State v. James Bell
| Decision Date | 18 January 1996 |
| Docket Number | 94 CA 2270,96-LW-0085 |
| Court | Ohio Court of Appeals |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. JAMES BELL, Defendant-Appellant Case |
COUNSEL FOR APPELLANT: Douglas R. Sexton, 13 Park Avenue, West, Suite 607, Mansfield, Ohio 44902.
COUNSEL FOR APPELLEE: Mark E. Piepmeier, Special Prosecuting Attorney, & William E. Breyer, Special Assistant Prosecuting Attorney, 411 Hamilton County Courthouse, Cincinnati, Ohio 45202
DECISION
This is an appeal from a judgment of conviction and sentence entered by the Scioto County Common Pleas Court finding James Bell, defendant below and appellant herein guilty of felonious assault in violation of R.C. 2993.11(A)(2). The crime occurred on April 11, 1993 against Sergeant Darrell T Shepherd, a supervisor employed by the Ohio Department of Corrections and Rehabilitation serving at the Southern Ohio Correctional Facility in Lucasville, Ohio, at the beginning of the April 11, 1993 to April 22, 1993 prison riot.
On December 27, 1993, the Scioto County Grand Jury indicted appellant on one count of felonious assault with a prior conviction specification.[1] On March 25, 1994, appellant filed a request for a bill of particulars.
On March 28, 1994, appellee filed a bill of particulars. On that same date, appellee filed a document entitled "state's response to defendants' demands for discovery." The document gave appellant a list of the three witnesses appellee intended to call at trial, copies of appellant's criminal record and medical record, and an invitation to make an appointment to inspect and to copy the physical exhibits that appellee intended to use at trial. The document stated that appellant did not give any statements and did not testify before the grand jury.
On April 4, 1994, appellant filed a document entitled "request and alternative motion for discovery." In the document, appellant requested permission to inspect and to copy statements, written summaries of oral statements grand jury testimony, appellant's criminal record, the results of any examinations made in connection with this case, a list of all witnesses that appellee intends to call at trial, and any other items which appellee intends to use at trial. On April 15, 1994, appellant requested appellee to give notice concerning what evidence appellee intends to use at trial.
On May 13, 1994, appellant filed a motion for change of venue. In the motion appellant argued that extensive news coverage and wide community exposure to the information concerning the crime has created a substantial likelihood that he will be denied his constitutional rights to a fair and impartial jury and a fair trial unless venue is changed. Appellant argued that if the trial court denies the motion for change of venue, the trial court should permit extensive individual voir dire of the prospective jurors.
On May 13, 1994, appellant filed a motion to compel appellee to respond to appellant's April 5, 1994 request for evidence. Also on May 13, 1994, appellant filed a motion to compel appellee to amend its bill of particulars. Appellant noted that the trial court had set a May 13, 1994 cutoff date for motions. Appellant further noted that appellee had failed to respond to all the paragraphs in appellant's March 25 1994 request for a bill of particulars.
On June 2, 1994, the trial court issued an order: (1) granting appellant's motion to compel appellee to amend the bill of particulars in certain respects; (2) granting appellee's motion to compel appellee to respond to appellant's request for evidence; (3) extending the cutoff date for motions to June 21, 1994; and (4) overruling appellant's motion for change of venue.
On June 21, 1994, appellee filed a document listing the evidence it intended to use at trial and filed an amended bill of particulars.
On July 18, 1994, appellant filed a motion for continuance of the trial set for July 25, 1994. In the memorandum in support of the motion, appellant noted that appellee did not provide discovery until June 21, 1994. Appellant argued that he needed more than thirty-four days to prepare for trial. We note that appellant did not specify why he could not prepare for trial in thirty-four days.
On July 18, 1994, appellant filed a motion to suppress: (1) a photo array used in pretrial identification; (2) the pretrial identification of the defendant by any and all witnesses who viewed the photo array; and (3) any and all testimony of any such witnesses.
On the July 25, 1994 scheduled trial date, the trial court heard appellant's motion to suppress the photo array and related evidence. Ohio State Highway Patrol Trooper Cary Sayers testified that in October 1993 he showed the crime victim, Sergeant Shepherd, two books of photographs of a total of approximately four hundred prisoners. Officials took the photographs when processing prisoners at the end of the ten-day prison riot. Sergeant Shepherd identified appellant as one of the prisoners who attacked him. On cross-examination, Trooper Sayers testified that in February 1994 he showed only four photographs on one page of one photograph book to Corrections Officer Dan Michael Stern. Officer Stern identified appellant as one of the prisoners who attacked Sergeant Shepherd.
Sergeant Shepherd testified that he identified appellant from the two books of photographs. Sergeant Shepherd testified that at the time of the crime, he observed appellant for a few minutes when his face was approximately two or three feet away from Sergeant Shepherd's face under very bright light conditions.
Officer Stern testified that Trooper Sayers showed him the one page of four photographs. Officer Stern identified appellant's photograph among the four photographs. Officer Stern testified in pertinent part as follows:
"Q. So would you -- - even if you had never seen these photographs, would you still recognize this as the man who was attacking Sergeant Shepherd and attempted to attack you?
A. Without a doubt.
Q. How close did you get to him?
A. Ranging anywhere from three feet to a foot.
Q. Very close. Almost nose to nose?
A. Yes, sir.
Q. A foot is pretty close, isn't it?
A. Extremely close."
When asked on cross-examination if there was any characteristic in the photographs that stands out, Officer Stern testified that appellant's face stands out. When asked if the fact that two of the men in the pictures had beards and two did not have beards affected his identification, Officer Stern said no. Officer Stern further testified that appellant's beard was not part of the description that Officer Stern gave Trooper Sayers.
At the close of the evidence, appellant argued that because Sergeant Shepherd and Officer Stern testified that they could identify appellant from their own memory and not from the photographs, the photographs are irrelevant and the out-of-court identifications are unnecessary. Appellant further argued that the page of four photographs shown to Officer Stern was unduly suggestive because two of the men had beards and two did not have beards. Appellant asked the trial court to suppress Officer Stern's out-of-court identification. The trial court overruled appellant's motion to suppress the photo array and related evidence.
Next, appellant renewed his motion for a continuance of the trial date. Appellant argued that "[i]t's very difficult for us to prepare to meet the challenge of the State of Ohio * * * in a mere 30 days." We note that although appellant said it is difficult to prepare for trial in 30 days, appellant did not state that he was unprepared for trial. Appellant gave no specifics concerning what, if any, additional trial preparation was necessary. The trial court overruled appellant's motion for a continuance.
Next, appellant requested permission to voir dire the potential jurors individually in chambers. The trial court overruled appellant's request and began voir dire.
During voir dire, the trial court excused ten potential jurors for cause before seating twelve jurors and two alternates. Many of the jurors testified that they had relatives and close friends who worked at the prison. All twelve jurors and two alternates, however, assured the trial court that they could decide the case based upon the evidence. Most of the jurors had heard or read about the April 1993 prison riot. None of the jurors, however, had heard about the crime appellant committed against Sergeant Shepherd during the course of the riot. We note that appellant waived his fourth and final preemptory challenge.
Appellee presented three witnesses at trial. Trooper Sayers testified concerning the photographs that officials took of each prisoner at the conclusion of the riot. Trooper Sayers noted that...
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