State v. Minneker

• Decision Date: 14 July 1971
• Docket Number: No. 70-411,70-411
• Citation: 27 Ohio St.2d 155,271 N.E.2d 821
• Parties: , 56 O.O.2d 97 The STATE of Ohio, Appellee, v. MINNEKER, Appellant.
• Court: Ohio Supreme Court

Page 155

27 Ohio St.2d 155

271 N.E.2d 821, 56 O.O.2d 97

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

No. 70-411.

Supreme Court of Ohio.

July 14, 1971.

Syllabus by the Court

1. An indictment containing three counts, viz., (1) conveying articles into a place of confinement to aid an escape; (2) illegal possession of an instrument for administering drugs; and (3) unlawful possession of a narcotic drug, does not violate R.C. § 2941.04 and is not prejudicial to the appellant even though the first count is of a different class of crimes or offenses from the last two so long as there is ample proof in the record to connect the three counts in their commission. (State v. Atkinson (1965), 4 Ohio St.2d 19, 211 N.E.2d 665, distinguished.)

2. A party is not permitted to attack the credibility of his own witness by attempting to prove a witness' extrajudicial oral prior inconsistent statement through the testimony of another who was present when the statement was made and who testified from memory as to the substance of the statements which were damaging to the accused.

3. A voluntary delivery of articles by a suspect before the police present a search warrant for the same does not constitute a search and seizure. State v. McCarthy (1971), 26 Ohio St.2d 87, 269 N.E.2d 424, citing Weeks v. United States (1914), 232 U.S. 383, 397, 34 S.Ct. 341, 58 L.Ed. 652.

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

On February 14, 1969, Charles Edward Minneker was indicted on three counts, towit: conveying articles into a place of confinement to aid an escape (R.C. § 2917.14); illegal possession of an instrument for administering drugs (R.C. § 3719.172); and, unlawful possession of a narcotic drug (R.C. § 3719.09). The matter came on for trial on September 25, 1969, when the appellant was found guilty as to counts one and three and not guilty as to count two. Upon appeal, the Court of Appeals affirmed.

Harry Friberg, Pros. Atty., and James E. McCormick, Toledo, for appellee.

Thomas N. Tomczak, Toledo, for appellant.

SCHNEIDER, Justice.

On the night of September 14, 1968, two prisoners escaped from the Lucas County Jail.

On November 6, 1968, deputy sheriff Fox commenced an investigation after he was informed by a number of prisoners that they had observed the appellant with pills, nutmeg and whiskey and that he was selling these items to some of the prisoners. During the course of his investigation, Fox was told by a prisoner, Boone, that on two different occasions he had seen appellant with a gun and hacksaw blades taped to his legs. The evidence showed that two prisoners used hacksaw blades in their escape.

Later, it was learned that appellant was frequenting the Starlite Bar in Toledo, Ohio, and seeing a woman known as Tonya Thomas. Since they had information that the appellant had pills and a syringe in his possession which he was selling to the prisoners, they asked Mrs. Thomas to cooperate with them in the appellant's apprehension.

On the afternoon of November 30, the appellant entered the Starlite Bar and met Tonya Thomas. An officer from the Toledo Police Department was sitting at the bar and saw and envelope pass from Mrs. Thomas to appellant. At 5:50 p. m. when appellant left the bar, the officers, on a prearranged signal, followed him out and immediately advised him that he was under arrest, at which point appellant voluntarily reached into his pocket and handed the police the envelope containing the marijuana he received from Mrs. Thomas.

A week prior to trial, a state's witness, Lamont, had a conversation with the prosecutor relative to his prior conversation with the appellant regarding the jail break. After taking the stand Lamont forgot some and denied other parts of the conversation and the court declared him a hostile witness. Thereafter, the state called deputy sheriff Fox, who was present during the conversation with Lamont and the prosecutor, to testify as to Lamont's oral statement implicating the accused.

Appellant contends that when a single indictment contains charges against an appellant for possession of narcotics, possession of narcotic instruments, and conveying articles into a jail to aid an escape, the joinder is improper and prejudicial under R.C. § 2941.04.

R.C. § 2941.04 states, in part:

'An indictment or information may charge two or more different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more indictments or informations are filed in such cases the court may order them to be consolidated.'

Both parties cite State v. Atkinson (1965), 4 Ohio St.2d 19, 211 N.E.2d 665, as determinative of the law. In Atkinson, the indictment joined counts of forging a check, uttering a forged check, and carrying a concealed weapon. This court noted that R.C. § 2941.04 makes no provision for joining the three offenses, 'nor does the record itself show any connection between counts one and two and the third count in the acts or conduct of the defendant.' State v. Atkinson, supra, 4 Ohio St.2d 19, 21, 211 N.E.2d 665, 666. Therefore, the joinder was improper.

The distinguishing factor between Atkinson and the instant case is that here there was ample evidence in the record to connect the three counts through the acts and conduct of the appellant.

In sustaining the joinder of offenses here, we are not unaware that in some instances a joinder of separate and distinct offenses unrelated in their commission may prejudice an appellant's right to a fair trial. Improper joinder may not only confuse a jury but may create an unfavorable impression in their minds as to an appellant's character before any evidence has been admitted as to his guilt or innocence. This is not the case here.

Due to the relationship of the counts to the acts and conduct of the appellant, if the counts were tried separately, the state, in attempting to prove one of the counts, could hardly avoid eliciting testimony as to the others.

In view of the totality of the circumstances surrounding appellant's conduct, we hold that the denial of appellant's motion for improper joinder did not constitute prejudicial error.

For purposes of clarity, appellant's second and third propositions of law will be treated as one.

Appellant contends that, absent a showing of hostility or surprise, it was error for the trial court to permit the state to cross-examine its own witness and thereafter discredit that witness through the testimony of another.

'The condition precedent to the right of a party to interrogate his own witness concerning a prior statement by him, made at variance with his testimony, is that the party be taken by surprise by the adverse testimony.' State v. Duffy (1938), 134 Ohio St. 16, 20, 15 N.E.2d 535, 538. Absent any forewarning of Lamont's intent to repudiate under oath statements made a week prior to trial, his subsequent adverse testimony may be said to have come unexpectedly and to have taken the state by surprise. State v. Duffy, supra, 134 Ohio St. 16, 15 N.E.2d 535.

Declaring a witness hostile is a matter of discretion on the part of the trial court. See United States v. Duff (1964), 332 F.2d 702 (C.A.E.D.Mich.). See, also, 98 C.J.S. Witnesses, § 368, n. 86, p. 120. There was no abuse of discretion here.

The rule of law long recognized in Ohio is that a party surprised by the adverse testimony of his witness should be permitted to cross-examine him concerning his prior inconsistent statement only for the purpose of refreshing his recollection. State v. Springer (1956), 165 Ohio St. 182, 134 N.E.2d 150; State v. Duffy, supra, 134 Ohio St. 16, 15 N.E.2d 535; Hurley v. State (1889), 46 Ohio St. 320, 21 N.E. 645. See, also, 117 A.L.R. 326, 328; 74 A.L.R. 1042, 1052 et seq., 58 American Jurisprudence 443 to 449, Witnesses, Section 798 to 804; 98 C.J.S. Witnesses § 578, p. 537.

We find no error prejudicial to the appellant in the cross-examination by the state of its own witness.

In other jurisdictions, a party may not only impeach his own witness when surprised by his adverse testimony, but if the witness denies having made the statement he may prove the same to impeach him. ¹ However, there are certain statutory limitations. New York and Wisconsin through legislative enactment limit the impeachment of one's witness to statements in writing or under oath. Section 8-a, N.Y.Code Cr.Proc.; Section 325.35, Wis.Stats. (for criminal cases). ²

In the absence of statute, this state forbids a party from discrediting its own witness by proof of prior inconsistent statements through the testimony of another. Hurley v. State, supra, 46 Ohio St. 320, 21 N.E. 645; State v. Duffy, supra, 134 Ohio St. 16, 15 N.E.2d 535. See, also, 58 American Jurisprudence, 448, Witnesses, Section 803. The rationale is well stated by Greenleaf in his treatise on Evidence:

'When a party offers a witness in proof of his cause, he thereby, in general, represents him as worthy of belief. He is presumed to know the character of the witnesses he adduces; and, having thus presented them to the court, the law will not permit the party...