State v. Lancaster

• Decision Date: 17 February 1971
• Docket Number: No. 69-762,69-762
• Citation: 25 Ohio St.2d 83,54 O.O.2d 222,267 N.E.2d 291
• Parties: , 54 O.O.2d 222 The STATE of Ohio, Appellee, v. LANCASTER, Appellant.
• Court: Ohio Supreme Court

Page 83

25 Ohio St.2d 83

267 N.E.2d 291, 54 O.O.2d 222

The STATE of Ohio, Appellee, v. LANCASTER, Appellant.

No. 69-762.

Supreme Court of Ohio.

Feb. 17, 1971.

Syllabus by the Court

1. Generally, an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. (Paragraph one of the syllabus of State v. Glaros, 170 Ohio St. 471, 166 N.E.2d 379, approved and followed.)

2. Statements which an accused freely volunteers to a county prosecutor without prior cautionary warnings are admissible to test the credibility of the accused after he has been sworn and testifies in his own defense.

3. Where a shooting is committed with a revolver, testimony by a rebuttal witness as to the accused's access to or ownership of revolvers in and around the time of the shooting is admissible after the accused has testified that he never owned or possessed a revolver at the time of the alleged crime.

4. A drawing of an alleged assailant sketched by a police artist, a poster reproduction of that drawing, a 'mug shot' of the accused taken after arrest, and the testimony of police officers as to statements describing the accused made to them by a prosecuting witness, are admissible solely to indicate the process by which the accused was identified, where that process is under attack, and to corroborate that identification.

5. Prior identification of the accused may be shown by the testimony of the identifier, or by the testimony of a third person to whom or in whose presence the identification was made, where the identifier has testified and is available for cross-examination, not as original, independent or substantive proof of the identity of the accused as the guilty party, but as corroboration of the testimony of the identifying witness as to the identity of the accused.

Appeal from the Court of Appeals for Franklin County pursuant to the allowance of a motion for leave to appeal.

C. Howard Johnson, Pros. Atty., and David H. Bodiker, Columbus, for appellee.

Davis E. Tingley, Columbus, for appellant.

SCHNEIDER, Justice.

The basic question at the trial was the identity of the person who committed the crime. The prosecuting witness, Raymond Sigler, a night attendant at a Columbus gas station, testified that at about 4:00 a. m. on September 3, 1965, he was robbed of $90 and shot in the back of the neck by a man he later identified as Thomas Eugene Lancaster.

Sigler stated that the accused drove into the service station in a dirty, small car. After the car's tank was filled with gas, the driver of the car pulled a small caliber gun from his coat pocket, took Sigler's money, forced the victim into the station's restroom, told him to place his hands against the wall, and then shot him in the back of the neck.

Sigler lay conscious, but was unable to move or call for help, for about 45 minutes. He was subsequently hospitalized for approximately three months, spent an additional six months in a rest home, and has suffered some irreparable physical damage.

Sigler testified that the filling station had enough light for him to see the facial features and clothes of the gunman. For two years following the incident, Sigler looked at hundreds of photographs and several line-ups, but was unable to identify his assailant. Based upon consultation with Sigler, a police artist drew a picture of the gunman, which Sigler said was 'a drawing of the man who shot me.'

In September 1967, Sigler identified a picture shown him by the police as his assailant. Two weeks later both the accused and Sigler were taken by the police to the Licking County Court House in Newark where, after seeing Lancaster in the hallway, Sigler identified him as the gunman.

I.

The first question of law is whether a prosecutor may converse with an accused without the presence of counsel, after indictment but before trial, and then use that information which was voluntarily given by the accused in an attempt to impeach the latter's testimony.

Several months before trial the appellant filed a notice of alibi, but at the trial he withdrew it. Later, on direct examination, the appellant testified that he could not remember where he was at the time of the crime. On cross-examination, the appellant denied making statements to the assistant county prosecutor the week before the trial to the effect that he remembered being in Newark playing cards on the morning of the shooting.

The appellant argues that prejudicial error occurred when the prosecutor cross-examined him about the withdrawn notice of alibi. We do not agree. The prosecutor attempted to cross-examine him regarding the alibi, but defense counsel promptly objected, the objection was sustained, and the jury was immediately instructed to disregard the question. A later attempt to introduce evidence of the alibi through testimony of a deputy clerk of court met with another objection, which was also sustained.

On cross-examination and over objection, the prosecutor asked the appellant if he had played gin rummy in Newark on or about September 3, 1965. After receiving an affirmative answer to that question, the prosecutor then asked, over objection, if the appellant had told him the previous week that he specifically remembered playing gin rummy with one Barker the night of the crime. Lancaster replied, 'I don't recall, sir.' In response to the next question, the appellant denied telling the prosecutor that he recalled that particular night because he had won and had been paid off with a chair in place of cash. We find no error in this series of questions.

The appellant insists further that the prosecutor should not have been allowed to take the witness stand and give testimony concerning the same conversation and alleged statements he received from Lancaster at a meeting in Michigan prior to the trial. The record shows that the prosecutor, defense counsel and Lancaster were to meet in Jackson, Michigan, to discuss the case. Defense counsel was three and onehalf hours late for the meeting. Before his arrival, Lancaster and the prosecutor engaged in conversation, during which Lancaster made the disputed statements.

No objection, however, was made to this testimony. Moreover, the defense had earlier attempted to call the prosecutor as its own witness.

Appellant's first objection to the prosecutor's testimony was made to the Court of Appeals. This was too late.

In the case of State v. Childs (1968), 14 Ohio St.2d 56, 236 N.E.2d 545, certiorari denied, 394 U.S. 1002, 89 S.Ct. 1596, 22 L.Ed.2d 779, we stated, in paragraph three of the syllabus:

'It is a general rule that an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. Paragraph one of the syllabus of State v. Glaros 170 Ohio St. 471, 166 N.E.2d 379, approved and followed.' Accord, State v. Johnson (1968), 14 Ohio St.2d 67, 236 N.E.2d 552.

We also re-assert the doctrine we stated at page 62 of the Childs' case in 140 Ohio St.2d, at page 549 of 236 N.E.2d: 'Constitutional rights may be lost as finally as any others by a failure to assert them at the proper time. State v. Davis (1964) 1 Ohio St.2d 28, 203 N.E.2d 357.' The interest of the state in the requirement of timely objection to improper evidence has been recognized in several United States Supreme Court decisions. Compare Douglas v. Alabama (1965) 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934; Henry v. Mississippi (1965) 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408.

Aside from the problem of waiver, the question remains as to whether there was a violation of the appellant's constitutional rights. In his attempt to show error, the appellant relies heavily upon the case of Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, wherein an investigator was enabled to overhear a defendant's damaging statements by the use of a secretly installed radio transmitter.

Here, there is no evidence that the information obtained was 'incriminating statements thus deliberately elicited,' as in Massiah, but rather 'various voluntary statements' made by Lancaster to the prosecutor, none of which were incriminating as to the appellant's guilt.

In State v. Butler (1969) 19 Ohio St.2d 55, at page 62, 249 N.E.2d 818, at page 822, we held that '* * * voluntary statements of an accused made to police without cautionary warnings are admissible on the issue of credibility after defendant has been sworn and testified in his own defense.' Accord, People v. Kulis (1966) 18 N.Y.2d 318, 274 N.Y.S.2d 873, 221 N.E.2d 541; United States ex rel. Kulis v. Mancusi (W.D.N.Y.1967) 272 F.Supp. 261, affirmed, 383 F.2d 405, certiorari denied, 389 U.S. 943, 88 S.Ct. 305, 19 L.Ed.2d 297.

The doctrine pronounced in Walder v. United States (1954) 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503, and followed in Tate v. United States (1960) 109 U.S.App.D.C. 13, 283 F.2d 377, approved the introduction of evidence wrongfully obtained for impeachment purposes only, even though the same evidence would be inadmissible to prove the case directly under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. We approve and follow that rule, as restated in paragraph two of the syllabus of State v. Butler, supra, 19 Ohio St.2d 55, 249 N.E.2d 818, as follows:

'The protection against compulsory self-incrimination does not operate to exclude the prosecution's use of voluntary statements of an accused, made to police without Miranda warnings, for the purpose only of impeaching his credibility on cross-examination.'

Butler observed that the statements in Miranda concerning the inadmissibility for impeachment purposes of...