State v. Maupin, No. 74-354

• Court: United States State Supreme Court of Ohio
• Writing for the Court: STEPHENSON; C. WILLIAM O'NEILL; STEPHENSON, J., of the Fourth Appellate District, sitting for CORRIGAN; STERN; WILLIAM B. BROWN
• Citation: 42 Ohio St.2d 473,71 O.O.2d 485,330 N.E.2d 708
• Docket Number: No. 74-354
• Decision Date: 25 June 1975
• Parties: , 71 O.O.2d 485 The STATE of Ohio, Appellee, v. MAUPIN, Appellant.

Page 473

42 Ohio St.2d 473 330 N.E.2d 708, 71 O.O.2d 485 The STATE of Ohio, Appellee,
v.
MAUPIN, Appellant. No. 74-354. Supreme Court of Ohio. June 25, 1975.

[330 N.E.2d 710] Syllabus by the Court

1. The best evidence rule is without application to proof of the nature, appearance or condition of physical objects; such facts may be proved by parol evidence without the

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necessity of introducing the objects in evidence or accounting for their absence.

2. The admission in evidence of the testimony of a Cincinnati

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police officer that a substance was marijuana was not an abuse of discretion where the officer had 14 years experience as a member of the vice squad of the Cincinnati Police Department, had one and a half years experience as an undercover agent for the Federal Bureau of Narcotics, had made hundreds of arrests, including those for drug violations, and, during the course of drug investigations, he had occasion to see and observe marijuana.

3. A supplemental jury instruction urging a jury to make every reasonable effort to decide the case which is immediately followed by the admonition 'if you can conscientiously do so' and is preceded in the general charge by instructions that deliberations should be with the object of reaching an agreement if it can be done without disturbing the individual judgment of the juror and that honest convictions should not be surrendered in order to be congenial or to reach a verdict solely because of the opinion of other jurors, is not prejudicially coercive.

4. The giving of a neutral supplemental instruction, urging the jury to attempt to reach a verdict, upon notification by the jury to the court that it was having difficulty reaching an agreement after deliberations of two hours and twenty-nine minutes, with no other circumstance present with the potential of coercion of the jury, is not an abuse of discretion.

James Edward Maupin, appellant herein, was indicted in August 1971 for the offense of giving away an hallucinogen, in violation of R.C. 3719.44(D). Upon trial to a jury, appellant was found not guilty of violating R.C. 3719.44(D), but guilty of the offense of possession of an hallucinogen, proscribed by R.C. 3719.41. The latter offense

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was submitted to the jury as a lesser and included offense of R.C. 3719.44(D). ¹

[330 N.E.2d 711] At trial, testimony was given by Mary Hosinki, a Cincinnati policewoman, and Robert Walls, a Springdale, Ohio, police officer, on behalf of the state. Their testimony tended to establish that, while acting as undercover agents on May 15, 1971, they sought out and made the acquaintance of the appellant at a Cincinnati night club where he was employed as an entertainer; that in the early morning hours of May 18, 1971, they were invited by appellant to his apartment in Cincinnati; that, while in the apartment, inquiry was made to appellant by Patrolman Walls if he could smoke; that appellant secured a small leather pouch from a cabinet, and removed from the pouch a small plastic bag containing a substance that appeared to be marijuana; that appellant then removed a portion of the substance from the bag, placed it in the bowl of a corn cob pipe, lighted it, and gave it, together with the plastic bag, to Officer Walls. Appellant then left for the purpose of walking his dog. Upon appellant's return, the officers left, taking with them the small plastic bag and its contents. At trial, the state presented the testimony of a chemist that, based upon microscopic and chemical testing, the contents of the bag was cannabis. The plastic bag and contents were introduced in evidence.

Appellant presented witnesses, including character witnesses, and testified in his own behalf. His testimony, in substance, was that on the night in question the officers smoked marijuana cigarettes in his apartment; that Officer Hosinki handed him a marijuana cigarette she was smoking; that he took a couple of puffs and handed it back; that the cigarettes were brought into the apartment by the

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officers; and that he did not have any marijuana in his residence in the month of May. Additionally, defense counsel brought out before the jury, both by cross-examination of the state's witnesses and on direct examination of a defense witness, that on the night of appellant's arrest on May 25, 1971, at his place of employment, he was taken to his apartment and a search made pursuant to a search warrant.

As a part of its rebuttal evidence, the state presented the testimony of Sergeant Paul James Allen, one of the searching officers, that he found, in a grip under a bed, a tobacco pouch. Inside the pouch, in a small plastic bag identical to that introduced in evidence in chief, he found a substance which, he testified, was a form of marijuana. Neither the pouch nor its contents were introduced in evidence. A return of the search warrant listing the finding of the tobacco pouch and plastic bag containing cannabis was introduced in evidence by the state, without objection.

At the conclusion of the court's general charge, upon appellant's motion, the exact nature of the motion not appearing in the record, the court gave an additional instruction that the included offense of possession of marijuana could only relate to the incident occurring on or about May 17, 1971. A general exception was taken to the charge and, as to the marijuana found in execution of the search warrant, a specific exception that the court should have charged that 'there has been evidence adduced in this case which contends that marijuana was found in the possession or in the household of the defendant on the 25th day of May. No evidence having been adduced to determine that that is marijuana, you are instructed to disregard that entirely as any proof whatsoever of possession of marijuana by this defendant, even as possible supportive proof in relation to the incident of May 17th.'

The case was submitted to the jury on May 2, 1972, at 11:40 a.m. the exhibits and verdict forms being furnished the jury at 11:55 a.m. At 11:56 a.m., the jury recessed for lunch. Deliberations were resumed at 12:59 p.m. The jury

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returned at 2:59 p.m. to the court and requested a rereading of the portion of the charge upon entrapment. Deliberations resumed at 3:01 p.m. The jury buzzed again at 3:14 p.m. [330 N.E.2d 712] and were returned to the courtroom at 3:26 p.m. No inquiry was made of the jury nor was the purpose of their return stated to counsel. However, the court, stating that it had been advised that the juy was having difficulty in reaching a verdict, gave a supplemental instruction respecting the jurors duties toward reaching a verdict. The jury was returned to the jury room at 3:29 p.m., and a verdict of guilty was returned at 3:58 p.m. Trial time was approximately four days.

On March 29, 1973, imposition of sentence was suspended and appellant placed on probation for three years.

Upon appeal, the judgment of conviction was affirmed. The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

James Allen Crary and Allen Brown, Cincinnati, for appellant.

Simon L. Leis, Jr., Pros. Atty., and Joseph G. Carr, Toledo, for appellee.

STEPHENSON, Justice.

Appellant's assertions of error in this appeal relate (1) to the introduction of the rebuttal testimony of Sergeant Allen, (2) to a claimed refusal of the trial court to give proper limiting instructions to the use by the jury of the evidence of marijuana found in the May 25th search, and (3) to the instruction in response to the jury's indication of difficulty of agreeing upon a verdict.

Appellant's initial argument is that the admission of the rebuttal testimony in question was prejudicially erroneous. Such argument is premised, basically, upon the following grounds: (1) The substance found in the May 25, 1971, search and identified by Sergeant Allen as marijuana was not brought into court and introduced in evidence, (2) scientific analysis is required for the proper identification of marijuana and (3) such rebuttal testimony was introduced

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by the state for the purpose of showing appellant's bad character and reputation by a specific act committed after the time of the offense for which he was being tried.

The contention that the oral testimony as to the substance found is precluded unless the substance is brought into court and introduced in evidence is without merit. It is a rule of practically universal application that the best evidence rule is without application to proof of the nature, appearance or condition of physical objects; that such facts may be proved by parol evidence without their physical production in court or explanation of their nonproduction. 32A C.J.S. Evidence § 782, p. 101; 1 Underhill's Criminal Evidence (6 Ed.) 243, Section 103; 21 Ohio Jurisprudence 2d 275, Section 257. See 4 Wigmore on Evidence (Rev.Ed.), 419, Section 1181.

The rule has been applied in Ohio. Napolet v. Bd. of Liquor Control (1953), 67 Ohio Law Abst. 108, 119 N.E. 2d 93. Outside Ohio, it has been applied in drug-violation prosecutions. Francis v. United State (1956), 10 Cir., 239 F.2d 560; People v. Marinos (1968); 260 Cal.App.2d 735, 67 Cal.Rptr. 452; United States v. Gregorio (1974), 4 Cir., 497 F. 2d 1253; United States v. Irion (1973), 9 Cir., 482 F. 2d 1240; Straub v. United States (1965), 5 Cir., 351 F.2d 304.

We also reject appellant's assertion that the parole identification of the substance found in the May 25th search was inadmissible for the reason that no chemical or scientific analysis was made of such substance. There is a serious question as to the sufficiency of appellant's objection in the record to preserve the question for review. However, resolving the question in favor of appellant, he still cannot prevail.

By reason of its availability to prosecuting authorities, its reliability and persuasiveness to juries, the utilization of expert...