State v. Henry James May
| Decision Date | 18 June 1981 |
| Docket Number | 43286,81-LW-3523 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Henry James MAY, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Appeal from Common Pleas Court, No. CR-59210.
John T Corrigan (Jack Hudson), for plaintiff-appellee.
Daniel P. McDonnell, John V. Donnelly, for defendant-appellant.
JOURNAL ENTRY AND OPINION
Defendant-appellant, Henry James May, was indicted on October 7, 1980, under R.C. ] 2903.02 for the murder of one Ernest Caldwell on September 5, 1980. Defendant pleaded not guilty and was tried before a jury, who found him guilty as charged. He was sentenced to a term of fifteen years to life on December 2, 1980, and from that judgment takes this appeal.
According to the evidence, the victim Ernest Caldwell was found lying on the treelawn at 8017 Cedar Avenue in Cleveland shot to death with multiple gunshot wounds. A friend of the victim, Charles Maul, testified that he and Mr. Caldwell were together on the night of September 5, 1980, first at Maul's home, then at Caldwell's, and that they drove up to 8019 Cedar Avenue in Caldwell's car about 11:30 p.m. to attend a "card party." (Tr. 32-33). Maul testified that he went inside the house where the party was in progress when he heard two shots and his friend Caldwell calling his (Maul's) nickname "Butch." Maul ran outside, heard another shot, and found his friend lying on the treelawn. He observed a black male running down the street, wearing black pants, a rust cap and a print black and rust shirt. He also observed a 1969 or 1970 Oldsmobile or Cadillac speed away from the scene (Tr. 37-38).
The state's principal witness was Juanita McClain, a 13 year-old girl who lives across the street from the house in front of which the fatal shooting occurred. She testified that on the night in question she was sitting on the banister of the upstairs porch of her girlfriend's home, next door to where she (Juanita) lives, from which she observed the entire incident as follows: A man wearing black pants and a "Hawaiian-type shirt" (Tr. 50) was hiding behind a brick wall. Another man came from "Shack's house" [8017 Cedar, the house in front of which the victim was found], and a quarrel ensued. The two men started punching each other. The man in the Hawaiian-type shirt pulled a gun and shot the other man twice. The other man begged, "Please don't shoot me no more" (Tr. 52) but the gunman, who had his victim by the hair, shot him two more times. The gunman then removed his own shirt, wrapped the gun in it, put it down his pants and ran off toward Lawson's parking lot, leaving his victim where he had fallen. The gunman ran directly under the porch where Juanita was sitting (Tr. 55). Her girlfriend's grandmother called the police when informed about what had happened. Juanita did not know the gunman, but the police took down her description. About a month later, a detective came out to her school to show her seven photos. Out of these, Juanita immediately selected the defendant's as the same man she had observed shooting Caldwell that night. At trial, she testified that she was "certain" (Tr. 60) that the defendant was the gunman. She also testified that after the shooting, she saw another man "come down from 83rd way and look at [the victim]." (Tr. 71).
Police testified that they had a description of the car driven by the suspect from witnesses in the neighborhood as a Cadillac or Oldsmobile (Tr. 97) and that it was "smashed in the front end" and had been parked beside Lawson's (Tr. 78). Det. Taliaferro testified that the photo array out of which Juanita selected defendant's photo was compiled following "an anonymous phone call" linking "Skinny" with the murder. A check of police files for persons with that nickname turned up two conduct of a fair trial. Pointer v. Texas (1965), 380 U.S. 400, Douglas v. Alabama (1965), 380 U.S. 415. The right to cross-examine these witnesses is central to this right of confrontation, Davis v. Alaska (1974), 415 U.S. 308, and cannot be abrogated or denied by the legislature or the courts. When hearsay testimony accusing a defendant is improperly admitted into evidence, it may follow that there has been a violation of the Confrontation Clause. An example of such a Sixth Amendment violation is found in State v. Perryman (1976), 49 Ohio St.2d 14, where a police detective was permitted to testify to a conversation in which another police officer informed the defendant that his accomplices "had identified him as the triggerman" (thereby creating a double hearsay problem).®1¯
A different problem is presented when the testimony in question, as in the instant case, is not hearsay per se in that it is offered not to prove the truth of the extra-judicial statement connecting "Skinny" with the crime but for some other purpose^here, to explain police procedure leading up to the selection of photos to show the eyewitness. In Stewart v. ?? (1976), 528 F.2d 79, a Sixth Circuit case relied on by appellant, the federal court held that the application of an exception to the hearsay rule was no justification for introducing testimony about anonymous phone calls received by police implicating the defendant or, in other words, that a finding of hearsay is not always a prerequisite to a finding that the Confrontation Clause has been violated. That same conclusion is reached by the Second Circuit in United States v. Oates (1977), 560 F.2d 45:
there can no longer be any doubt that, despite the fact that an extra-judicial statement may satisfy the requirements of a recognized exception to the hearsay rule, the introduction of such a statement may in certain circumstances be barred because that introduction, if accomplished, would violate the defendant's right to confrontation. United States v. Puco, [476 F.2d 1099 (2d Cir.1973) ]. (at 81).
On the other hand, admitting testimony by police about anonymous phone calls related to a crime under investigation will not automatically result in a violation of the Confrontation Clause. In State v. Thomas (1980), 61 Ohio St.2d 223, the Supreme Court in discussing the admissibility of an officer's testimony as to phone calls he intercepted at a gambling place held:
Defendants argue further that the admission in evidence of the statements of anonymous telephone callers, made to agent Sonney during the execution of the search warrant, violated their right of confrontation and cross-examination under the Sixth Amendment. This contention is without merit. (at 231).
In the instant case, the testimony to which appellant objects is taken from the direct examination of the detective regarding to the police investigation into the Caldwell murder of September 5, 1980, which begins as follows:
Q. did anything else unusual happen in the course of your investigation?
A.Unusual, yes, sir. On September 12 I got an anonymous phone contact in connection with this crime with the nickname "Skinny".
MR. McDONNELL: Objection, Your Honor.
THE COURT: Sustained. (Tr. 97-98)
The remainder of the detective's testimony describes the police procedure used to follow through on this tip, which resulted in the assembly of an array of photos for viewing by Juanita McClain. Thus, the judge sustained defense counsel's objection to the only portion of the detective's testimony which could in any sense be considered accusatory. That the phone call had little effect was conceded by defense counsel when he pointed out to the jury in closing argument, "there is no other evidence that would bring this man before this court except the testimony of the 13-year-old girl" (Tr. 181).
We are also mindful of the unreported case of this court State v. Austin , # 34793, in which we found no error in the admission at trial of testimony by arresting officers concerning the nature of radio broadcasts which resulted in their action of stopping the suspects' car. In Austin we said:
There was no testimony in which it was directly alleged that the appellant had participated in the purported breaking and entering. While we recognize the potential prejudice that could arise from the inferences that could be drawn from the testimony with respect to the reason for stopping the appellant, we hold that under these circumstances the court did not err in admitting the testimony as relevant background information in explaining to the jury the circumstances leading to appellant's arrest. (p. 6).
Under these circumstances, we hold that the admission of the officer's testimony did not violate the Confrontation Clause or Art. I, ] 10 of the Ohio Constitution. In so holding, we are aware of appellant's argument before us that the prosecutor in addressing the jury did refer to an anonymous caller who said that Skinny was the "murderer" (see Tr. 7-8 and 171). However, appellant has not assigned these remarks as error, and furthermore, the court instructed the jury that opening and closing statements of counsel are not evidence (Tr. 220).
Appellant's first assignment of error is overruled.
II.PLAIN ERROR WAS PRESENT WHEN THE TRIAL COURT FAILED TO GIVE AN INSTRUCTION, AT DEFENDANT'S REQUEST, CONCERNING EYEWITNESS IDENTIFICATION.
After the court charged the jury but prior to the jury's retirement, the following colloquy took place between the court and defense counsel:
The requested instructions appear in two (alternative?) versions as Defendant's Exhibits A and B, and are worded as follows:
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