State v. Washington

• Decision Date: 10 March 1978
• Citation: 381 N.E.2d 1142,10 O.O.3d 150,56 Ohio App.2d 129
• Parties: , 10 O.O.3d 150 The STATE of Ohio, Appellee, v. WASHINGTON, Appellant.
• Court: Ohio Court of Appeals

Page 129

56 Ohio App.2d 129

381 N.E.2d 1142, 10 O.O.3d 150

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

Court of Appeals of Ohio, Second District, Montgomery County.

March 10, 1978.

Syllabus by the Court

1. Where an indictment issued by a grand jury charges an accused with a theft offense while having a deadly weapon on his person contrary to R.C. 2911.01(A) (1), a subsequent amendment of such indictment by the court which eliminates any reference to the weapon but substitutes words indicating the defendant threatened the use of immediate force contrary to R.C. 2911.02 changes the offense to one unrelated to the original crime charged and is invalid.

2. Notes made by a police officer during an interview with a witness to a crime are not subject to an in camera inspection within the intent and meaning of Crim. R. 16(B)(1)(g).

Lee C. Falke, Pros. Atty., and Herbert Creech, Jr., Dayton, for appellee.

Steven M. Cox, Columbus, for appellant.

SHERER, Presiding Judge.

The appellant was indicted on January 27, 1977, for aggravated robbery which occurred on January 2, 1977, in violation of R. C. 2911.01. This charge was reduced by the court, upon the motion of the prosecutor, to one of robbery, a violation of R. C. 2911.02, and the appellant was convicted by a jury and sentenced therefor.

In this appeal there are six assignments of error. The first assignment is that the trial court erred in overruling his pre-trial motion to suppress "all testimony relating to eyewitness identification of the defendant" because the procedures used were "impermissibly suggestive" in violation of due process.

There was a hearing and, at that hearing, the evidence adduced by the appellant indicated that the desk clerk and bellman at the hotel which was robbed early Sunday morning, January 2, 1977, went to police headquarters on Tuesday to look at photographs but did not find one of the robbers at that time. On January 7, the appellant was arrested and photographs of him were taken. At a lineup on the day of his arrest, the bellman unhesitatingly selected the appellant as the robber from a group of at least four men who did not differ markedly. (The appellant, in his testimony, contradicted the description of the lineup, but there is nothing in the record to indicate that it would have been an abuse of discretion for the trial judge to disbelieve him.) Subsequent thereto, a detective took approximately 15 photos to the desk clerk at the hotel and handed them to her for her perusal. She, unhesitatingly, and without suggestion or coaching, selected the appellant's photo from the group as being that of the robber. Later, at a preliminary hearing, she identified the appellant personally as the robber, again without prompting. Additionally, at an indeterminate time, but before the trial, both the clerk and the bellman were shown photos by a state parole officer from which they independently and self-motivatingly selected the appellant's photo.

No lawyer was present either at the lineup or during the photo selection process. However, the appellant was not formally charged until January 11, 1977, when an affidavit charging him with aggravated robbery was signed by the detective and filed. The evidence at the suppression hearing did not indicate or establish that the photos were selected subsequent to January 11 nor did it indicate that the appellant was represented by counsel prior to his being charged. The appellant was represented by counsel at the preliminary hearing.

The evidence at the suppression hearing did not indicate that the procedures used at the photo selection processes and at the lineup (if the trial court, as was its prerogative, disbelieved the appellant) were in any way suggestive, conducive to irreparable possibilities of a mis-identification, or were instituted or used in any way to establish or to bolster the identification of the appellant as the robber. Quite to the contrary, the evidence was clear that the appellant and likenesses of him were at all times selected unhesitatingly by the two witnesses involved because of their independent recollections of him as the robber from the impressions they received at the time of the robbery under excellent observational circumstances.

Therefore, because it was not established that any of the pre-trial identification procedures were illegal due to procedures which were violative of due process requirements, the trial court was correct in overruling the motion to suppress. Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; State v. Hancock (1976), 48 Ohio St.2d 147, 358 N.E.2d 273; State v. Perryman (1976), 49 Ohio St.2d 14, 358 N.E.2d 1040. The appellant, in his brief, goes beyond the overruling of the pretrial motion to characterize the admission of the identification testimony at the trial as error. The appellant did not object when this testimony was offered and thus waived any possible error in this regard. State v. Lancaster (1971), 25 Ohio St.2d 83, 267 N.E.2d 291. The first assignment of error is overruled.

The second assignment again claims error in overruling the motion to suppress identification testimony, this time on the ground that the lineup described hereinabove was illegal inasmuch as it was conducted in the absence of counsel for the appellant, thus depriving the appellant of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and under Section 10, Article I, of the Ohio Constitution. This contention is incorrect for several reasons.

In the first place, the motion contained no reference to the Sixth Amendment, but was predicated solely on the ground of a violation of due process. In the second place, the lineup was held before the appellant was charged and no attorney was necessary. State v. Sheardon (1972), 31 Ohio St.2d 20, 285 N.E.2d 335. In the third place, Section 10, Article I of the Ohio Constitution, with respect to counsel, confines its application to the trial. Fourthly, the in-court identification was not based upon the lineup, but upon the independent recollection of the witness. Finally, the appellant did not object at the trial to this witness' identification of him as the robber.

The second assignment of error is overruled.

The third assignment claims that the Court erred in refusing to grant the appellant's request for an in camera inspection of alleged prior statements made by the hotel clerk to the police and that this ruling was a denial of due process of law in that appellant's cross-examination rights were abridged. During the cross-examination of the desk clerk, it was developed that one of the police officers questioning the witness on the night of the robbery took some notes as to her description of the robber, but that she made no written or signed statement for the police. Thereupon, the appellant moved for an in camera inspection of the police officer's notes and this motion was overruled.

Criminal Rule 16(B)(1)(g) provides, in part:

"Upon completion of a witness' direct examination at trial, the court on motion of the defendant shall conduct an in camera inspection of the witness' written or recorded statement with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement."

As will be noted, the only statement subject to such a procedure is one which is written or recorded. The word "written" in this context does not refer to notes made by a detective talking to a witness during an investigation. The word "written" refers to a writing made by a witness or by someone else at that witness' direction. The work "recorded" also cannot refer to such notes as it refers only to a mechanical reproduction of a statement by tapes or the like; otherwise, it would be a writing, and a distinction between "written" and "recorded" would not be necessary if the word "recorded" was merely another way of referring to a writing.

This construction that such notes made as a result of an oral interview are not referred to by this subsection of the rule is strengthened by comparing this subsection with subsection (B)(1)(a)(i) and (ii) of this same rule wherein a distinction is made between "relevant written or recorded statements" and "written summaries of any oral statement." The failure to include a reference to summaries of oral statements in the subsection under consideration when such reference was included in the prior subsection in the same rule indicates an intent to exclude oral statements and notes taken of them from the operation of subsection (g). Furthermore, it is even doubtful if the private notes of the detective could be classified as a written summary of an oral statement if such a category had been included in subsection (g).

It is clear to us that such memoranda were not included within the purview of this subsection because it would be incorrect to permit a perusal of notes made by a detective which do not have the imprimatur of the witness. The notes may or may not be accurate and a witness should not be bound by or cross-examined concerning them unless they have received his approval.

It is not evident from the record that the appellant suffered any prejudice from the procedure of the court. There is no constitutional right to discovery. Weatherford v. Bursey (1977), 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30. The witness was thoroughly cross-examined and any and all conceivable discrepancies were thoroughly covered. The third assignment of error is overruled.

The fourth assignment of error is stated as follows:

"The trial court erred when it denied appellant the opportunity to impeach the credibility of the state's leading witness by denying introduction into evidence of a prior inconsistent statement made by said witness."

This assignment of error is based upon the following transactions which occurred...