State v. Pinkney

• Citation: 36 Ohio St.3d 190,522 N.E.2d 555
• Decision Date: 04 May 1988
• Docket Number: No. 87-831,87-831
• Parties: The STATE of Ohio, Appellee, v. PINKNEY, Appellant.
• Court: United States State Supreme Court of Ohio

Page 190

36 Ohio St.3d 190

522 N.E.2d 555

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

No. 87-831.

Supreme Court of Ohio.

May 4, 1988.

Syllabus by the Court

1. The clearness or want of clearness of recollection of a witness as affecting that witness's credibility is a proper subject for cross-examination.

2. Knowledge by a public official that certain conduct is unlawful is not an element of the crime of his "knowingly" authorizing a public contract in which he has an interest, as set forth in R.C. 2921.42(A).

Defendant-appellant, Arnold R. Pinkney, was appointed to the Board of Directors of the Cleveland-Cuyahoga County Port Authority (hereinafter "Port Authority") on March 24, 1980, and reappointed February 22, 1982. He held the position of Secretary of the Port Authority and served as a member of its finance committee. During this period of service Pinkney was also a shareholder and employee of the Pinkney-Perry Insurance Agency, Inc. Pinkney received compensation of approximately $50,000 per year as a result of this interest in the insurance agency.

Prior to Pinkney's appointment to the Port Authority in March 1980, members of the Port Authority had expressed their concern at a board meeting in regard to exposure to liability for actions taken in their capacity as board members. Shortly after his appointment, Pinkney was asked to investigate the availability of insurance designed to protect directors and officers from such liability. At this time the Port Authority was not authorized by the Revised Code to pay the premium for this insurance. Therefore, individual board members securing such coverage had the responsibility for payment of the premiums.

There is no indication that Pinkney attempted to influence other members of the board to secure insurance coverage or place the business with the Pinkney-Perry Insurance Agency.

The directors' and officers' liability insurance policy covering the term of August 1, 1980 to August 1, 1983 was implemented by Charles B. Perry, Pinkney's business associate. The cost of the coverage for the three-year term was $17,316. The premium was billed in three equal annual installments of $5,772 payable on August 1 of 1980, 1981, and 1982. On July 9, 1982, legislation permitting the Port Authority to pay the insurance premiums for such coverage on individual board members became effective. See R.C. 4582.27(C)(3). This same policy placed by the Pinkney-Perry Insurance Agency remained in effect and, pursuant to instructions from a representative of the Port Authority, the insurance agency forwarded an invoice to the executive director of the Port Authority in the amount of $10,496.44, representing the balance of premiums due for the remaining term of the policy. Charles Thomas Burke, the executive director, authorized payment of this invoice and a check was prepared in this amount.

The check drawn on the account of the Port Authority for payment of the invoice was first signed by Jay Ehle, Chairman of the Port Authority Board, and then by Pinkney in his capacity as secretary and fiscal officer. The rules and regulations of the Port Authority require the signature of two officers when an instrument is more than $5,000. It is further provided that the board of directors must authorize these expenditures by motion or resolution. Records of the Port Authority do not indicate passage of any motion or resolution by the board approving the payment of this premium.

Subsequently, on September 13, 1984, Pinkney was indicted on four counts of unlawful interest in a public contract in violation of R.C. 2921.42. ¹ Pinkney entered pleas of not guilty and the matter proceeded to trial by jury. At the conclusion of the state's case, the trial judge granted a motion to dismiss three of the four counts. The trial proceeded on the reamaining count and on May 29, 1985, the jury returned a verdict finding Pinkney guilty of knowningly authorizing a public contract in which he had an interest. The trial court overruled a motion for judgment of acquittal and a motion for a new trial, and judgment was entered upon the verdict. Pinkney was sentenced to one and one-half years' imprisonment, which was suspended, and placed on probation for one year. As a condition of probation, Pinkney was ordered to make restitution of his share of the premium and complete sixty hours of community service.

Upon appeal, the court of appeals, with one judge dissenting, affirmed the decision of the trial court.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., and Thomas H. Terry III, Cleveland, for appellee.

James R. Willis, Gerald S. Gold and Robert A. Ranallo, Cleveland, for appellant.

GLASSER, Justice.

Appellant's first of seven propositions of law asserts that the trial court erred in not requiring the state to provide rebuttal evidence to support its cross-examination of a critical defense witness. Appellant's witness, Martin J. Hughes, testified on direct examination that he had approached Pinkney about the possibility of procuring directors' liability insurance for members of the board. Upon cross-examination, counsel for the state asked Hughes if he recalled when and where such request was made and whether Hughes had been able to recall such when subsequently questioned by detectives from the sheriff's office. ²

Appellant contends that this line of questioning was improper once it became apparent that the state was not going to offer any rebuttal evidence such as the statements or testimony of the detectives. We do not agree.

Initially we note, as did the appellate court, that, although appellant referred to this alleged error in closing argument, he failed to timely interpose an objection. Such omission constitutes a waiver of the issue upon review. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156; see, also, State v. Young (1908), 77 Ohio St. 529, 83 N.E. 898. Notwithstanding the waiver, we note that the state's line of questioning involved the ability of a witness to recall certain conversations. Clearly, the credibility of a witness may be affected by his ability to state correctly and clearly the facts as he remembers them and as they took place. Hence, the clearness or want of clearness of recollection of a witness as affecting that witness's credibility is a proper subject for cross-examination. Additionally, the presentation of collateral evidence relative to the credibility of a witness, as opposed to a party, is disfavored as it tends to divert the attention of the jury and waste judicial time. See State v. Kehn (1977), 50 Ohio St.2d 11, 4 O.O.3d 74, 361 N.E.2d 1330. Hence, the state's line of questioning was not improper and appellant's first proposition of law is overruled.

Appellant alleges as his second proposition of law that the trial court violated his right to the effective assistance of counsel by prohibiting defense counsel from making direct reference to the applicable law in counsel's summation. Specifically, appellant argues that the trial court erred in not allowing counsel to read to the jury directly from the text of the applicable statutory section or the actual charge the court had indicated would be given to the jury. Appellant asserts that such denial impeded counsel's ability to emphasize these points of law which were critical to the defense.

As authority for this proposition appellant relies on United States v. Sawyer (C.A.D.C.1971), 443 F.2d 712, wherein the court stated that although a trial court has broad discretion in controlling the scope of argument, that "discretion is abused, however, if the court prevents defense counsel from making a point essential to the defense." Id. at 713. Hence, if appellant's counsel had been totally barred from arguing a point essential to the defense, such denial would constitute an abuse of discretion. In the instant case, however, defense counsel was not totally barred from arguing any essential points. A review of the record indicates that while the trial judge did not allow defense counsel to read directly from the statute or the jury charge, counsel was permitted to comment on and summarize both. ³ As in Sawyer, supra, counsel was able to make and emphasize the critical points in a form that the trial court found acceptable. Accordingly, we find no prejudice and appellant's second proposition of law is overruled.

Appellant asserts in his third proposition of law that the trial court erred in allowing the prosecutor to argue, in essence, that appellant would not have been indicted by the grand jury if the exemptions in R.C. 2921.42(C) ⁴ were applicable and that any argument concerning these exemptions had already been decided against the defendant. The portion of the state's closing argument in dispute included the following:

"What else could you possibly want here? He knew that he had taken an oath. He knew that he had a trust. He knew the money wasn't his to do with whatever he pleased. He went ahead, however, and put himself in a position where he was going to take it anyway.

"You've heard about certain exemptions to the statute. We wouldn't be here if there had been an arm's length transaction--

"MR. WILLIS: Objection.

"THE COURT: Overruled.

"MR. TERRY: If everybody knew who they were dealing with or what they were dealing with and if there had been a properly made motion or resolution and Mr. Pinkney had not voted on it, or if it could be shown that the only insurance company in the whole wide world or at least in this country or service area where you could get the policy of insurance to cover the members of a Port Authority for whatever mistakes they might make as Port Authority members could only be obtained by the Pinkney-Perry Insurance Agency."

Upon review of the above-cited passage, we are hard-pressed to...