State v. Senzarino

• Decision Date: 10 March 1967
• Docket Number: 8583,Nos. 8564,s. 8564
• Parties: , 39 O.O.2d 383 The STATE of Ohio, Plaintiff, v. Dominic P. SENZARINO, Jr., Clyde C. Perod et al., Defendants.
• Court: Ohio Court of Common Pleas

Page 241

10 Ohio Misc. 241

224 N.E.2d 389, 39 O.O.2d 383

The STATE of Ohio, Plaintiff, v. Dominic P. SENZARINO, Jr., Clyde C. Perod et al., Defendants.

Nos. 8564, 8583.

Court of Common Pleas of Ohio, Ashtabula County.

March 10, 1967.

Charles M. Diamond and Francis A. Varckette, Asst. Pros. Attys., for plaintiff.

Phillip J. Cantagallo, John E. Olsen, Ashtabula, for defendants.

OPINION ON MOTIONS FOR NEW TRIAL

PONTIUS, Judge.

The defendants Dominic P. Senzarino and Clyde C. Perod were found guilty by a jury of two offenses committed August 21, 1966: 1) attempting to force entrance into a safe, and 2) daytime breaking and entering. They were indicted jointly with one Frank Albert Scungio and one Peter A. Costello, Jr., who were granted severed trials.

The motion of each defendant herein for a new trial, supported by affidavits of counsel, was argued and submitted March 7, 1967. Each motion contains nineteen identical, separate grounds for a new trial. Of these, only five were urged in oral argument, and no memorandum was tendered, either before or after argument in support of the contentions of the defendants. Briefly stated, the five points argued were as follows:

1. Prejudicial error in attaching an alias as to each defendant named in the indictment.

2. Misconduct of the Prosecuting Attorney in making statements made in the opening statement when the evidence available fell short of proof thereof.

3. Error in the admission in evidence of certain State's exhibits.

4. Error in charging on aider and abettor.

5. Error in refusing to include in the general charge the subject matter of a special request to charge before argument submitted by the defense, dealing generally with the subject matter as to how the jury should treat the fact that the defendant Senzarino did not testify in his own behalf.

1. The oral argument of the defense was framed as if evidence of the use of various aliases by the defendants was offered by the State and actually received in evidence. Such is not the fact. There was no attempt by the State to prove that either defendant used some name other than his own as a means to hide his identity. The subject matter of which the defense here complains is the naming of the defendant Senzarino in the indictment also as 'Senzario' and of the defendant Perod also as 'Perrotta'. The only plea entered by either defendant was 'not guilty'.

In the opinion of this Court, this complaint falls clearly within the provisions of R.C. 2941.56, dealing with misnomer; and, at most, was the proper subject matter of a plea in abatement. No such plea was made. If it be conceded that this pleading in the indictment was an irregularity, certainly it is covered by R.C. 2945.83 and is not a ground for the granting of a new trial. There was no evidence of a claimed use of an alias by either defendant. By such pleading, each defendant was neither prejudiced nor prevented from having a fair trial.

2. The claim of the defense is that because the prosecution in its opening statement stated in substance that the proof would show that the defendant Scungio registered at the Dukane Motel prior to the committing of this offense, but the proof offered showed that the defendant Senzarino and not Scungio, in fact, so registered but under the name of 'Granado' is an indication of bad faith on the part of the prosecution at the time the statement was made, constitutes misconduct of counsel and warrants the granting of a new trial.

In the mind of this Court, this arguments is totally unsound. The rule is that failure to prove some fact claimed by the prosecution does not warrant a reversal on the ground that the defendant was denied a fair trial, unless the statement appears to have been made in bad faith and also was of such a nature in and of itself as to be manifestly prejudicial.

The statement complained of here was with reference to a circumstance which would place the defendant Senzarino in the vicinity of the crime a short time prior to its commission. There was other evidence admitted to show this same circumstance. It is most difficult to conceive how the statement of the prosecution in its opening in this respect is in any way whatsoever prejudicial to the defendant simply because the prosecution was unable to prove the statement during trial. The proof did show the association of Scungio and Senzarino, who in fact did so register.

The rule above set forth is supported by practically all of the authorities dealing with the question. The Court sees no merit in the defense contention on this point. Reference is hereby made to Wray v. State, 5 Ohio Cir.Ct.R., N.S., 437; Bruno v. State, 15 Ohio Law Abst. 693; Makley v. State, 49 Ohio App. 359, 197 N.E. 339; Rutledge v. State, 41 Ariz. 48, 15 P.2d 255; Scott v. State, 59 Okl.Cr. 231, 57 P.2d 639; 15 OJ 2d 699; 53 Am.Jur. 86; and 28 A.L.R.2d 972.

Exhibits 2, 3, 35, and 36 were admitted in evidence over objection. These items, together with Exhibit 34, a pair of brown gloves, admitted in evidence without objection, were found by the Chief of Police in a pile or lying together behind a tree approximately 300 feet south of the building where the crime was committed. Three separate State witnesses positively identified the defendant Senzarino as being one of four men they saw come out of the building and run south. Other persons, not identified, observed them drop some items behind this tree and turn and run east. These persons pointed out the items in question to the Chief of Police a very short time later.

The testimony with respect to what these unidentified persons said they had seen was offered through the Chief of Police and admitted without objection. After the admission of this testimony, the defense moved to strike out what these persons had told the Chief of Police. Having waited to see what answer the Chief of Police might give relative to conversations he had with these persons at this spot, and the question obviously calling for hearsay when put to the witness, the Court ruled the objection was waived and overruled the motion to strike this testimony of the Chief of Police.

The three witnesses who saw the four men leave the building not only positively identified the defendant Senzarino as one of them but also testified that two others were carrying colored handkerchiefs or bandanas and holding them up to their faces, and the fourth one was definitely wearing brown gloves. In the opinion of the Court, this testimony sufficiently connected these exhibits to the defendants so as to make the items admissible in evidence.

4. Claim is made that the Court erred in charging on the issue of an aider and abettor, and this for the reason that as to the defendant Perod in particular this was error because: 1) the defendants were charged in the indictment as principals, and 2) that there was no evidence to connect Perod to the crime before its commission.

Point 1 above mentioned, in the Court's opinion, is totally without merit in view of the provisions of R.C. 1.17, 'any person who aids, abets, or procures another to commit an offense may be prosecuted and punished as if he were the principal offender.' Under this statute it long and consistently has been held that charging one in an indictment as if he were a principal will sustain proof that he acted as an aider and abettor of a principal. The form of the charge in the indictment makes absolutely no difference. The cases in point on this question are so numerous and so one-sided as to require no citation of authority.

Point 2 above mentioned, in the Court's opinion, is not sustained by the facts as shown by the evidence. There was testimony that Perod and Senzarino were together at the motel at the time of registering, that Perod left the motel with the others and drove away in a car, that he was seen with Senzarino and a third man peering from and running from a woods under suspicious circumstances toward the motel shortly after the commission of the crime, that he was back in the motel with Scungio and Senzarino when he and Scungio were arrested, although Senzarino at that time made his escape. True, he was not identified as one of the four men seen coming from the building, but the above related evidence and other testimony not here recounted, was deemed sufficient to link the defendant Perod to the commission of the crimes, at least as an aider and an abettor, if not as a principal.

5. At the close of the evidence, defendant in writing requested the Court to charge the Jury as follows:

'The failure of any defendant to take the witness stand and testify in his own behalf does not create any presumption against him; the jury is charged that it must not permit that fact to weigh in the slightest degree against any such defendant, nor should this fact enter into the discussions or deliberations of the jury in any manner.'

The Court refused to give any special charge before argument and refused to include the requested charge or the substance of it in the general charge which went to the Jury in writing, at the request of the defense; but the Court did charge as follows:

'On the trial of a criminal cause, a person charged with an offense may at his own request be a witness, but not otherwise. He cannot be compelled to testify. If a defendant testifies, his testimony is to be weighed by the same rules that apply to other witnesses, as heretofore instructed. You may not reject his testimony if you believe it to be true simply because he is a defendant.'

The defense contends that such requested charge is commanded by the Fifth Amendment to the United States Constitution under the holdings of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, and Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257, the same being the only authorities referred to by counsel in argument on the motions.

The Fifth Amendment provides:

'No person shall be held to answer * * * (etc.);...