State v. Hector

• Citation: 48 O.O.2d 199,249 N.E.2d 912,19 Ohio St.2d 167
• Decision Date: 30 July 1969
• Docket Number: No. 68-689,68-689
• Parties: , 48 O.O.2d 199 The STATE of Ohio, Appellee, v. HECTOR, Appellant.
• Court: Ohio Supreme Court

Page 167

19 Ohio St.2d 167

249 N.E.2d 912, 48 O.O.2d 199

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

No. 68-689.

Supreme Court of Ohio.

July 30, 1969.

Syllabus by the Court

1. As a general rule, the introduction of evidence tending to show that a defendant has committed another crime wholly independent of the offense for which he is on trial is prohibited.

2. Exceptions to such rule are made where the prior offense is part of a common plan or scheme or where it tends to prove motive, intent, knowledge or identity, not because the prior acts prove that defendant is crime prone, but in spite of such fact, on the theory that the circumstances involved in the prior offense or offenses comprise substantial probative evidence of guilt of the particular offense in question.

3. To make such evidence relevant to the issue of identity, the evidence must indicate that essentially the same plan, system or method has been followed.

4. The legal determination, by comparison of the plan, system or method employed in a prior crime with the plan, system or method employed in the crime in question, of whether the former is relevant to the issue of identity of the perpetrator of the latter, must be made without consideration of the fact that eye witnesses have identified the same person as the perpetrator of both crimes.

5. While ordinarily the credibility of a witness may be attacked by proof of conviction of crime but not by proof of indictment, this rule is subject to the exception that a witness in a criminal case may be asked if he is under indictment for a crime if such fact would reasonably tend to show that his testimony might be influenced by interest, bias, or a motive to testify falsely.

Defendant was indicted on December 20, 1967, for first degree murder, the indictment charging that on November 10, 1967, while perpetrating a robbery, he did unlawfully, purposely and intentionally kill Walter (later changed by amendment to true name, Walton) P. Garrett.

A jury found defendant guilty as charged and did not recommend mercy, and on May 17, 1968, defendant was sentenced to death. The judgment of conviction was affirmed by the Court of Appeals on November 13, 1968. The cause is now before this court upon appeal as a matter of right in a case in which the death penalty has been affirmed. Section 2(B)(2)(a) (ii), Article IV, Ohio Constitution.

Further facts relevant to the determination of this appeal are discussed in the opinion.

Melvin G. Rueger, Pros. Atty., Calvin Prem and Carl Vollman, Cincinnati, for appellee.

Harvey B. Woods and Vernon R. Brose, Cincinnati, for appellant.

LEACH, Judge.

Among the many assignments of error advanced herein are the claims that the trial court erred:

(1) In admitting into evidence over objection the testimony of (a) a taxicab drive describing an armed robbery in which he was the victim which occurred on the streets of Cincinnati at about 2:55 a. m. on November 4, 1967, and identifying defendant as the robber, (b) witnesses describing an armed robbery of a grocery store in Cincinnati and the shooting of the proprietor which occurred between 6:30 [249 N.E.2d 914] and 7:00 p. m. on November 4, 1967, and identifying defendant as being the gunman, and (c) another taxicab driver describing an armed robbery occurring on the streets of Cincinnati at approximately 9:30 p. m. on November 7, 1967, and identifying defendant as being the robber.

(2) In refusing to permit defense counsel to cross-examine a witness for the prosecution as to whether, at the time of his testimony, he was under indictment charging three armed robberies and shooting to kill, including an indictment for the November 4, 1967, grocery store holdup (as to which witnesses had identified defendant as the perpetrator).

We conclude that the trial court did err to the prejudice of the defendant in these respects and, thus, that the judgment of conviction must be reversed and a new trial ordered.

In order to place the problem relative to such errors in proper focus, we will first make abbreviated reference to the basic facts in evidence at the trial.

There was no dispute as to the fact that in the early hours of daylight on November 10, 1967, and during the course of a robbery at the office of the Fifth Street Cab Company in Cincinnati, one Walton P. Garrett was shot and killed. The exact time of the killing was estimated by witnesses to be at approximately 6:55 a. m. During the course of the robbery one Grover Lawrence was shot, but not killed.

The major question at trial was one of the identity of the killer. Defendant was arrested on November 26, 1967. Trial was had, beginning on April 29, 1968, and was concluded on May 9, 1968.

At the time Garrett was shot, Stanley Blackwell, the cab company owner, Tommy Green, the night dispatcher, Grover Lawrence, a driver who had already been shot, Harry Thomas, another driver, and Deloris George, the day dispatcher, were present. At the Trial, defendant was identified by Blackwell, by Green and by Thomas as being the killer. No inquiry was made of Miss George as to the question of identification. Lawrence's testimony was to the effect that defendant 'could have been him, for all I know'; and that he 'didn't pay much attention to the man because I was shot too quick'; that 'he ain't the man'; and that 'I don't think he is the man.' Blackwell, Green and Thomas had previously identified defendant after viewing him in a lineup at the police station following his arrest on November 26, 1967. (Defendant had specifically consented to participate in the lineup, and no claim is made that any of his constitutional rights were violated thereby.)

Defendant claimed that at the time of the killing he was at the home of his girl friend, Yvonne Powell. Testimony to this effect was given by the defendant, and by the mother and young sister of the girl friend. It also was given (by deposition, the witness being unable to attend the trial) by the girl friend, but she admitted that she had made prior statements to the police and to the grand jury to the effect that defendant had told her he had killed a man at the cab company. However, she denied that the prior statements were true, and asserted that they were only given after the police had told her the defendant had confessed.

The only eye witnesses who attempted to describe the gun used in the killing were Green, who described it as looking like a .38, a 'big stub nose gun,' and Thomas, who described it as 'a .32 or .38 * * * I didn't know what make it was.' No gun was ever found.

One Curtis Binion testified that he had been with defendant the night before, and until between 3:30 and 4:40 a. m. on November 10, 1967, at which time he had dropped defendant off at an 'after hours place'; that defendant later came to Binion's home, located near the cab company, between 7:00 and 7:30 a. m. asking Binion to drive defendant to Yvonne Powell's home; that Binion drove defendant to Yvonne's home and later returned and picked up defendant there at about 8:15 to 8:30 a. m.; that at that time, on the way downtown, defendant pulled a bag from under the seat of Binion's car, told Binion that he had 'took off' (robbed) a place the night before, and told Binion to get rid of the articles. Included in the bag, according to Binion, was a .22 caliber pistol, which, Binion testified, had been borrowed by defendant from one Frankie Nowell.

The testimony of Binion was that he later threw the bag and its contents into the Ohio River from a railroad bridge.

Frankie Nowell testified that he owned a .22 caliber revolver with a 'real long barrel,' that 'looks like a .38,' and that he loaned the gun to defendant and never got it back.

While the coroner's pathologist testified that three projectiles were recovered from the body of Garrett (he was shot four times), there was no testimony as to their size or caliber.

Over objection by the defense, the court permitted prosecution testimony by Herbert Moore, a cab driver, that in the early hours of November 4, 1967, he picked up a fare and drove him to Jay Street; and that when they arrived there, at about 2:55 a. m. the fare 'come out with a pistol' and took from him approximately $70. Moore did not describe the pistol. In court, he pointed out defendant as the man who held him up, and stated that he had not seen him sence the time of the holdup until he saw him in court, but that he had previously identified a picture of defendant out of a group of six or seven pictures brought to him by detectives.

Over objection by the defense, testimony was permitted by Lester Meyer and Betty Jo Moses concerning an armed robbery of a grocery store located on Woodburn Avenue, in which Meyer had been shot. This occurrence took place on November 4, 1967, between 6:30 and 7:00 p. m. Meyer testified that the gunman came into his store, picked up two cans of beer, came back to the counter, mumbled something, then pulled a gun and said he would kill Meyer, at which time he fired a shot, which 'glanced me up at the head'; that Meyer reached for the gun and was shot through the wrist; and that Meyer then started to the back of the store at which time he was shot through the back. In court, Meyer pointed to defendant as his assailant, and testified that he had seen and identified the defendant at a lineup at the police station on November 27, 1967. No description of the gun was given and no evidence was presented attempting to prove any similarity between any projectiles which might have been removed from the body of Meyer and the three projectiles taken from the body of Garrett.

Betty Jo Moses, a 14-year-old girl testified over objection that she had seen the 'man seated at the counsel table here' (the defendant) at the grocery store the evening of November 4, 1967; that she saw him come in and go to the beer case and get some beer; that she then left the store and heard three shots; and that the man then ran out...