State v. Diehl

• Decision Date: 29 July 1981
• Docket Number: No. 80-1655,80-1655
• Parties: , 21 O.O.3d 244 The STATE of Ohio, Appellant, v. DIEHL, Appellee.
• Court: Ohio Supreme Court

Page 389

67 Ohio St.2d 389

423 N.E.2d 1112, 21 O.O.3d 244

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

No. 80-1655.

Supreme Court of Ohio.

July 29, 1981.

James A. Berry, Pros. Atty., and James W. Skogstrom, Springfield, for appellant.

James N. Griffin, Springfield, for appellee.

PER CURIAM.

In support of his argument that the reversal of his convictions should be affirmed, appellee contends that (1) the state improperly used McGhee's grand jury testimony as substantive evidence of appellee's guilt, and (2) the introduction of McGhee's grand jury testimony violated appellee's Sixth Amendment ¹ right of confrontation.

Under controlling Ohio law at the time of the trial of this cause, ² the condition precedent to the right of a party to cross-examine its own witness concerning a prior statement made by him that varies with the witness' current testimony is that the party be taken by surprise by the adverse testimony. State v. Minneker (1971), 27 Ohio St.2d 155, 158, 271 N.E.2d 821; State v. Duffy (1938), 134 Ohio St. 16, 15 N.E.2d 535. The decision as to whether a party is taken by surprise by the testimony of its hostile witness is a decision that is entrusted to the broad, sound discretion of the trial judge. State v. Minneker, supra; United States v. Duff (C.A. 6, 1964), 332 F.2d 702. We have examined the record in this case and agree with the finding of the trial court and the conclusion of the Court of Appeals that the state was surprised by McGhee's trial testimony. The courts below correctly decided that the state had a right to believe that McGhee would not willfully contradict, under oath, his prior grand jury testimony, thus subjecting himself to a potential perjury charge. Therefore, the trial court did not abuse its discretion in declaring McGhee to be a hostile witness.

As the transcript demonstrates, McGhee's trial testimony differed radically and materially from his prior testimony before the grand jury. The prosecutor, in reading McGhee's grand jury testimony to him, did so for the purpose of affording him ample opportunity to correct his mistakes or omissions. It is imperative to note that the prosecutor did not, in refreshing McGhee's recollection, offer the grand jury testimony as substantive evidence of appellee's guilt or for the purpose of impeaching the witness. Stated differently, the grand jury testimony was employed not for the purpose of proving that appellee forged a check or received stolen property, but rather, for the purpose of refreshing McGhee's memory. As this court stated in Hurley v. State (1888), 46 Ohio St. 320, 323, 21 N.E. 645:

" * * * The recollection of the witness may be so refreshed by directing his attention to a former conversation or declaration, as to cause him promptly to correct his testimony or explain the apparent inconsistency. For this purpose such examination may afford valuable aid in judicial investigation; and, if it be competent at all for that purpose, the reason for admitting it would seem to require, that the examination should be allowed to extend so far as to permit the former statements to be repeated to the witness, and inquiry to be made of him concerning them; for the repetition of the statement itself, referring to the circumstances of its utterance, would be the most likely means of awakening the recollection of the witness, enabling him to recall the facts, satisfy him of his mistake, and induce a correction or explanation. Or, if the witness be a perverse or false one, such examination may serve to probe his conscience, and move him to relent and speak the truth. We think it a reasonable rule, that a party who calls a witness, and is taken by surprise by his unexpected adverse testimony, may be permitted to interrogate him in respect to declarations and statements previously made by him which are inconsistent with his testimony, for the purpose of refreshing his recollection and inducing him to correct his testimony, or explain his apparent inconsistency, and for such purpose his previous declarations may be repeated to him; and he may be called upon to say whether they were made by him."

Our reading of the trial transcript ³ compels us to conclude that the prosecution properly directed McGhee's attention to his prior, conflicting grand jury testimony for the purpose of refreshing McGhee's recollection and inducing him to explain the apparent inconsistencies between his trial testimony and his grand jury testimony. We also observe, parenthetically, that there is no indication in the record that defense counsel requested a limiting instruction from the court in order to explain to the jury the purpose for which this grand jury testimony was being used. Thus, through this point in the trial, the prosecutor's examination of McGhee was, in light of all the factors, routine and proper.

However, the trial court erred in allowing the prosecutor to call, as a witness, the court reporter who had transcribed McGhee's grand jury testimony and in permitting her to read, into evidence, the identical portion of the grand jury testimony that the prosecutor had used in attempting to refresh McGhee's recollection. While it is beyond our purview to second-guess prosecution strategy, we are unable to understand the tactical rationale of calling the reporter as a witness. Using another witness, like the reporter, to read McGhee's grand jury testimony into evidence to prove his inconsistent statements violates the principle of not impeaching one's own witness, as established in State v. Dick (1971), 27 Ohio St.2d 162, 271 N.E.2d 797; State v. Minneker, supra; State v. Duffy, supra; Hurley v. State, supra.

Conceding that the court reporter's testimony was erroneously allowed, the focal point of this case then becomes whether such error was prejudicial to appellee. Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; State v. Eubank (1979), 60 Ohio St.2d 183, 398 N.E.2d 567; State v. Adams (1978), 53 Ohio St.2d 223, 374 N.E.2d 137; State v. Lytle (1976), 48 Ohio St.2d 391, 358 N.E.2d 623; State v. Abrams (1974), 39 Ohio St.2d 53, 313 N.E.2d 823.

It must be emphasized that the court reporter read the identical portion of the grand jury testimony that the prosecutor had used in attempting to refresh McGhee's recollection. Thus, the jury had already heard this grand jury testimony by the time the court reporter repeated it. While, as previously indicated, allowing the court reporter to testify in this fashion was erroneous, we are unable to discern any harm to appellee's cause from the rote repetition of grand jury testimony with which the jurors were already familiar. Thus, the court reporter's testimony added nothing prejudicial to the record. Consequently, under the unique facts of the case at bar, we conclude that the admission of the court reporter's testimony was harmless beyond a reasonable doubt. Chapman v. California, supra.

We summarily reject appellee's contention that the use of McGhee's grand jury testimony violates his constitutional right to confront his accusers. A careful reading of the Confrontation Clause cases from this and other courts reveals that a constitutional issue is normally only raised when the prior testimony or statement of an unavailable witness is used at a subsequent trial as substantive evidence of guilt of a defendant. See Ohio v. Roberts (1980), 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (admission at defendant's prosecution of testimony of unavailable witness given at defendant's preliminary hearing under questioning of defense counsel, held not violative of Sixth Amendment's Confrontation Clause). See, also, California v. Green (1970), 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489; Barber v. Page (1968), 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255; State v. Madison (1980), 64 Ohio St.2d 322, 415 N.E.2d 272. The case at bar is readily distinguishable from the foregoing precedent because (1) McGhee was available and testified at the trial, and (2) his grand jury testimony, as previously discussed, was principally used to refresh his recollection and not used as substantive evidence of appellee's guilt. ⁴

A case like this compels us to make, in conclusion, several observations. First, one reason we sanction the prosecutor's use of the grand jury testimony to refresh McGhee's recollection is because this tactic, as articulated in Hurley v. State, supra, is designed to elicit fully the facts material to this case.

Secondly, to tolerate the chicanery of McGhee in this case ⁵ is an affront not only to the prosecutor's attempt to enforce the law, but also to the people of Ohio, whom the prosecutor represents. To affirm the Court of Appeals in this case would be to legitimatize one more headwind to effective law enforcement. This we refuse to do.

As Justice Cardozo so perceptively stated in Snyder v. Massachusetts (1934), 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674: " * * * But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained til it is narrowed to a filament. We are to keep the balance true.

" * * * There is danger that the criminal law will be brought into contempt that discredit will even touch the great immunities assured by the Fourteenth Amendment if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free."

For the foregoing reasons, the judgment of the Court of Appeals is reversed.

Judgment reversed.

FRANK D. CELEBREZZE, C. J., and SWEENEY, LOCHER, HOLMES and CLIFFORD F. BROWN, JJ., concur.

STEPHENSON and PAUL W. BROWN, JJ., dissent.

STEPHENSON, J., of the Fourth Appellate District, sitting for WILLIAM B. BROWN, J.

STEPHENSON, Justice, dissenting.

I fully concur in the majority opinion with respect to the conclusions therein that the introduction of the grand jury testimony of McGhee...