State v. Jerry L. Harris
| Decision Date | 31 March 1988 |
| Docket Number | 87-CA-10,88-LW-1265 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Jerry L. HARRIS, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from Common Pleas Court, Case No. 86CR100113.
James M. Ronk, Knox County Prosecutor, John W. Baker, Assistant Prosecutor, Mt. Vernon, for plaintiff-appellee.
R William Meeks, Samuel H. Shamansky, Columbus, for defendant-appellant.
Before MILLIGAN, P.J., and HOFFMAN, and WISE, JJ.
RAPE 2907.02, GROSS SEXUAL IMPOSITION, 2907.05^INFANT WITNESS VOIR DIRE^INEFFECTIVE ASSISTANCE OF COUNSEL^LOCAL APPELLATE RULE 4(A).
Defendant-appellant was convicted of three counts of rape and four counts of gross sexual imposition by a Knox County Common Pleas Court jury. He was sentenced to consecutive ten-to-fifteen-years terms on each count of rape, and two years on each count of gross sexual imposition, to be served concurrently with one another and consecutively with the rape convictions. He appeals assigning two errors:
A.ATTEMPTED TO QUALIFY THE MINOR WITNESSES IN THE PRESENCE OF THE JURY; AND
B.FAILED TO DETERMINE IF THE MINOR WITNESSES UNDERSTOOD THEIR OBLIGATION TO TELL THE TRUTH AND POSSESSED THE REQUISITE INTELLECTUAL CAPACITY TO RECOUNT THE EVENTS IN ISSUE ACCURATELY.
This is a direct appeal from the trial and conviction. At trial, appellant was represented by privately retained counsel. (See State v. Hester (1976), 45 Ohio St.2d 71, 341 N.E.2d 304, observing that the fact of retained counsel is relevant upon issues of fair trial and substantial justice).
Appellate counsel has failed to comply with Loc.App.R. 4. Notwithstanding his allegations of ineffective trial counsel, in the interest of justice, we proceed to address the merits of the cause.
Included in the evidence of the State were tape recorded statements of the appellant recorded in the office of the prosecuting attorney and in the presence of law officers and represetatives of the Knox County Department of Human Services. Notwithstanding that the interview was investigatory and appellant voluntarily appeared, Miranda warnings were given and the appellant waived his right to counsel and made voluntary, incriminating statements. See Miranda v. Arizona (1966), 384 U.S. 436.
Upon the authority of, and consistent with the guidelines in Strickland v. Washington (1984), 466 U.S. 668, we conclude that the failure to move for suppression does not, upon the record in this case, constitute ineffective assistance of counsel. Appellant speculates, upon direct appeal, as to the "psychological" coercion claimed to exist at the time of the statements. That argument is simply not supported by the record.
To the contrary, if accepted, the argument of the appellant would tend to render every conviction, where there was a statement and no motion to suppress, reversible for want of adequate trial counsel. The law wisely contemplates just the contrary.
The filing of [motions to suppress] is not routine and should be done only where the motions have arguable merit.
State v. Steel (1982), 8 Ohio App.3d 137, 456 N.E.2d 513.
Compare United States v. Brown (D.C.Cir.1981), 663 F.2d 229.
Thus the failure to move for suppression of appellant's confession, under these facts and circumstances, did not violate an essential duty of legal representation. Strickland, 466 U.S. at 687; State v. Lytle (1976), 48 Ohio St.2d 391, 395, 358 N.E.2d 623, 626, vacated in part on other grounds (1978), 438 U.S. 910. And even if such failure was so deficient, appellant has made no showing of prejudice to satisfy the two-prong, Lytle^Strickland test for ineffective assistance of counsel.
Voir Dire of Child Witnesses in Presence of Jury, Without Objection.
Secondly, appellant claims that he was denied adequate assistance of counsel when his privately retained counsel failed to object to the method employed by the trial court of interrogating infant witnesses, for the purposes of determining competency, as upon voir dire in the court room in the presence of the jury.
Critical witnesses for the State were several infant victims. Prior to being adjudged competent or incompetent, each was questioned and observed by the trial judge. The questions were generally related to their understanding of truth and orientation as to time and place.
(The argument that this procedure constituted plain error is addressed in assignment of error II.)
Although, as pointed out later, it is preferable to conduct such voir dire hearings in camera, the failure to object to the in-court procedure is not such a deficiency in the performance of retained counsel as to fall below reasonable standards of professional conduct. Strickland, supra; Lytle, supra.
It is clear from the record that the trial court exercised discretion in declaring some witnesses competent and some incompetent, and properly instructed the jury.
The first assignment of error is overruled.
Competency Examination in Presence of Jury.
Preliminary questions are covered by the Ohio Rules of Evidence:
(C) Hearing of Jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall also be conducted out of the hearing of the jury when the interests of justice require.
The question of competency is a threshold matter addressed to the unique responsibility of the trial court judge. Evid.R. 104(A).
There is no legislative direction upon the procedure by which the court shall determine the competency of infant witnesses.
In counterdistinction to the admissibility of confessions, the mechanism and procedure by which the trial court determines competency is left to the sound discretion of the trial court.
The record in this cause does not demonstrate that the interest of justice require the competency hearing to be out of the presence of the jury, particularly when the jury is properly instructed as to its role in the matter. As a consequence, the question in this case is:
IS IT PLAIN ERROR TO INQUIRE AS TO INFANT COMPETENCY IN THE PRESENCE OF THE JURY?
There are occasions when no harm will result from the jury hearing foundational matters, and in such cases, convenience and time considerations are better served by not excusing the jury. Moreover, in many instances, the same evidence which is relevant to the foundation requirements is also relevant to weight and credibility. Allowing the jury to hear such foundational evidence avoids duplication and waste of time.
Weissenberger's Ohio Evidence, ] 104.28.
Time may be saved by conducting the preliminary hearing in the presence of the jury, such as the voir dire on the qualifications of an expert witness or the competency of a youth to testify.
Palmer (1987), Ohio Ct.Rm.Evid. 22.
The decision to allow the trial court to entertain the competency...
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