State v. Elwood H. Jones
| Decision Date | 26 December 1984 |
| Docket Number | 84-LW-3087,TRIAL NO. B-831596,C-830840 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. ELWOOD H. JONES, JR., Defendant-Appellant. APPEAL |
| Court | Ohio Court of Appeals |
Court of Common Pleas.
Messrs Arthur M. Ney, Jr. and Christian J. Schaefer, 420 Hamilton County Courthouse, Court and Main Streets, Cincinnati, Ohio 45202, for Plaintiff-Appellee.
Mr Richard L. Bell, 602 Main Street, Suite 410, Cincinnati, Ohio 45202, for Defendant-Appellant.
DECISION.
This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Court of Common Pleas of Hamilton County, Ohio, the transcript of the proceedings, the assignments of error, the briefs and oral argument of counsel. The appellant, pro se, also filed a brief in which he assigned two additional errors to those assigned by his counsel.
On April 13, 1983, the residence of Mr. and Mrs. Thomas Phelps in the City of Cincinnati was burglarized while they were at work. Two television receivers and a stereo component were taken. Neighbors observed the property being removed and notified the police. The defendant, Elwood H. Jones, Jr., was arrested in the driveway of his nearby home within a very few minutes. He was standing by his automobile and the stolen property was found in the trunk of the automobile. A two count indictment was thereafter returned charging Jones with aggravated burglary in violation of R.C. 2911.11 in count one, and a charge of receiving stolen property in violation of R.C. 2913.51 with the allegation of two previous theft offenses in count two.
The matter was called for a jury trial with the defendant acting as his own attorney. The proceedings resulted in a mistrial when the defendant became ill in the presence of the jury. The matter was again called for trial at a later date with the defendant again representing himself although the trial court did appoint a member of the bar as legal advisor to the defendant, to sit at counsel table and be available to assist the defendant if he should feel the need to consult with the attorney. The jury returned a verdict of guilty on each count of the indictment and the defendant was thereafter sentenced to be confined in the penitentiary for seven to twenty-five years on count one and, on count two, for two to five years. The sentences were ordered to be served concurrently.
We will consider first the three assignments of error as contained in the brief filed by counsel for appellant and then the two additional assignments as advanced by the appellant, pro se.
The first assignment is that the trial court erred in refusing to declare a mistrial based on juror misconduct and three issues are presented for review thereunder. The issues are raised by (1) the nondisclosure in voir dire examination that one of the prospective panel was married to a volunteer policeman, (2) one of the jurors speaking with a prosecution witness, and (3) one of the jurors seeing defendant brought to the courtroom in handcuffs. We find this assignment of error to be without merit.
The prospective jurors had been asked to complete a written questionnaire to facilitate the voir dire examination. Among the questions was one apparently inquiring as to any relationship between the prospective juror and any law enforcement personnel. The questionnaire form is not included in the record transmitted to this court. In the voir dire examination by the trial jurist, no question was addressed to the prospective jurors concerning their relationship with law enforcement personnel. The prosecuting attorney asked generally if any of the prospective jurors had had an unpleasant experience involving police officers which would in any way influence the decision in the case about to be tried. Individually, and apparently based upon answers in the absent written questionnaire, he pursued the matter of a relationship with police officers or prosecutors with two of the prospective jurors. Both of those jurors were ultimately excused from serving as a result of the appellant exercising two of his peremptory challenges. The appellant, in his voir dire examination, posed the following question to the panel, as a group:
"First, I'd like to ask have any members of your family works (sic ) for the law enforcement agency?"
T.p 50. In response to his question, one of the prospective jurors, whom he ultimately peremptorily challenged, indicated an affirmative answer but the appellant did not attempt to challenge her for cause.
When the trial was resumed the next morning after the testimony of one witness had been given on the preceding day, the prosecuting attorney, in the absence of the jury, stated that one of the jurors told him that she had forgotten during the voir dire examination to disclose that her husband volunteers his services to the Indian Hill Rangers, a local police department. Her explanation was that the questionnaire framed the question as a matter of employment and that she did not include volunteer service in that term. It should also be noted that appellant asked his question, quoted above, so as to determine if any family member "works" for "the law enforcement agency." Upon examination by the trial court the juror indicated that her ability to sit as a fair and impartial juror would not be compromised by her husband's volunteer activities. The prosecuting attorney and the appellant, each, declined the opportunity afforded by the trial judge to examine the juror in greater detail. The juror gave a reasonable explanation of the oversight; there is nothing in the record which suggests that the oversight was, in actuality, an indication of bad faith. We do not ascribe prejudicial error to the foregoing circumstance even though the appellant had one peremptory challenge left which he contends he would have exercised to excuse the juror in question had he known the fact of her husband's volunteer service to the police agency.
The appellant cites as the second instance of juror misconduct the introduction of one of the jurors, by her husband, to a co-worker of his who also happened to be a witness for the state. The conversation was immediately interrupted and terminated by the court bailiff who reminded both the juror and the witness that they were to have no contact with each other. The incident occurred after the court concluded the proceedings on the first day of trial. Again, before the trial was resumed on the second day, the court examined the juror and ascertained that the incident would have no bearing upon her consideration of the case. The prosecuting attorney declined to further question the juror. The appellant elicited that the juror did not then remember the name of the person to whom she had been introduced, that the juror had never seen her before, and that she did not know the other person was a witness. State v. Wilson (1st Dist. 1978), 57 Ohio App. 2d 11, 384 N.E.2d 1300. We find no prejudicial error or juror misconduct in this occurrence.
Finally, the appellant asserts that one of the jurors saw him in handcuffs as he was being brought to the courtroom and that the court should have declared a mistrial for that reason. This incident occurred after the noon recess on the second trial day. Again the court questioned the juror identified by the appellant as the juror who saw him. The juror in response to the questions by the trial judge indicated that she had observed the defendant, that there was nothing unusual about him, and that there was nothing about the circumstance which would impair her ability to be a fair and impartial juror. Neither the prosecuting attorney nor the appellant wanted to inquire further. In addition, out of the presence of all the jurors, the bailiff stated that on the day before as he was assuring the absence of any of the jurors preparatory to returning the appellant to the jail, the appellant said that it did not matter if the jurors saw him in handcuffs and that they knew he was upstairs (in jail) anyway. See State v. Wilson, supra. We find no error in any of the three foregoing instances which would compel the declaration of a mistrial. The first assignment of error is overruled.
The overruling of appellant's two motions to suppress is the subject of his second assignment of error. The appellant filed the first motion to suppress based on the grounds that the evidence sought to be suppressed had been illegally obtained. The motion was heard on June 8, 1983 which was the original date set for the trial. The appellant requested a continuance of the motion because the state had not furnished him with the requested bill of particulars and discovery. The trial judge confirmed that those requests would be answered and asked what information he was seeking which would be material in determining the propriety of suppressing the evidence in recognition of his constitutional rights. The appellant was unable to specify any such information; resultantly, the request for a continuance was denied. We do not find any abuse of the discretion which is vested in the trial judge arising from his refusal to grant a continuance of the hearing of the motion. See State v. Unger (1981), 67 Ohio St. 2d 65, 423 N.E.2d 1078.
After the evidentiary hearing on the motion to suppress, the appellant again requested a continuance. This time, the request was founded upon the appellant's failure properly to request subpoenas for witnesses to appear for the suppression hearing. The appellant was adamant in his refusal to accept assigned counsel and insisted on representing himself. Admittedly, he has the right to do so but in so doing he must abide by the same rules of conduct and procedure as would be applicable to a member of the...
To continue reading
Request your trial