State v. Faulkner

• Decision Date: 18 October 1978
• Docket Number: No. 77-693,77-693
• Citation: 381 N.E.2d 934,56 Ohio St.2d 42
• Parties: , 10 O.O.3d 82 The STATE of Ohio, Appellee, v. FAULKNER, Appellant.
• Court: Ohio Supreme Court

Page 42

56 Ohio St.2d 42

381 N.E.2d 934, 10 O.O.3d 82

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

No. 77-693.

Supreme Court of Ohio.

Oct. 18, 1978.

At approximately 7:00 p. m., on December 10, 1975, a robbery occurred at the Freeway Sunoco Station in Kingsville Township, Ashtabula County, during which four men were shot. Donald Cosner, station employee, John Buchtinec, station owner, and George Andrus, a customer, survived their resultant wounds. However, John McQuiston, also a customer, died from a gunshot wound to the back of his head.

Appellant, Carl Faulkner, and two others, Willie Jones and Preston Fayne, Jr., were indicted on January 8, 1976, for one count of aggravated murder in violation of R.C. 2903.01, with specifications as to this count under both R.C. 2929.04(A)(5) and 2929.04(A)(7); three counts of attempted aggravated murder in violation of R.C. 2923.02; and one count of aggravated robbery in violation of R.C. 2911.01. Appellant entered a plea of not guilty to all charges and was separately tried before a jury.

Testimony at trial included that given by each of the surviving victims and Preston Fayne, Jr., who stated that appellant was present during the robbery in question and had participated in the crimes alleged. Appellant testified on his own behalf and admitted that he had gone with Jones and Fayne to the gas station and committed a robbery, but denied that he had any involvement with a murder or attempted murders. On May 5, 1976, the jury found appellant guilty as charged on all counts of the indictment. Subsequently, a psychiatric evaluation of appellant, performed by Dr. Henry J. Lantner, was submitted to the trial court.

A mitigation hearing was held on July 14, 1976, at which no testimony was elicited and no statement was made by appellant. Thereupon, appellant was sentenced to death by the trial court on the aggravated murder with specifications count, and to consecutive prison terms of 7 to 25 years on each of the remaining four counts.

On March 28, 1977, the Court of Appeals affirmed appellant's convictions and sentences.

This cause came before this court upon appeal as a matter of right.

Ronald W. Vettel, Pros. Atty., for appellee.

J. Tullis Rogers, State Public Defender, and Amy E. Poock, Asst. Public Defender, for appellant.

PER CURIAM.

I.

Appellant has presented five propositions of law. Appellant proposes first that it was prejudicial error for the trial court to deny defense counsel the opportunity to conduct a recross-examination of the state's witness, Donald Cosner, where the prosecution has inquired into new areas during redirect examination, and that this constitutes a denial of defendant's right to confront the witnesses against him as guaranteed by the Sixth Amendment to the United States Constitution and the provisions of Section 10, Article I of the Constitution of Ohio. ¹

During cross-examination, defense counsel made an extensive inquiry of Donald Cosner, the station attendant, as to the skin tone of the men involved in the robbery and the automobiles present at the gas station at the time of the robbery. ² During redirect examination, the prosecutor asked Cosner to compare the appellant's skin tone with one of the three men involved in the robbery, as follows:

"Q. Now you testified, Mr. Cosner, concerning complexions of various people. How does the complexion or skin tone of the defendant in this case, Carl Faulkner, compare to the skin tone of the taller man that you saw in the gas station on the night of December 10, 1975?

"A. Same skin tone.

"Q. Same skin tone?

"A. Yes sir."

The prosecution also questioned the witness as to the location of the automobiles in the vicinity of the Sunoco station. Afterwards, defense counsel requested the opportunity to conduct a recross-examination "(w)ith regard to the automobiles and the skin tone." However, the trial court denied this request on the ground that defense had already explored both subject matters upon cross-examination and did not need to recross-examine Cosner.

Although a defendant must have the opportunity to cross-examine all witnesses against him as a matter of right, Kent v. State (1884), 42 Ohio St. 426; Weaver v. State (1929), 120 Ohio St. 97, 165 N.E. 569, the opportunity to recross-examine a witness is within the discretion of the trial court. Liberty Mutual Ins. Co. v. Gould (1976), 266 S.C. 521, 224 S.E.2d 715; United States v. Morris (C.A.5, 1973), 485 F.2d 1385. Only where the prosecution inquires into new areas during redirect examination must the trial court allow defense the opportunity to recross-examine. See Alford v. United States (1931), 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624.

Upon a careful review of the record, we cannot find that the prosecution in the instant cause inquired into any new area, but rather inquired into the areas of skin tone and automobiles which were raised by defense counsel upon cross-examination. We hold that where, as in the cause Sub judice, no new matters are explored on redirect examination, it is not an abuse of discretion for the trial court to deny defense counsel's request to conduct a recross-examination. State v. Jones (1974), 110 Ariz. 546, 521 P.2d 978; State v. Miles (1976), 97 Idaho 396, 545 P.2d 484; State v. McSloy (1953), 127 Mont. 265, 261 P.2d 663; State v. Fernandez (1924), 157 La. 149, 102 So. 186.

II.

Appellant proposes that it was prejudicial error for the trial court to comment during the charge to the jury on certain judicial admissions made by appellant on the witness stand.

The relevant portions of the charge were as follows:

"From the witness stand the defendant Faulkner admits he was armed with a loaded .38 caliber revolver; admits his intention to commit robbery of someone with a combined effort of the other two defendants. In fact, defendant admits that while so armed he did in fact commit robbery at the gas station referred to in the indictment and on the date so charged."

Appellant did not object at trial to the charge given the jury by the trial court, as required by Crim.R. 30, which states in part:

"A party may not assign as error the giving or the failure to give any instructions unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury."

Failure to timely object, pursuant to Crim.R. 30, precludes appellant from assigning as error the trial court's charge to the jury in the instant cause, State v. Lane (1976), 49 Ohio St.2d 77, 358 N.E.2d 1081, and an appellant court need not review such alleged error, in the absence of plain error, under Crim.R. 52(B). State v. Lockett (1976), 49 Ohio St.2d 48, 358 N.E.2d 1062. Crim.R. 52(B) reads:

"Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."

Under the facts of this case, appellant cannot successfully complain of prejudicial error, let alone plain error, under Crim.R. 52(B), where the trial court makes an accurate and correct restatement of judicial admissions given by appellant within the charge to the jury.

This proposition of law is overruled. ³

III.

Appellant's third proposition of law contends that the trial court erroneously instructed the jury as to intoxication to the prejudice of appellant. The relevant portion of the charge was as follows:

"Now some testimony was given by the defendant concerning his drinking of alcoholic beverages or beverage, the smoking of marijuana, and the taking of some kind of pills, however, the amount not specified.

"The Court says to you all this evidence constitutes no defense whatsoever, no excuse whatever for whatever you may find this defendant did."

The only evidence concerning intoxication was offered by appellant when he testified that "we got some pills, some more wine, and Willie (Jones) got some reefers" and "while we were riding on the Freeway we were smoking reefers. We were drinking wine." There was no testimony as to the amount of wine or marijuana or the number or kind of pills consumed by appellant prior to the commission of the crime. The only evidence concerning the effect these substances had on appellant was the following testimony:

"Q. So, if you drank some wine or smoked some reefer, you didn't do too much that you can't remember these things?

"A. I didn't."

This court has found in situations where the evidence shows that the defendant was " 'unable to walk without staggering, and that he was in an incoherent and nearly insensible condition of mind,' " Lytle v. State (1877), 31 Ohio St. 196, 197, or where the evidence indicates that the defendant was "staggering, talking to himself, shaking his head, reeling, (and) looking wild," Rucker v. State (1928), 119 Ohio St. 189, 192, 162 N.E. 802, that evidence is sufficient to raise the issue of defendant's intoxication at the time of the offense.

The evidence presented in the instant cause is clearly insufficient to raise the issue of intoxication. Therefore, it was not improper for the trial court to charge the jury in the manner in which it was done.

IV.

Appellant's fourth proposition alleges that the imposition of the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution.

The United States Supreme Court has held that capital punishment is not unconstitutional Per se. Proffitt v. Florida (1976), 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913. Appellant's fourth proposition of law is overruled.

V.

Appellant's fifth proposition raises four further constitutional attacks upon Ohio's death penalty statutes.

Appellant's first constitutional attack is that the Ohio scheme denies the capitally accused the right to judgment by his peers on the issue of mitigation. That argument has been rejected...