State v. Dinsio

• Decision Date: 08 July 1964
• Docket Number: No. 38346,38346
• Parties: , 27 O.O.2d 430 The STATE of Ohio, Appellee, v. DINSIO, Appellant.
• Court: Ohio Supreme Court

Page 460

176 Ohio St. 460

200 N.E.2d 467, 27 O.O.2d 430

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

No. 38346.

Supreme Court of Ohio.

July 8, 1964.

Syllabus by the Court

In a criminal case, where a claim of a witness that he can not be compelled to testify as a witness because of the privilege of immunity from self-incrimination is properly established, it is error prejudicial to the defendant for the court to permit counsel for the state, by continued questioning of the witness, which questions go unanswered, to get before the jury innuendoes and inferences of facts, conditions and circumstances which the state could not get before the jury by direct testimony of the witness.

Amil A. Dinsio was indicted on two separate counts which charge that on May 23, 1962, he did (1) steal a certain motor vehicle (1958 Diamond T dump truck) owned by the Sponhaltz Trucking Company, contrary to Section 4549.04, Revised Code, and (2) break and enter a certain uninhabited garage, in the night season, being the property of George Sponhaltz, contrary to Section 2907.10, Revised Code.

The prosecutor filed a bill of particulars which sets forth that the alleged crimes occurred 'at or about 1 a. m. eastern daylight time' on May 23, 1962. The defendant filed a notice of alibi, which sets forth that the defendant was at his place of residence, 1008 East Calla Road, Mahoning County, Ohio, when the alleged crimes occurred. After trial, the jury returned a verdict of guilty on the count of stealing the truck and not guilty on the count of breaking and entering the garage.

The defendant filed an appeal in the Court of Appeals, which court affirmed the judgment of the Common Pleas Court.

The cause is before this court upon the allowance of a motion for leave to appeal.

Edward D. Mosser, Prosecuting Atty., for appellee.

Lawrence V. Cregan and Jack W. Nybell, Youngstown, for appellant.

O'NEILL, Judge.

Defendant, for his second assignment of error, asserts that the Court of Appeals erred in holding that the trial court did not commit error materially prejudicial to the defendant when the court allowed the prosecutor to cross-examine a state's witness concerning an alleged confession implicating the defendant.

An examination of the record reveals that the state called as its witness, Harry Barber, who was duly sworn. In answer to questions, Barber stated his full name, street address, city in which he lived and age. When asked whether he was employed, he declined to answer 'on the grounds it may tend to incriminate me.' He then refused to answer questions concerning who else lived at the same address, whether he knew the defendant, whether the defendant was his uncle, what his first name was, whether he lived at the same residence with Amil Dinsio and whether he made a statement on or about May 24, 1962, at the sheriff's office in Mahoning County, Ohio, to an Ohio state highway patrolman, Sergeant William Cutting. Each time he answered, 'I decline to answer on the grounds it may tend to incriminate me.'

The prosecutor then showed the witness a paper writing and asked him whether it contained the name, 'Harry Barber.' Then the prosecutor asked him whether the name of Harry Barber appeared approximately one-quarter the way down the page, whether the name, Harry Barber, appeared at the bottom of the first page, whether the page contained the name of Harry Barber on the fourteenth line from the bottom, and whether it contained the name of Harry Barber on line seven from the bottom; and then the prosecutor asked him to look at the paper and state whether the writing of the name, Harry Barber, was the signature of the witness and asked him again whether the name, Harry Barber, at the bottom of the first page was his signature. To all these questions, the witness answered, 'I decline to answer on the grounds it may tend to incriminate me.'

Defendant's attorney finally objected to the question, 'Mr Barber, were you in Harrison County on the evening of May 22, 1962?,' to which the witness answered, 'I decline to answer on the grounds it may tend to incriminate me.'

The prosecutor then asserted that he would like to have the witness declared a hostile witness, with the right to cross-examine him.

The court inquired of the witness, '* * * by what authority do you claim such privilege?,' to which the witness replied, 'By my rights,' and later to a similar question, 'The Fifth Amendment.'

The court then stated:

'You are informed that the Ohio laws, as well as some other state laws have held that the Fifth Amendment to the Constitution of the United States dows [does] not control in the state of Ohio. Now Mr. Barber, you are entitled to the protection of all the laws there are in Ohio; but you are further informed that your view or your theory of the incriminating character of the question or answer you might be expected to give is not necessarily conclusive--that the answer must in itself be of such a nature that it would reasonably be inclined either to be a direct cause or raise a possibility of incrimination or would be a link or a portion in a series of such matters as might tend to incriminate you. Now the court has a right to determine on the basis of whether or not your viewpoint and your refusal to answer is upon a reasonable and logical inference that it would be an incriminating factor. Now what do you say to that?'

The witness replied, 'I don't know.'

The court then stated, 'You don't know whether it would be incriminating or not to answer with whom you live or where you reside?' The wittness replied, 'No.'

The court then inquired, 'Are you presently under any charge in this court?' The witness answered, 'Yes.'

The court then ruled: 'The court is inclined to think if that is the case, you are entitled to a broad interpretation of the privilege against self-incrimination.'

After another conference with counsel at the bench, the prosecutor proceeded to ask Barber whether he was in Harrison County on the evening of May 22 and the morning of May 23, 1962, whether he made a statement to the effect he had been in Harrison County, and whether he came here on the evening of May 22, 1962, at approximately 5:30 p. m., d. s. t., with Amil, James, William and Vincent Dinsio. To each question the witness answered, 'I decline to answer on the grounds it may tend to incriminate me.'

Defendant's attorney then objected, stating:

'We object to the prosecuting attorney reading the statement allegedly made by this witness and cross-examining this witness on this statement, and further object to any testimony--cross-examination or examination of this witness relative to the contents of any statement he may have made.' The court overruled the objection.

The prosecutor then asked Barber whether he came to Harrison County with the people named in the previous question, whether he came in a 1954 Cadillac driven by Harry Chamberlain, whether William Dinsio owned a 1954 Cadillac, whether he knew William Dinsio, whether he came to Harrison County in a 1954 Cadillac on the evening of May 22, 1962, in company with Amil, James, Vincent and William Dinsio, Charles Mulligan and Harry Chamberlain, whether there was a set of bolt cutters in the automobile, what color the bolt cutters were, what use he was going to make of the bolt cutters, whether Amil Dinsio was his uncle, whether he was employed by the Dinsio Mining Company, whether he made a statement to anybody on or subsequent to May 23 to the effect that they caught Amil and Chamberlain, whether he signed a written statement to that effect, whether he knew where the drive-in theater is on Route 250, whether he stopped at a Pure Oil station in Georgetown, Ohio, and got a drink of water on the morning of May 23, whether he was in Harrison County on the evening of May 22 and the morning of the 23rd, and whether Amil Dinsio was there. To each of these questions the witness replied, 'I decline to answer on the grounds it may tend to incriminate me.'

The prosecutor asserts in his brief for the state that prior to the trial the witness, Barber, a nephew of the defendant who lived in the same house with the defendant, freely talked to police officers concerning the activities of defendant on the evening of the crime and did, in fact, sign a written statement relating to these activities.

He asserts further that the state had every reason to believe, and did believe, that, if called, Barber would testify as to what he told police officers and what had been reduced to writing.

The position of the state is that, when the witness refused to answer questions on the ground of self-incrimination, the prosecution was taken by surprise because the witness had previously freely talked about these matters, and that the witness was declared a hostile witness, not because he asserted the privilege, but because the prosecutor was taken by surprise by his failure to testify about the matter concerning which he had previously freely talked.

The prosecution asserts that it does not contend that Barber was an accomplice of the defendant in the crime, that the paper writing was not read from or ever referred to as a confession or offered in evidence, nor was the jury in any way informed of the contents of the writing or what it purported to be, and that, inasmuch as the witness did not say anything but only asserted and was granted the privilege against self-incrimination, it makes no difference whether the questions were in the form of direct examination or cross-examination.

The prosecutor summed up the position for the state as follows:

(1) The witness was not required to state whether he had made a statement,

(2) there was no attempt to introduce any statement, or

(3) have anyone testify that any such statement had ever been made or relate the contents thereof.

The defendant asserts, as a third assignment of error, 'that the Court of Appeals erred in...