State v. Liberatore, 81-443

CourtUnited States State Supreme Court of Ohio
Citation23 O.O.3d 489,69 Ohio St.2d 583,433 N.E.2d 561
Docket NumberNo. 81-443,81-443
Parties, 23 O.O.3d 489 The STATE of Ohio, Appellant and Cross-Appellee, v. LIBERATORE, Appellee and Cross-Appellant.
Decision Date26 February 1982

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69 Ohio St.2d 583
433 N.E.2d 561, 23 O.O.3d 489
The STATE of Ohio, Appellant and Cross-Appellee,
LIBERATORE, Appellee and Cross-Appellant.
No. 81-443.
Supreme Court of Ohio.
Feb. 26, 1982.
Syllabus by the Court

1. While the initial calling of an uncooperative witness to the stand may be proper, the prosecution is not permitted to put before the jury, under the guise of impeachment, an out of court statement of that witness, by reciting extended unsworn and unrecorded remarks which inculpate the defendant, when there is good reason to believe the witness will decline to testify as desired.

2. Retrial for the same offense after reversal of a prior conviction on appeal does not constitute a violation of the constitutional provision prohibiting double jeopardy. A reversal of a judgment in a criminal [433 N.E.2d 563] case merely places the state and the defendant in the same position as they were in before trial.

On June 20, 1979, defendant, Chester Liberatore, was indicted on one count of complicity to commit aggravated arson and four counts of complicity to commit arson. These charges arose out of five incidents of arson or attempted arson in the south and southwest suburbs of Cleveland between October 20, 1978 and March 12, 1979. All fires were set in or near structures built by non-union tradesmen and laborers.

Joseph Zagaria, a union bricklayer, was completing his home at 9000 Ivy Oval, in North Royalton, when it was struck by arson on November 2, 1978. The home was built entirely of the labor of Zagaria, his children, and union carpenters and subtrades. The house across the street, at 9001 Ivy Oval, which was also destroyed that day, and neighboring houses which were not burned, were built mostly with non-union labor. The other arsons occurred in Strongsville on October 20, 1978, in North Royalton on November 8, 1978, and in

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Brecksville on March 12, 1979. Each of these incidents was the work of John Mata, the owner of a cement finishing company, a union member and acquaintance of defendant.

Mata's involvement in these crimes was first discovered on September 4, 1979 by FBI agents who were investigating his role in harboring Anthony Liberatore, defendant's brother, a fugitive under indictment for the murder of Daniel Green. Anthony Liberatore was captured at Mata's home. As a condition to an offer of federal protection under the Witness Protection Program, Mata was required to confess all prior criminal involvement. Mata thereupon admitted his involvement in the described arsons, and implicated Chester Liberatore, claiming Liberatore paid $1000 for each structure Mata burned. Mata produced a photostatic copy of a handwritten map, showing the locations of the structures at 9000 and 9001 Ivy Oval, North Royalton structures which Mata indicated he destroyed by arson on November 2, 1978. The map also contained, upon subsequent analysis, the palm print of defendant Chester Liberatore. Thereafter, Mata refused to cooperate with law enforcement authorities and was convicted of the five separate arsons, the same incidents for which defendant Liberatore was charged with complicity.

The theory of the state's case was that defendant paid Mata to burn homes and buildings in the south and southwest suburbs of Cleveland to intimidate builders into using union labor. The testimony of Mata to this effect was critical to the state's case.

Following his conviction for the arsons, Mata denied making the statement to the FBI in testimony before the Court of Appeals in a habeas corpus proceeding on May 30, 1979. On the day of Liberatore's trial, Mata's attorney told the state that his client was unwilling to testify. Despite the witness's reluctance to testify, the state called Mata as a witness, and propounded a series of some 30 leading questions "to refresh his memory."

Following his testimony the court gave the following limiting instruction: "Ladies and gentlemen, the Court has permitted the questions to be asked of this witness for the sole purpose of refreshing his recollection, and it may be considered by the jury for that purpose, and that purpose only,

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and for no other purpose." In its jury instructions, the trial court again gave cautionary instructions concerning this testimony:

"You may not consider the acts or statements of any one (conspirator) against the other unless the existence of an agreement or understanding to commit the criminal act is established.

" * * *

"The fact that a witness refused to answer a question after being instructed by the court to answer may be considered in determining the credibility of the witness and the weight of his testimony."

The state then called the FBI agent to whom Mata gave his original statement. [433 N.E.2d 564] Special agent Anthony T. Riggio proceeded to repeat, from memory, the statement given at that time.

At trial, the judge directed a verdict for defendant on three counts. The jury convicted Liberatore on the remaining two counts of complicity to commit arson, arising out of the burning of the two structures designated in the map produced by Mata, and bearing Liberatore's handprint. Defendant was subsequently sentenced.

On appeal the Court of Appeals reversed, in a split decision, remanding the case for retrial. The majority found the trial court erred to the prejudice of the defendant in allowing the examination of Mata and Riggio. 1 The court also found

Page 586

prejudicial error occurred during the closing arguments of the prosecution. 2

The matter is now before this court upon the allowance of a motion and cross-appeal for leave to appeal.

John T. Corrigan, Pros. Atty., and Carmen M. Marino, Asst. Pros. Atty., for appellant.

Gold, Rotatori & Swartz Co., L.P.A., Robert J. Rotatori and Susan L. Gragel, Cleveland, for appellee.


This case presents four distinct issues for our determination:

(I) Was the trial court correct in permitting the use of a prior unrecorded statement to refresh Mata's recollection;

(II) Was the testimony of FBI agent Riggio admissible for impeachment purposes;

(III) Did the prosecutor's repeated references during closing argument to evidence outside the record prejudice the defendant's rights to such an extent that reversal of his conviction is required; and,

(IV) Would retrial of the defendant constitute double jeopardy?

I. Mata's testimony.

The state contends that the prior statement of Mata should be treated as substantive evidence under the coconspirator exception to the hearsay rule. We reject this argument.

In Ohio, the declaration of a co-conspirator is not admissible

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as an exception to the hearsay rule unless the declaration is made during the course of and in furtherance of the conspiracy or resulting [433 N.E.2d 565] coverup. State v. Shelton (1977), 51 Ohio St.2d 68, 364 N.E.2d 1152. Since the prior statement which implicated Liberatore was made to a person known by the declarant to be an FBI agent, such statement clearly cannot be said to have been made in furtherance of or during the pendency of the conspiracy or cover-up.

Furthermore, there are no guarantees of trustworthiness presented which would allow the admission of such evidence under the statement against interest exception to the hearsay rule. Mata relayed Liberatore's alleged involvement in the arson in an effort to be accepted into the Witness Protection Program. To be so considered, Mata was required to confess all prior criminal activities. As such, the statement he proffered to FBI agent Riggio was not against his interest, but for his interest.

Even though Mata's statements to agent Riggio constitute inadmissible hearsay as evidence of the facts stated, the question remains whether such statements may be properly used as a device for refreshing the witness' recollection.

Under Ohio law as it existed at the time of this trial, 3 a party seeking to cross-examine its own witness concerning a prior inconsistent statement was required to show that he was surprised by the adverse testimony. See State v. Diehl (1981), 67 Ohio St.2d 389, 390, 423 N.E.2d 1112; State v. Minneker (1971), 27 Ohio St.2d 155, 158, 271 N.E.2d 821; State v. Duffy (1938), 134 Ohio St. 16, 15 N.E.2d 535.

In the present case, the prosecution did not claim surprise. Not only had Mata previously denied under oath that he had made the statement to Riggio, 4 but Mata's attorney specifically informed the state that he would likewise do so at trial.

Even if the state could have legitimately claimed it was surprised by Mata's testimony, it was improper for the trial court to allow the extended questioning of Mata. As this court held in State v. Dinsio (1964), 176 Ohio St. 460, 200 N.E.2d 467:

" * * * (I)t is error prejudicial to the defendant for the

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court to permit counsel for the state, by continued questioning of the witness, which questions go unanswered, to get before...

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