State v. Kehn

• Decision Date: 20 April 1977
• Docket Number: No. 76-496,76-496
• Citation: 361 N.E.2d 1330,50 Ohio St.2d 11,4 O.O.3d 74
• Parties: , 4 O.O.3d 74 The STATE of Ohio, Appellee, v. KEHN et al., Appellants.
• Court: Ohio Supreme Court

Page 11

50 Ohio St.2d 11

361 N.E.2d 1330, 4 O.O.3d 74

The STATE of Ohio, Appellee, v. KEHN et al., Appellants.

No. 76-496.

Supreme Court of Ohio.

April 20, 1977.

Appellants, Sergeant Dennis N. Kehn and Lieutenant Peter M. Mihalic of the Cleveland Police Department, were indicted on April 9, 1974, for numerous related felonies, including burglary. The indictment specified that appellants and a group of unindicted co-conspirators committed 32 separate felonies between March 28, 1971, and March 7, 1972. Only Charles Broeckel, an unindicted co-conspirator, was alleged to have participated in each of the 32 crimes charged.

In December 1973, Broeckel, incarcerated on unrelated felonies, wrote a letter to a member of the Intelligence Unit of the Cleveland Police Department which resulted in Broeckel's meeting with and informing an F.B.I. agent and a Cleveland police detective about certain crimes committed with police help. On January 31, 1974, Broeckel made a statement listing each crime, implicating his accomplices, and detailing the alleged participation of appellant police officers. Generally, appellants' alleged role was to act as 'watchdogs' when the crimes were committed to reroute any other police cars which came into the area, and to warn the burglars via walkie-talkie radios if anything suspicious concerning the current crime was heard over the police radio.

At appellants' trial, the state's main evidence was Broeckel's testimony. Apparently, Broeckel testified in exchange for shock parole, rather than complete a prison sentence for the earlier, unrelated felonies, and, further, in exchange for assurances that he would not have to serve time for any crimes that he admitted to at appellants' trial, even though he, and not appellants, was the only one named as a participant in each of the 32 felonies listed in the indictment.

A review of the record reveals that the state called 27 witnesses to testify. With the exception of Broeckel, most of the state's witnesses were the victims of the crimes in question and the police officers who investigated these crimes. A number of these witnesses circumstantially corroborated parts of Broeckel's testimony. ¹

The jury found appellants guilty on selected, though not identical, counts. As to appellant Mihalic, many counts were dismissed before jury deliberation because the evidence did not tie him in any way to certain of the crimes.

On August 5, 1974, ten days after the jury verdict, the trial judge received from Anthony Parete, the jury foreman, a small spiral notebook, a series of legal cap sheets, and an accompanying explanatory letter. These notes consisted of a digest of testimony; a summary and table of each crime; personal reactions to the testimony; legal concepts, a mixture of the court's and his own; and philosophical statements by St. Thomas Aquinas. Apparently, Parete made these notes daily, following trial.

The notes were taken into the jury deliberation room and were circulated among the other jurors.

On August 19, 1974, each juror was examined by the court, in the presence of counsel for both sides, 'to inquire into just exactly what extent these particular paper writings were involved in the jury deliberations.' Each juror answered that the notes had no effect on his or her verdict.

The trial court denied a motion for a new trial, and judgment was entered upon the verdicts. Upon appeal, the Court of Appeals affirmed.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., and Albin Lipold, Cleveland, for appellee.

Gold, Rotatori, Messerman & Hanna, Gerald S. Gold and Harry A. Hanna, Cleveland, for appellants.

PER CURIAM.

The nature of Broeckel's testimony is inherently suspect and untrustworthy, and we approach it with utmost caution. We note at the outset, however, that it is not our function, but that of the jury, to determine the credibility of the witnesses. See State v. Wolery (1976), 46 Ohio St.2d 316, 348 N.E.2d 351. In returning its verdict, the jury was obviously satisfied, and reasonably so, with the amount of corroboration to Broeckel's testimony.

Appellants jointly assert five propositions of law which allege error at trial. Additionally, appellant Mihalic asserts two other propositions.

Appellants' first proposition of law asserts that the trial court abused its discretion in not granting a continuance where the state delayed compliance with discovery orders and supplemented its witness list with 11 new names on the second day before trial.

A review of the record reveals that on April 11, 1974, the trial court originally set the trial date for June 4, 1974. On May 28, the court, sua sponte and with counsels' approval changed the trial date to June 18. Appellants' first request for a continuance was June 12.

The granting of a continuance is within the sound discretion of the trial court. Since the state relied so heavily on Broeckel's testimony, the sheer number of state's witnesses was not an inherent hardship. The majority of witnesses that the state expected to call were victims of various crimes and the police officers who investigated these crimes. Their testimony, when considered individually, would not have great impact on the case. Rather, it was Broeckel's testimony, subject to corroboration for credibility, which was the focal point of the trial. If counsel for appellants believed that the prospective witness list, which was given to them well in advance, necessitated additional time to prepare, then they should have requested a continuance at an earlier, more appropriate time. It appears that counsel is using the addition of 11 new names to the list as an excuse for their unusually late request. These new names did not alter defense counsel's preparatory strategy-their main concern was rebutting Broeckel's testimony.

The record shows that appellants were not hampered in any way by the denial of the continuance. With no showing of adverse effect, there can be no prejudicial error. We conclude that the trial court did not abuse its discretion, and accordingly overrule appellants' first proposition of law.

Appellants allege, as their second proposition of law, that the trial court committed error in admitting a certain writing, purporting to be an address book with a listing of 'Denny the Cop' followed by appellant Kehn's phone number, without first identifying the writing. Appellant Mihalic asserts that he was also prejudiced by this evidence because the state constantly referred to him as Kehn's 'partner.'

At trial, Sergeant Edward Kovacic identified the exhibit as the telephone address book that, pursuant to a search warrant, he removed from the home of Philip Christopher, an unindicted co-conspirator, in June of 1972. Kovacic testified that in his opinion the book appeared to be the same at trial as when he originally found it, and that the book had been in the possession of the F.B.I. from 1972 until the trial.

Such testimony was sufficient to identify and authenticate the writing.

The state offered the address book to support the existence of a conspiracy involving Kehn, Christopher and Broeckel. Kehn attempted to explain how his name and telephone number could have legitimately been in the book. It was the jury's function, as trier of fact, to weigh and determine the credibility of the evidence which was properly admitted.

This proposition of law is thus overruled.

Appellants' third proposition of law is that the trial court committed error when it refused to admit certain records, railroad employee time sheets, kept in the ordinary course of business on the ground that the maker of these records was not available to testify.

Kehn attempted to introduce these railroad time sheets, together with explanatory testimony from a railroad employee, to prove that Allan Pannetta, another unindicted accomplice in certain of the crimes, was working at the time certain burglaries were committed. Kehn desired to demonstrate that Broeckel was lying, or at least mistaken, about Pannetta's participation in these burglaries.

In affirming the trial court, the Court of Appeals stated that '(the railroad employee) did not testify that he was * * * the custodian of the records.' This stated basis was factually in error for the record shows that the witness was asked no less than four times if the record was 'under your custody or control.' Each time, the witness answered affirmatively.

However, the evidence was correctly excluded because it would have created a dispute about extraneous or collateral matters, i. e., Pannetta's participation. Kehn and Mihalic were on trial, not Pannetta, and the court, by excluding the testimony, avoided the dangers of surprise, jury confusion and wasted time which are the reasons for the rule against impeachment on collateral matters.

The trial court's exercise of discretion involved the weighing of the probative value of the offered evidence against its potential misuse by the jury. No abuse of discretion is evident, and this proposition of law is accordingly overruled.

In their fourth proposition of law, appellants assert that the trial court erred in admitting in evidence purported business records, bank deposit slips, without first determining that the records were made under circumstances justifying their admission under R.C. 2317.40. ²

The state sought to introduce these bank records as circumstantial evidence of a coin payoff following a vending machine company burglary as testified to by Broeckel. These records copies of two bank deposit slips, showed a deposit to each of the checking accounts of Kehn and Mihalic. Both slips indicated that the deposits were made in coin. The assistant to the special records officer testified that his department is custodian of the bank's records. He identified one of the offered exhibits as a copy of a deposit slip which was under his care and custody in the...