. Swiger (1966), 5 Ohio St.2d 151, 214 N.E.2d 417 . The evidence supporting the verdict of voluntary manslaughter consists of testimony that the only blood observed was on the curb line of the house across the street from defendant's house where he claims the victim put him in fear of his life; testimony that there was no blood on the driveway of defendant's house; testimony of the deputy coroner that there were no powder burns on the victim, which indicates that the shot was fired some distance away from the victim; testimony that the ruptured artery caused by the bullet would have resulted in rapid squirting of blood within seconds, which would have prevented the victim from walking any significant distance; testimony that no knife was found; and testimony of the owner of the house across the street from defendant's house that the victim came to her door, was bleeding profusely on her front porch, and then went to a tree in her front yard, where he died.

The evidence on behalf of the defendant consisted of considerable testimony indicating that Evans had threatened defendant several times prior to the incident and had repeatedly come to defendant's house to visit defendant's daughter after defendant had told him he was not permitted in the house. Defendant testified that Evans became enraged at him after defendant told Evans to leave his house and that, as he walked toward defendant's house, Evans opened a knife, threw a beer bottle at defendant, and then reached into his pocket, at which time defendant shot him.

The transcript also includes the testimony of Vernon Cauthon, defendant's ten-year-old nephew. That testimony, which conflicted with Cauthon's prior statements to the police, is the subject of assignments of error one and two.

It is the jury's responsibility to determine the credibility of the witnesses and to determine the ultimate facts in the case. There is no indication that the jury lost its way in this case, and the third assignment of error is overruled.

The first and second assignments of error are interrelated and are considered together. Evid.R. 607 provides in pertinent part as follows:

"The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. * * * "

Evid.R. 614 provides for the calling and interrogation of witnesses by the court in pertinent part as follows:

"(A) Calling by Court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

"(B) Interrogation by Court. The court may interrogate witnesses, in an impartial manner, whether called by itself or by a party."

Vernon Cauthon, defendant's ten-year-old nephew, was in defendant's house watching the incident that led to the shooting of Evans. When Cauthon was called by the prosecutor to testify on behalf of the plaintiff, he said that, at the time of the shooting, he was standing in his open bedroom window and from there he could see Evans standing across the street cursing and pointing at defendant's house. He testified that Evans crossed the street onto defendant's sidewalk and that defendant was standing on his own front porch. He further testified that he saw defendant enter his house and come out with the rifle and then saw Evans, who was standing on the corner of defendant's driveway, throw a bottle at defendant, who by that time was also on the driveway. The witness stated that he turned his head, heard a gunshot, and then saw Evans crossing the street to the neighbor's front yard.

When this testimony was offered, the plaintiff, in a bench conference, indicated that it differed from statements Cauthon had made to police detectives on the night of the shooting and the next day. Plaintiff's counsel requested the court to call Cauthon as its witness in order that plaintiff's counsel could question Cauthon regarding his purported prior inconsistent statements. The court acknowledged that plaintiff could not impeach Cauthon by reference to his inconsistent statements because plaintiff was not surprised. The trial court then called Vernon Cauthon as its witness "in order to give both sides the clear opportunity to cross-examine this Defendant [sic ] for the full range of cross-examination, allowed by law and also the Court has, feels that although it's calling as the Court's witness, the Court is not going to ask any questions of this witness at this time."

The jury was not advised that Cauthon had become the court's witness when plaintiff's counsel resumed his questioning of Cauthon. Cauthon then denied telling the detectives that Evans never crossed the street onto defendant's property, and that defendant shot Evans while Evans was standing across the street from defendant's house. He also denied telling the detectives that Evans was on the curb across the street when he threw...