State v. Donald E. Golden and Matthew B. Smith, 86-LW-0132

• Decision Date: 27 January 1986
• Docket Number: 86-LW-0132,CA-6727
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Donald E. GOLDEN and Matthew B. Smith, Defendants-Appellants,
• Court: Ohio Court of Appeals

STATE of Ohio, Plaintiff-Appellee, v. Donald E. GOLDEN and Matthew B. Smith Defendants-Appellants,

No. CA-6727.

86-LW-0132 (5th)

Court of Appeals of Ohio, Fifth District Stark.

January 27, 1986

Criminal Appeal from the Court of Common Pleas

No 85-5205

Robert D. Horowitz, Prosecuting Attorney, John G. Haas, Chief Counsel, Canton, Ohio, for plaintiff-appellee.

Richard R. Kuhn, Canton, Ohio, for defendants-appellants.

OPINION

MILLIGAN Judge.

SEVERANCE OF TRIAL^PEREMPTORY CHALLENGES^EXCLUSION OF MINORITIES FROM JURY^MANIFEST WEIGHT OF EVIDENCE^SENTENCING^DUE PROCESS

Appellants, Donald E. Golden and Matthew B. Smith were tried and convicted by a jury on three counts of aggravated robbery (R.C. 2911.01). They were sentenced to three consecutive terms of ten to twenty-five years incarceration. Appellants timely appeal their conviction, assigning as error:

ASSIGNMENT OF ERROR NO. I

THE FAILURE OF THE COURT TO SEVERE (SIC) THE CO-DEFENDANTS['] TRIAL INTO TWO SEPARATE TRIALS VIOLATED OHIO REVISED CODE 2945.13, OHIO RULES OF CRIMINAL PROCEDURE RULE 14, AND DUE PROCESS FOUND IN THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

ASSIGNMENT OF ERROR NO. II

THE DISMISSAL BY THE STATE OF THE ONLY BLACK MEMBER OF THE APPELLANTS['] JURY DEPRIVED THE APPELLANTS OF THEIR RIGHT TO AN IMPARTIAL JURY OF THEIR PEERS AND EQUAL PROTECTION AND DUE PROCESS[ ] PROVIDED BY THE SIXTH AND FOURTEENTH AMENDMENT[S] OF THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE OHIO STATE CONSTITUTION.

ASSIGNMENT OF ERROR NO. III

THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IN VIOLATION OF [THE] DUE PROCESS CLAUSE PROVIDED THROUGH THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

ASSIGNMENT OF ERROR NO. IV

DEFECTS WITHIN THE TRIAL COURT RECORD DENY THE DEFENDANTS' [SIC] DUE PROCESS OF LAW AS FOUND IN THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

ASSIGNMENT OF ERROR NO. V

THE TRIAL COURT ERRED IN THE CONVICTING AND SENTENCING OF EACH DEFENDANT ON ALL THREE CHARGES AS ALL WERE SIMILAR CRIMES WITH THE SAME ANIMUS AND THEY SHOULD HAVE BEEN MERGED INTO ONE CONVICTION AND ONE SENTENCE PURSUANT TO OHIO REVISED CODE 2941.25 AND THE DUE PROCESS [RIGHT] AS OFFERED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

We accordingly address each assignment of error.

I

Appellants' first assignment of error claims that they were denied due process of law because their trials were not severed.

Two defendants may be jointly indicted and tried for a criminal offense. Crim.R. 8 & 14. However:

If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, informations or complaints, the court shall order an election or a separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires

Crim.R. 14

The movant has the burden of showing prejudice. State v. Torres (1981), 66 Ohio St.2d 340, 343, 421 N.E.2d 1288; State v. Roberts (1980), 62 Ohio St.2d 170, 175, 405 N.E.2d 247. The appellant claiming error must demonstrate that the trial court abused its discretion in refusing to allow separate trials. State v. Cartellone (1981), 3 Ohio App.3d 145, 151, 444 N.E.2d 68; see also Opper v. United States (1954), 348 U.S. 84, 95. "Absent some abuse of discretion, to be demonstrated by a clear showing of prejudice and the consequent denial of a fair trial, the determination is not subject to reversal." State v. Perod (1968), 15 Ohio App.2d 115, 120.

Appellants fail to demonstrate prejudice sufficient to justify severance. (T. 2-4). Neither defendant made a confession and neither took the witness stand. Appellants essentially argue that information against one defendant may have "spilled over" against the other defendant. Such a danger is present in every trial, however, where defendants are jointly tried. See United States v. Lotsch (2d Cir.), 102 F.2d 35, 36, cert. denied, 307 U.S. 622 (1939) (L. Hand, J.). However, no prejudicial effect results from joinder when the evidence of each crime per each defendant is simple and distinct. The jury is capable in that case of segregating the proof on each charge and on each defendant. Roberts, supra, at 175; Torres, supra, at 343-44. See also, Drew v. United States (D.C.Cir.1964), 331 F.2d 85, 91.

We overrule the first assignment of error.

II

Appellants next argue that they were denied due process and equal protection under the federal and state constitutions because the state excluded, by peremptory challenges, blacks from the jury. Appellants' claim fails for three reasons.

First, "an appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court." State v. Williams (1977), 51 Ohio St.2d 112, 117, 364 N.E.2d 1364. Appellants failed to object to the State's use of its peremptory challenges to remove blacks from the jury.

Second, appellants failed to make an adequate record demonstrating the race of each defendant, the jury members, and those persons excused from the jury via the State's use of its peremptory challenges. A ruling on the merits of this assignment of error is impossible with such a defective record.

Finally, the United States Supreme Court has held that the exclusion of minorities from juries through the use of peremptory challenges is not unconstitutional. Swain v. Alabama (1965), 380 U.S. 202.®1¯ The court concluded:

In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore is subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.

Swain v. Alabama (1965), 380 U.S. 202, 222

Thus, the State's action in the instant case is compatible with the Swain rule.

For the reasons stated above, we overrule the second assignment of error.

III

We find, in the case sub judice, that there is substantial, credible evidence which support the jury's verdict. Evidence touching upon every element of the crime of aggravated robbery, R.C. 2911.01, was introduced at trial. In addition, the identification evidence was substantial (T. 228, 29, 233-34, 237, 255, 261, 279, 283, 299, 303, 307, 319-20, 401-13, 411-12). State v. Eley (1978), 56 Ohio St.2d 169, 383 N.E.2d 132; State v. Martin (1983), 20 Ohio App.3d 172, 485 N.E.2d 717.

We accordingly overrule the assignment of error.

IV

Appellants contend by the fourth assignment of error that they were denied due process of law because of defects in their trial. They point out two alleged defects: (1) the trial court's failure to rule on a motion to sever, and (2) the filing of the verdict form two days prior to the date it was signed by the judge.

Although the court's ruling on the motion to sever does not appear in the trial court record or official court reports, the court's refusal to sever the trial, hence trying both defendants together, amounted to the court overruling, sub silentio, the motion to sever. Appellants' counsel recognized as much:

On behalf of Mr. Golden, I would make the following motions, I would move I believe under State v. Own, 51 Ohio App. 2132 [State v. Owens (1975), 51 Ohio App.2d 132, 366 N.E.2d 1367], I am required to renew my motion to sever that I made prior to trial which was overruled. I renew my motion to sever. (Emphasis added)

T. 424

Furthermore, if ruling, sub silentio, on the motion to sever is error, it is harmless error. See State v. Carter (1970), 21 Ohio St.2d 212, 256 N.E.2d 714. Appellants are unable to demonstrate any prejudice as a result of this "defect."

The second claim of defect is that the jury form reveals a file-date stamp of July 24, 1985, two days before the form was signed. This file-date stamp, however, was crossed out and a second one appears bearing the date July 29, 1985. The first file-date stamp is unofficial, while the second, later one, is the official stamp (placed on all original copies filed with the court). Furthermore, the earlier stamp only reveals the laudable practice of filing all papers to be submitted before the trial judge, thereby preserving the record for appeal. Appellants once again fail to show any prejudice as a result of this practice. Thus, the "defect," if error, was harmless error.

We therefore overrule the fourth assignment of error.

V

Appellants argue that the State must prove a separate animus for each offense of the same kind, committed at the same time. State v. Buck (1982), 3 Ohio App.3d 349, 455 N.E.2d 720. The State, however, met this burden.

A defendant may not be convicted of two or more crimes

where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each

R.C. 2941.25(B)

Claims under R.C. 2945.21(B) require the following analysis:

(1) to determine whether the offenses are the same type of offenses, possibly even allied offenses; and

(2) to determine whether

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