State v. Slone

• Decision Date: 30 July 1974
• Citation: 40 Ohio App.2d 523,320 N.E.2d 720
• Parties: , 69 O.O.2d 453 The STATE of Ohio, Appellee, v. SLONE, Appellant.
• Court: Ohio Court of Appeals

Page 523

40 Ohio App.2d 523

320 N.E.2d 720, 69 O.O.2d 453

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

Court of Appeals of Ohio, Tenth District, Franklin County.

July 30, 1974.

Syllabus by the Court

The exclusion of testimony, in a criminal trial, of a witness for the defense who entered the courtroom after the court had ordered the separation of witnesses is prejudicial error, where there had been no procurement, connivance, or fraud on the part of the defendant in such situation; the testimony was shown to be completely independent of that which the witness had heard in the trial; the witness was not aware of the order; the prosecutor commented upon the failure of the accused to present corroborative testimony and such failure is due to the courts' exclusion of the testimony of the witness; and the excluded testimony is not only competent, but significantly important in corroborating the main element of the defense.

George C. Smith, Pros. Atty., and Alan C. Travis, Columbus, for appellee.

Gregory L. Ayers, Columbus, for appellant.

HOLMES, Judge.

This matter involves the appeal of a judgment by the Court of Common Pleas of Franklin County on a jury verdict of guilty of murder in the first degree. The defendant, the appellant herein, was charged and indicted by the grand jury for killing one Mohammed Murib on October 1, 1973.

The facts, as developed at the trial, showed that the defendant was at an establishment known as the Derby Bar, in Columbus, Ohio, on the night of October 1, 1973. While sitting at the bar, the defendant noted that Murib had entered and sat down at the opposite end thereof. The facts as developed show that the defendant had known Murib and they had on at least two prior occasions had some altercation with one another.

The first such altercation took place at a certain steak house in Columbus, Ohio, managed by Murib, in which the defendant testified that upon his telling Murib that he was unable to pay for coffee which he had ordered and consumed, Murib threw him to the floor and began hitting him with a cue stick, considerably bruising and battering the defendant. It was further testified to by the defendant that, following such altercation, Murib had filed an assault and battery charge against defendant, but failed to appear to press charges at the time the matter was called in the Municipal Court of Franklin County. The defendant testified that it was his desire at that time, immediately following such altercation to file a like charge of assault and battery against the deceased, but didn't do so because he was told that he would have to await the determination of the charges filed against him.

The additional altercation, which was testified to by the defendant, was one which occurred in the parking lot of the Florentine Restaurant in Columbus, Ohio. Defendant and Murib had had a discussion after seeing each other while the defendant, accompanied by a friend, one Tommy Waters, was driving on West Broad Street in the city of Columbus. Defendant, accompanied by Waters, and Murib, had proceeded to the parking lot in order to discuss their differences, and defendant suggested that the two have a fair fight without the assistance of cue sticks or weapons.

The defendant testified that Murib had at the time of this incident stated that he would like to have peace with the defendant, but could not as long as the defendant was breathing because they would always be fighting. Defendant testified that Murib then made a move toward his back pocket as though to obtain a gun, which the defendant testified he had seen Murib put in his pocket, and the defendant apparently hastened back to his car and hurriedly left the premises along with Tommy Waters.

At the outset of the trial, the court, at the request of the prosecutor, had directed that there be a separation of witnesses, and that anyone who was to testify during the course of the trial was to remove himself from the courtroom.

At the opening of the defense, the defendant's counsel called Tommy Waters to testify as the defendant's first witness, but the prosecutor objected, pointing out to the court that Mr. Waters was in the courtroom earlier that morning in violation of the separation order. The trial court sustained the prosecution's objection to Mr. Waters' testifying and refused to allow him to testify on defendant's behalf. Counsel for defendant then proffered Mr. Waters' testimony into the record upon a voir dire examination of him.

The defense was to the effect that the accused acted in self defense, or that he was motivated by fear, when he stabbed the decedent in the Derby Bar on October 1, 1973. As previously stated, the defendant testified that at the Florentine Restaurant altercation, when he was with Tommy Waters, the decedent threatened him and had stated that he wanted peace but could not have such as long as the defendant was alive. The defendant had called Tommy Waters as a witness to corroborate his testimony concerning the incident at the Florentine Restaurant, and the testimony proffered on voir dire would have supported the statements and testimony made by the defendant, regarding such incident.

Upon the jury verdict of guilty of murder in the first degree, the defendant appeals to this court, assigning a single error, as follows:

'I. The trial court denied defendant-appellant his constitutional rights of compulsory process for obtaining witnesses in his favor and due process when it refused to permit an important defense witness to testify after he accidentally violated an order for the separation of witnesses of which he was unaware where neither defendant-appellant nor his counsel procured, connived or consented to such violation.'

As a general rule, a trial court has the right to exclude witnesses from the courtroom during the trial. 52 Ohio Jurisprudence 2d 551, Trial, Section 68. It is our view that whether or not witnesses are separated is discretionary with the trial court. As stated in 53 American Jurisprudence 46, Trial, Section 31:

'The court has the right, in the trial of a case, to exclude witnesses from the courtroom, but there is no doctrine requiring the witnesses to be excluded in all cases. In a few jurisdictions the exclusion of proposed witnesses from the courtroom during the examination of other witnesses is a matter of right on proper application. But the great majority of jurisdictions follow the early English rule that exclusion, separation, sequestration of witnesses, or 'putting witnesses under the rule,' as the procedure is variously termed, is a matter not of right, but of descretion on the part of the trial court. * * *'

Whether or not the trial court has properly exercised his discretion as to a separation of witnesses must be determined in the light of the facts and circumstances of each case.

However, it is pointed out in the aforestated American Jurisprudence article that a separation of the witnesses in a criminal case is seldom denied when requested, especially in a felony trial. On point, we find the following language in the early case of Laughlin v. State (1849), 18 Ohio 99, at page 103:

'It is certainly a good practice, where a party requests it, to have the witness examined separately. And we think (as in the case before us) ¹ where the witness is called to testify as to the previous statements of a witness in order to corroborate the statement of such witness on the trial it is especially necessary.'

However, Laughlin, as well as the instant case, goes beyond the issue of the discretionary right of the trial court to separate witnesses from the courtroom, but is additionally concerned with the right of the trial court to accept, or to exclude the testimony of any witnesses who may have remained in the courtroom, or have later come into the courtroom, in violation of such separation order. The Supreme Court in Laughlin, holding such to be discretionary with the trial court, upheld the right of the trial court to allow the testimony of a witness who remained in the courtroom contrary to an order of separation.

A very complete discussion of this area of legal consideration is to be found in an annotation entitled 'Effect of Witness' Violation of Order of Exclusion,' 14 A.L.R.3rd 16, 22, wherein it is stated:

'The violation by a witness of an order of exclusion gives rise to various legal questions as to the effect of such disobedience on himself and on the parties. All of the courts agree without dissent that if a witness intentionally disobeys an order of exclusion, he may be punished for contempt of court, and so may the party or counsel calling the witness, if he aided or abetted the violation. This right of the court to punish a person for the intentional violation of an exclusion order is based upon the common-law or statutory power of a court to punish a disobedient witness, or a party or counsel aiding or abetting him, for contempt of court.

'In contrast to this well-settled rule, there is a sharp diversity of opinion relating to the reception of the testimony of a witness who has violated an order directing his exclusion from the courtroom. It is with this question that most of the cases are concerned. All of the American cases agree that a violation of the exclusion order does not result in an automatic disqualification of the witness, but somewhat differing views exist as to the extent of the trial court's power to exclude the testimony of the violating witness. Most of the cases contain the broad statement that it is within the second discretion of the trial court to determine whether the testimony of a violating witness shall be received, and that an appellate court will interfere with the trial court's decision only in the case of an abuse of discretion. Some of the cases, even though referring occasionally to the court's discretionary power, express the view that a mere violation of a separation order does not, of itself, disqualify...