State v. Ferguson
| Citation | 411 N.E.2d 831,64 Ohio App.2d 165 |
| Parties | , 18 O.O.3d 121 The STATE of Ohio, Appellant, v. FERGUSON, Appellee. |
| Decision Date | 28 March 1979 |
| Court | United States Court of Appeals (Ohio) |
Syllabus by the Court
It is error to dismiss the charges against a defendant with prejudice when a transcript of the preliminary hearing cannot be made because the recording thereof was "not available" through no fault of the prosecution, without any significant opportunity for the prosecution to be heard and without an exploration of alternative means of correcting the omission or otherwise reducing its harmful effects.
Ronald C. Carey, Wilmington, Pros. Atty., for appellant.
Mary H. McElwee, Cincinnati, for appellee.
The issue raised under the state's single assignment of error is whether the trial court erred in dismissing the indictment (robbery and burglary) by reason of the inability of the official court reporter of the Court of Common Pleas to furnish a transcript of the preliminary hearing. Her inability arose from the fact that the tape recording device in the Wilmingon Municipal Court malfunctioned or was inadvertently misused, and the recording of the preliminary hearing was "not available."
The record discloses that a preliminary hearing was held after the appointment of Ferguson's counsel, that the prosecuting witness testified thereat, that the defendant was bound over to the grand jury, and that an indictment was duly issued. The trial court found Ferguson to be indigent and ordered that a transcript of the preliminary hearing be furnished to him without charge. The official court reporter filed an affidavit stating that she had been advised "there is no tape recording available of the preliminary hearing in this matter" and that she could not prepare a transcript. Ferguson moved for a dismissal. Without a hearing, the court dismissed the charges against him "with prejudice."
A transcript of a preliminary hearing is presumed to be valuable to the defendant. Paragraph 4 of the syllabus of State v. Arrington (1975), 42 Ohio St.2d 114, 336 N.E.2d 667. It would be particularly valuable for impeachment purposes when the prosecuting witness testified, as happened in the instant case.
When the transcript is available but the trial court refuses to furnish the defendant with a copy, prejudicial error has been committed. State v. Arrington, supra. A similar error is made when, in preparation for a second trial the trial court denies the defendant's request for a transcript of the testimony at the first trial. State v. Thacker (1978), 54 Ohio St.2d 43, 1 374 N.E.2d 642.
We detect several distinguishing features between those two cases and the instant case. Therein, the transcripts of the prior proceedings were available and while denied to the defendants, were in the prosecution's hands. Also, the court could determine whether the transcripts were of value to defendant's defense by reading them. In contrast, in the instant case, the transcript was not available, not through the fault of the prosecuting attorney nor by reason of any court ruling. Also, while the Supreme Court reversed and remanded the cases in Arrington and Thacker for further proceedings, the trial court herein terminated the case "with prejudice." 2
Our conclusion is that the dismissal was premature. It was ordered without a hearing, without any significant opportunity of the prosecution to be heard, and without exploration of alternative means of correcting the mistake of the Wilmington Municipal Court or otherwise reducing the harmful effects of the mistake. 3 We...
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State v. Mosti, 2004 Ohio 109 (Ohio App. 1/7/2004)
...short of dismissal that could have corrected or reduced the harmful effects of the county court's error, citing State v. Ferguson (1979), 64 Ohio App.2d 165, 166, 411 N.E.2d 831, in {¶12} Appellant also argues that the charges should not have been dismissed because Appellee was not prejudic......
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State v. Gedeon
...a record of the preliminary hearing, id., and "[c]ounsel are obligated to assist as officers of the court * * *." State v. Ferguson, 64 Ohio App.2d 165, 166 (1st Dist.1979), fn. 3. {¶24} Upon review, we reject Mr. Gedeon's argument that the State failed to satisfy its burden under the two-p......
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State v. Smith, No. 28635 (Haw. App. 7/11/2008), 28635
...hearing or secured an "agreed statement" of the recollection of those at the preliminary hearing. State v. Ferguson, 64 Ohio App. 2d 165, 166 n.3, 411 N.E.2d 831, 832 n.3 (Ohio App. 1979). Appellant could also have called his former attorney, Mr. Arthur Indiola, who was discharged specifica......
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State v. George Robinson
...when the unavailability of such a transcript is through no fault of prosecution, there is no violation of due process. State v. Ferguson (1979), 64 Ohio App.2d 165, that: "It is error to dismiss the charges against a defendant with prejudice when a transcript of the preliminary hearing cann......