State v. James Daniels
| Decision Date | 22 October 1981 |
| Docket Number | #2,3: Sup. Ct. Rule 111),(O. Const. Art. IV,Certificate of Conflict,LOWER COURT NO. C.P.,43145,81-LW-0614,CR-49734 |
| Parties | STATE OF OHIO APPELLEE, v. JAMES DANIELS APPELLANT. COURT OF APPEALS |
| Court | Ohio Court of Appeals |
For plaintiff appellee: John T. Corrigan.
For defendant appellant: Kathleen O'Connell-Burton.
JOURNAL ENTRY
The judges of the Court of Appeals of the Eighth District of the State of Ohio, hereby find that the judgment entered in this cause is in conflict with the judgment pronounced upon the same question by other Courts of Appeals, to-wit Columbus v. Bee (1979), 67 Ohio App. 2d 65; State v. Moore (1973), 47 Ohio App. 2d 181; State v. Borsick (1978), 62 Ohio App. 2d 39.
Wherefore, the record of this cause, to-wit: State v. Daniels is hereby certified to the Supreme Court of Ohio for review and final determination.
Dated at Cleveland, Ohio, this 22nd day of October, 1981.
(McMonagle, J., Retired Judge of the Court of Common Pleas of Cuyahoga (Text at this point missing.)
STATE OF OHIO APPELLEE,
v.
JAMES DANIELS APPELLANT.
Court of Appeals of Ohio, Cuyahoga County.
October 22, 1981.
APPEAL FROM COMMON PLEAS COURT No. Cr-49734.
For plaintiff appellee: John T. Corrigan.
For defendant appellant: Kathleen O'Connell-Burton.
This cause came on to be heard upon the pleadings and the transcript of the evidence and the record in the Common Pleas Court, and was argued by counsel for the parties; and upon consideration, the judgment of the Common Pleas Court is affirmed. Each assignment of error was reviewed and upon review the following disposition made:
James Daniels, appellant, was indicted by the Cuyahoga County Grand Jury on eight counts: one count of aggravated burglary (R.C 2911.11); four counts of aggravated robbery (R.C. 2911.01); one count of rape (R.C. 2907.02); one count of felonious sexual penetration (R.C. 2907.12); and one count of receiving stolen property (R.C. 2913.51). On February 5, 1980, Daniels was found guilty by a jury on all counts but felonious sexual penetration (R.C. 2907.12). The charges stemmed from events which occurred during the early morning hours on August 20, 1979, in the City of Cleveland. On March 19, 1980, the Common Pleas Court sentenced appellant to seven to twenty-five years on counts one, two, three, four, five and six, and two to five years on count eight. Counts two to five to be served concurrently. Further facts relevant to the discussion of the principles of law contained herein are discussed in the opinion.
Appellant appeals from this conviction, assigning one error:
I. THE TRIAL COURT ERRED IN REFUSING TO ALLOW DEFENSE COUNSEL TO USE THE STATEMENT ON CROSS-EXAMINATION, IN REFUSING TO PERMIT DEFENSE COUNSEL TO PARTICIPATE IN THE "IN CAMERA" INSPECTION OF THE WITNESS' STATEMENTS, AND IN REFUSING TO SEAL THE STATEMENT FOR THE RECORD.
Although singular in form, this assignment raised three issues:
At trial, on direct examination, Gregory Wilson, one of the victims, testified to events which transpired on the evening of August 19, 1979, and early morning of August 20, 1979. (R. 351-356) During this examination, defense counsel discovered for the first time that Wilson made a statement to the police regarding his observations on the days in question. Defense counsel timely moved for an in camera inspection of Wilson's out-of-court statements "with the . . . . defense attorney present and participating." (R. 356) It is this statement which raised the controversy herein.
The rule setting forth the procedure whereby an in camera inspection of a witness' statement is conducted provides as follows:
The trial court inspected the statement and overruled the motion stating:
"The Court finds the written statement has no inconsistency with the testimony of the witness." (R. 356)
Defense counsel was not permitted to participate in the in camera inspection nor to use the statement. The same procedure was followed with respect to the other state witnesses.
Although the written statements of State's witnesses were not part of the transcript nor in the file as mandated by Crim. R. 16(B)(1) when not given to defense counsel they became a part of the record by by means of a motion under Appellate Rule 9(E). The above "Issue 3" is therefore overruled. See State v. Troy, 8th Ohio App. District, July 17, 1980, No. 41032, unreported.
We have reviewed the pretrial statements and the in-court testimony of the witness, Wilson, and find there was an omission in Wilson's testimony from that of his statement which, under the procedure followed by the trial court, defense counsel could not pursue as on cross-examination of the witness. A material omission is an inconsistency under the Rule.
"Issues 1 and 2" above will be considered together. The members of this panel of the Eighth District Court of Appeals, namely, Judges Leo A. Jackson, Jack Day, and George J. McMonagle (sitting by assignment) have concluded that Rule 16(B)(1)(g) is consistent with the principles of law enunciated in State v. White (1968), 15 Ohio St. 2d 146. In the fourth paragraph of its syllabus in White, the Supreme Court held:
"In a criminal case, the defendant has a right to an in camera inspection by the trial court, with counsel for the state and the defendant, to determine the existence of inconsistencies between the testimony of the prosecution's witness and their prior statements."
We interpret this language to intend that defense counsel must be afforded the opportunity of actually examining a statement of a witness subsequent to the witness giving direct testimony in the trial of the case.
Criminal Rule 16(B)(1)(g) requires that the Court, on motion of the defendant, shall conduct an in camera inspection of a written or recorded statement with the defense attorney present and participating to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement. We understand this language to intend that the defense lawyer shall have the right to call to the attention of the court any inconsistencies existing between the testimony of the witness and his statement. Any lesser procedure would deprive the court of any suggestions of counsel for the defendant with respect to the substantiality ofinconsistencies. Otherwise, in most instances, the trial court would be required to depend on his own recollection of the complete testimony of a witness in hindsight. Understandably, the court could fail to recall portions of that testimony. Although it may be argued the court may have the luxury of the court reporter rereading to him all or part of the testimony of a witness, this is not practicable nor does it afford defense counsel an...
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