State v. Warren

• Decision Date: 25 May 1990
• Docket Number: No. L-89-044,L-89-044
• Citation: 588 N.E.2d 905,67 Ohio App.3d 789
• Parties: The STATE of Ohio, Appellee, v. WARREN, Appellant.
• Court: Ohio Court of Appeals

Page 789

67 Ohio App.3d 789

588 N.E.2d 905

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

No. L-89-044.

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided May 25, 1990.

Syllabus by the Court

Pursuant to Evid.R. 611, a party may ask leading questions of a witness called by that party when the party can demonstrate that the witness is hostile or is in some manner identified with the adverse party. However, when a party wishes to ask leading questions of its own witness for the purpose of impeaching that witness with prior inconsistent statements Evid.R. 607 is invoked, and the party may not proceed with the questions absent a showing of surprise and affirmative damage.

Anthony G. Pizza, Pros. Atty., and John J. Weglian, Toledo, for appellee.

Douglas A. Wilkins, Sylvania, for appellant.

HANDWORK, Presiding Judge.

Appellant, Charles Marquis Warren, brings this appeal from his conviction and sentencing in the Lucas County Court of Common Pleas on charges of abduction and felonious assault.

In October 1988, appellant was indicted by the Lucas County Grand Jury on one count of abduction in violation of R.C. 2905.02, one count of felonious assault in violation of R.C. 2903.11(A)(1), two counts of kidnapping in violation of R.C. 2905.01(A), and one count of compelling prostitution in violation of R.C. 2907.21. Specifications were added to all five counts.

On February 1, 1989, appellant's trial in the Lucas County Court of Common Pleas commenced. A jury was selected, and counsel presented opening statements. Court was adjourned at the end of the statements and was reconvened the next morning. Prior to the return of the jury to the courtroom, appellant's attorney presented a motion to the trial court, requesting a continuance for new counsel and a different judge. Appellant personally addressed the court, explaining that he felt uneasy with his current counsel because his current counsel had advised him to accept a plea bargain, even though appellant continued to contend he was innocent. Appellant believed that since his counsel was advising him to plead guilty and was indicating appellant could lose his case at trial, appellant's counsel was not capable of properly representing appellant. Appellant's counsel confirmed to the court that he had recommended that appellant accept a plea bargain. He denied stating that appellant would lose at trial, but confirmed he had informed appellant there was a good possibility of losing at trial. He further stated, "Whatever the court's decision here, I will go forward with my best efforts and my sole interest is Charles Warren's best interests."

Appellant also requested a new judge because he believed the current judge was familiar with one of the prosecution witnesses. The judge confirmed he did know of the witness, but indicated he would not know her if she entered the courtroom. The court then denied appellant's motion and ordered the trial to proceed.

Appellee presented seven witnesses who testified about events which occurred on August 1, 1988, and on October 16 and 17, 1988. Three of the witnesses were a grandmother, Clyde Bond, her daughter, June Boyd, and her granddaughter, Charlotte Boyd. The remaining four witnesses were Toledo police officers. Clyde's testimony related to the events which occurred on August 1, 1988, and which led to appellant's indictment on charges of felonious assault and abduction. Her version of the events which occurred on that date differed markedly from Charlotte's version. Clyde testified that she opened the door to her home at approximately 7:15 in the morning on August 1, 1988. Appellant was standing on her porch, holding her newspaper. He identified himself and asked for Clyde's granddaughter, Charlotte. Clyde replied that Charlotte was still asleep, whereupon, according to Clyde, appellant pushed his way into her home, striking her in the left eye, and knocking her to the floor, where she fell on an electric fan. Clyde then testified that appellant forcibly removed Charlotte from Clyde's home, while Charlotte was saying, "Let me go."

Clyde testified that when she was knocked to the floor, she hit her head on the wall, and was temporarily unconscious. She also testified that when she fell on the electric fan, one arm received a cut. Upon cross-examination, appellant's counsel was able to show that the medical records from the hospital where Clyde sought treatment following this incident contained no indication that Clyde had received a cut to either arm, or had been given stitches for the cut as Clyde testified on direct examination. Cross-examination also revealed that there was nothing in the record to substantiate Clyde's testimony that following the incident she had suffered headaches, difficulty with her vision and watering eyes.

Charlotte was the second witness called by the prosecution. She testified that on the morning of August 1, 1988, appellant knocked on the door of Clyde's home, Clyde answered the door and allowed appellant into the home. Charlotte testified that she had lived with appellant, but that she had taken her daughter and gone to stay at her grandmother's home because she was angry at appellant for seeing another woman. Charlotte testified that when appellant entered Clyde's home, appellant and Charlotte began to argue. Clyde then tried to break up the fight. Charlotte went into the living room, picked up a ball and threw it at appellant. Appellant ducked and the ball hit Clyde in the left eye. Charlotte testified that while Clyde did grab her left eye, Clyde did not fall down. Charlotte testified that she willingly left Clyde's home with appellant and went to a hotel near I-280, where she and appellant made up. Charlotte then testified about events which occurred on October 16 and 17, 1988, all of which related to three counts which were dismissed by the trial court in response to a motion for a directed verdict from appellant's counsel. Following Charlotte's testimony regarding the events of August 1, 1988, and October 16 and 17, 1988, the following exchange between Charlotte and the state occurred:

"Q. Charlotte, what is your marital status?

"A. Single.

"Q. What are your marital intentions?

"A. I'm getting married this afternoon."

Appellee then asked the court for permission to ask leading questions of Charlotte, and the jury was excused so that the court could entertain the motion. Appellant's counsel objected, arguing that the prosecution did not have any evidence to show surprise, a requisite for cross-examination of one's own witness with prior inconsistent statements pursuant to Evid.R. 607. Appellee countered, arguing that:

"Here we have a witness who began at least as a victim of the criminal offense, reported that to the police officers on a couple of occasions and at this point has become aligned to the defendant. Her testimony today indicates that she wishes to marry the defendant and set a wedding date of this afternoon."

Appellee asked the court to declare Charlotte a hostile witness or a witness identified with an adverse party pursuant to Evid.R. 611(C) and to permit appellee to ask Charlotte leading questions pursuant to Evid.R. 611. Appellee further stated:

" * * * And I would ask the court to utilize its discretion in allowing me to lead the witness. I'm not attempting to impeach at this point."

The court ruled that Charlotte was identified with an adverse party and allowed appellee to use leading questions over objections by appellant's counsel. After ruling on the motion, a short recess was taken, and the jury was returned to the courtroom. Appellee began asking leading questions of Charlotte, eliciting the information that she planned to marry appellant. Appellee then began questioning Charlotte about prior inconsistent statements she had made to a Toledo police officer. Appellant's counsel requested a limiting instruction, which the court gave. Specifically, the court stated:

"Ladies and gentlemen of the jury, some of the questions and answers that will be elicited during this phase of the state's direct examination of this witness go to the credibility, and the answers and questions are not material to any other issue in this case other than to test the credibility of this witness, and you should not consider the answers for any other purpose other than testing the credibility."

Appellee then extensively questioned Charlotte about prior inconsistent statements she had made to members of the Toledo police force and to her mother. The prior inconsistent statements contained allegations that appellant had forced Charlotte to commit acts of prostitution, that appellant had beaten Clyde, that appellant had forcibly removed Charlotte from Clyde's home, that appellant had kept Charlotte and her daughter Paige in his brother's home against their will, and that Charlotte and appellant had smoked crack cocaine together.

The next witness called by appellee to testify about events which occurred on August 1, 1988, was Officer Hubert Martin. Officer Martin responded to the call placed by Clyde to the Toledo Police Department on August 1, 1988. Officer Martin testified that he arrived at Clyde's home approximately three to four minutes after eight in the morning. Officer Martin testified that although Clyde indicated she was injured, " * * * we noticed no signs of injury." The officer searched the surrounding area and, when he did not find appellant, returned to Clyde's home. Clyde indicated that she had arranged to go to the hospital, and the officers left. In his report, Officer Martin recorded an abduction and an assault. When questioned on cross-examination about why he had characterized the incident as assault, rather than felonious assault, Officer Martin replied, "It didn't appear that she had serious injury."

The next witness to testify regarding the events of August 1, 1988, was June Boyd. June testified that she had been out of town and was...