State v. McKinley

• Decision Date: 17 June 1982
• Citation: 455 N.E.2d 503,7 Ohio App.3d 255
• Parties: , 7 O.B.R. 335 The STATE of Ohio, Appellee, v. McKINLEY, Appellant. *
• Court: Ohio Court of Appeals

Page 255

7 Ohio App.3d 255

455 N.E.2d 503, 7 O.B.R. 335

The STATE of Ohio, Appellee, v. McKINLEY, Appellant. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

June 17, 1982.

Syllabus by the Court

1. Crim.R. 25(A), governing the substitution of judge during trial, should be employed only in extraordinary circumstances where no prejudice will result. Whenever substitution is necessary, the record should clearly indicate that the judge has familiarized himself with the case and that the defendant has consented to the substitution.

2. In the absence of an objection to the substitution of a judge, it is presumed that the defendant consented. (Bowman v. Alvis, 88 Ohio App. 229, 232, 96 N.E.2d 605 .)

3. Where there is a substitution of a judge, and the record shows that the court complied with Crim.R. 25 and the defendant voiced no objection to the substitution after the partial testimony of the first witness, then, on appeal, the defendant is estopped from claiming a violation of his constitutional rights due to the substitution.

John T. Corrigan, Pros. Atty., for appellee.

Dallan W. Martin, Cleveland and Mark I. Wachter, Beachwood, for appellant.

CORRIGAN, Judge.

Defendant-appellant, Leon McKinley, and his co-defendant, Steve Lawson, were charged with breaking and entering and grand theft, violations of R.C. 2911.13 and 2913.02, respectively.

The presentation of testimony commenced on Wednesday afternoon, April 29, 1981, but had to be continued due to the illness of the trial judge. The court was in recess until Tuesday, May 5th, so that the substitute judge could familiarize herself with the case. Pursuant to Crim.R. 25, Judge Ann McManamon certified that she had familiarized herself with the record of the trial and had reviewed the absent judge's notes, and the trial proceeded.

Defense counsel moved for a mistrial, fearing that the delay may have antagonized the jury and caused them to forget their initial instructions and to speculate on the reason for the delay. The judge proceeded to poll the jury to allay counsel's fears. Trial continued with the testimony of the police officers who had arrested appellant. They testified that they had observed two males handling boxes in a pickup truck at 3:00 a.m., January 19, 1981. When they approached the truck, the males fled on foot and the officers followed. Once apprehended and given their rights, the males were questioned as to where the boxes came from. Appellant replied that he and Lawson had broken into a boxcar which contained the boxes. Indeed, the boxes were part of a shipment from Kelloggs to Seaway Foods via Conrail.

On May 6, 1981, the jury found appellant guilty of criminal trespass and grand theft. He was sentenced to two to five years at the Ohio State Reformatory. This timely appeal followed, in which appellant assigns these two errors for review:

"I. The trial court erred by not granting appellant's motion for a mistrial following the substitution of judges and a delay in the proceedings, thereby depriving appellant of his rights to a fair trial and due process of law.

"II. The trial court erred by overruling appellant's challenge to the entire array of the jury panel."

I

Appellant argues that the five-day delay prejudiced him and that the substitution of the trial judge, "mid-trial," deprived him of a fair trial. He contends that the absence of a transcript made complete familiarization with the testimony difficult.

First, we take note that the jury heard the partial testimony of one witness on April 29th before the 4:30 p.m. recess. This witness' testimony was substantially repeated for the jury, as well as the judge, on May 5th. Contrary to appellant's assertion, this constituted only a three-day delay since the jury certainly would have been excused for the weekend. Further, the judge went to great length to poll the jurors to ensure their proper frame of mind. Thus, we fail to see how any prejudice resulted from this minor delay at the start of trial.

Secondly, in regard to appellant's contention that prejudice resulted from the mid-trial substitution of a judge without a transcript, we note that the substitution occurred far from the mid-trial stage. As discussed above, only one witness' direct examination had taken place. This direct examination was resumed at approximately the halfway point of his earlier testimony. Thus, in essence, only six pages of transcript were "lost," and most of this consisted merely of introductory matters. We also note that appellant cites no essential material from these pages which could have affected the outcome of the case and resulted in prejudice by its omission.

Appellant places great reliance on Mason v. State (1904), 5 Ohio C.C. (N.S.) 113, to support his claim that the delay and substitution of a trial judge necessitate reversal. However, even the Ashtabula County Circuit Court recognized that there might be " * * * certain preliminary duties which a judge may perform and the case afterward be continued and completed by a different judge * * *." Id. at 117. Moreover, Mason is easily distinguished from the case at bar. In Mason, the jurors were separated for eighteen days and left open to outside influences in a "case exciting so much public interest." Id. at 118. Further, the substitute judge heard absolutely none of the evidence and thus observed none of the witnesses. Here, by contrast, there was only a minor delay, and the judge heard practically all the testimony and observed all the witnesses.

Next, appellant cites Freeman v. United States (C.A. 2, 1915), 227 F. 732, to support his contention that it is essential to a constitutional trial that there be the continuous presence of one judge. It is now accepted that a defendant may waive this right either by consent to the substitution or by failure to object. Patton v. United States (1930), 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854; Randel v. Beto (C.A. 5, 1965), 354 F.2d 496, certiorari denied (1967), 387 U.S. 935, 87 S.Ct. 2058, 18 L.Ed.2d 996; Simons v. United States (C.A. 9, 1941), 119 F.2d 539, certiorari denied (1941), 119 F.2d 539, certiorari denied (1941), 314 U.S. 616, 62 S.Ct. 78, 86 L.Ed. 496. The court in Simons referred to the holding of Patton that since the right to a jury trial may be waived, it would be unreasonable not to give effect to the waiver, and said:

"On like principles we hold that since the District Court had jurisdiction of the subject matter * * * subject only to the controlling provisions of the Constitution, and since the right to a jury trial, including the right to have the same judge proceed throughout the trial, as preserved by Article III, Section 2 of the Constitution, is a privilege which the accused may forego at his election, it would be unreasonable to leave the Court powerless to give effect to the waiver. We hold that the Court has authority in the exercise of a sound discretion to accept the waiver, and as a necessary corollary, to proceed to the trial and determination of the case with the substituted judge." Id. at 544.

Crim.R. 25(A), governing the disability of a judge during trial, provides:

"If...