State v. Wiles

Decision Date24 April 1991
Docket NumberNo. 88-1265,88-1265
Citation59 Ohio St.3d 71,571 N.E.2d 97
PartiesThe STATE of Ohio, Appellee, v. WILES, Appellant.
CourtOhio Supreme Court

David W. Norris, Pros. Atty., and Robert A. Durst, Ravenna, for appellee.

Randall M. Dana, Ohio Public Defender, S. Adele Shank and Nathan A. Ray, Columbus, for appellant.

PER CURIAM.

I

In his second proposition of law, appellant argues in essence that the trial court erred by denying his motion to sever Count Three of the indictment (i.e., the 1983 burglary charge) prior to trial. It is his essential contention that joinder of the 1983 burglary charge with the 1985 offenses was improper.

At the outset it must be observed that "[t]he law favors joining multiple offenses in a single trial under Crim.R. 8(A) if the offenses charged 'are of the same or similar character.' " See State v. Lott (1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293, 298, quoting State v. Torres (1981), 66 Ohio St.2d 340, 343, 20 O.O.3d 313, 314-315, 421 N.E.2d 1288, 1290. Where a defendant claims that joinder was improper he must affirmatively show prejudice. State v. Roberts (1980), 62 Ohio St.2d 170, 175, 16 O.O.3d 201, 204, 405 N.E.2d 247, 251.

Appellant maintains that there was insufficient evidence to support a conviction on Count Three of the indictment--a claim borne out by the subsequent dismissal of the charge by the three-judge panel at the conclusion of the state's case. It is appellant's further contention that the prosecution was aware of such deficiencies but employed Count Three as a vehicle for presenting to the court otherwise inadmissible evidence concerning the 1983 burglary.

In order to negate the claim that such joinder resulted in prejudice to appellant, the prosecution may demonstrate either (1) that evidence relative to the count subject to joinder would have been admissible in the trial of the remaining counts under the "other acts" portion of Evid.R. 404(B), or (2) that, irrespective of the admissibility of such evidence under Evid.R. 404(B), the evidence as to each count is "simple and direct." See State v. Lott, supra, at 163, 555 N.E.2d at 298. The latter test focuses on whether the trier of fact is likely to consider "evidence of one [offense] as corroborative of the other * * *." Dunaway v. United States (C.A.D.C.1953), 205 F.2d 23, 27.

The evidence presented in the case sub judice clearly supports the conclusion that evidence relative to the 1983 burglary played no role in appellant's convictions on the 1985 offenses. It was undisputed that appellant burglarized the Klima home and killed Mark Klima in 1985. Instead, the defense challenged the state's contention that such acts were purposeful. Thus, any evidence relative to the 1983 burglary lacked any nexus with the critical issue in dispute relative to Counts One and Two.

Similarly, the particular evidence adduced at trial was separate and distinct regarding incidents two years apart. The state, in seeking to obtain a conviction on the 1983 burglary charge, relied on the testimony of two former associates of appellant, Lewis Ripley and Christopher Beans. These individuals testified as to statements made by appellant regarding events in 1982 and 1983. In contrast, the evidence adduced to support convictions for the 1985 burglary and homicide was composed, in large part, of confessions given to police by appellant wherein he denied the commission of any prior burglaries.

The conclusion that evidence relative to the 1983 burglary played no role in appellant's conviction for the 1985 crimes is underscored by the disposition made of Count Three by the three-judge panel. Inasmuch as the court dismissed Count Three while convicting on the remaining counts, such disposition "demonstrated its ability to segregate the proof on each charge." State v. Brooks (1989), 44 Ohio St.3d 185, 195, 542 N.E.2d 636, 645.

Appellant's second proposition of law is overruled.

II

In his third proposition of law, appellant further contends that, while the 1983 burglary charge was dismissed by the three-judge panel, evidence relevant thereto was improperly considered in the sentencing determination. This argument must be rejected.

In discounting the mitigating effect of appellant's youth (twenty-two years of age), the trial panel observed from the bench as follows:

" * * * [T]he defendant, while relatively youthful, had been previously convicted of aggravated burglary, refused drug and alcohol treatment, displayed defiance of authority and participated in other criminal activity for which he was not apprehended or convicted."

While it is certainly arguable that the last reference encompasses the 1983 burglary charge which was subsequently dismissed by the court, consideration of evidence relating to that charge at the sentencing stage does not constitute reversible error. In United States v. Donelson (C.A.D.C.1982), 695 F.2d 583, the federal appellate court observed as follows:

" * * * It is well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted. * * * " Id. at 590. See, also, United States v. Sweig (C.A.2, 1972), 454 F.2d 181, 184; United States v. Bernard (C.A.4, 1985), 757 F.2d 1439, 1444; United States v. Funt (C.A.11, 1990), 896 F.2d 1288, 1300; State v. Kelly (1979), 122 Ariz. 495, 498-499, 595 P.2d 1040, 1043-1044; State v. Huey (1986), 199 Conn. 121, 126, 505 A.2d 1242, 1245; State v. Frost (Minn.1981), 306 N.W.2d 803, 805-806; 3 LaFave & Israel, Criminal Procedure (1984) 119, Section 25.1; Campbell, Law of Sentencing (1978) 286-287, Section 90.

Appellant's third proposition of law is overruled.

III

In his fourth proposition of law, appellant contends that the trial court abused its discretion in permitting Keith Jirousek to testify despite the failure of the prosecution to disclose the identity of this witness in response to the discovery demand of the defense prior to the December 30, 1985 deadline prescribed by the court for completion of discovery.

Jirousek was a corrections officer for the Portage County Sheriff's Department. Over objection, he was permitted to testify regarding statements made by appellant during his period of confinement in the jail. These statements were made on December 10, 1985.

There is nothing in the record to indicate that the office of the prosecuting attorney was aware of these statements at the time of the pretrial conference (December 30, 1985) such as to suggest a willful violation of Crim.R. 16(B)(1)(e) and (D). Nevertheless, Jirousek was aware of these statements at the time they were made. Inasmuch as "[t]he police are a part of the state and its prosecutional machinery," State v. Tomblin (1981), 3 Ohio App.3d 17, 18, 3 OBR 18, 20, 443 N.E.2d 529, 531, such knowledge on the part of a law enforcement officer must be imputed to the state. State v. Sandlin (1983), 11 Ohio App.3d 84, 89, 11 OBR 136, 141, 463 N.E.2d 85, 90-91. Accordingly, the prosecuting attorney was not in compliance with the December 30 discovery order.

However, Crim.R. 16(E)(3) vests in the trial court the discretion to determine the appropriate response for failure of a party to disclose material subject to a valid discovery request. In State v. Parson (1983), 6 Ohio St.3d 442, 445, 6 OBR 485, 487, 453 N.E.2d 689, 691, this court observed that, under such circumstances, "the trial court is vested with a certain amount of discretion in determining the sanction to be imposed for a party's nondisclosure of discoverable material. The court is not bound to exclude such material at trial although it may do so at its option." Reversible error exists only where the exercise of such authority by the trial court constitutes an abuse of discretion. State v. Parson, supra, at 445, 6 OBR at 487-488, 453 N.E.2d at 691; State v. Apanovitch (1987), 33 Ohio St.3d 19, 26, 514 N.E.2d 394, 402.

In Parson, supra, a tripartite test was set forth to determine whether a trial court abused its discretion in admitting undisclosed discoverable evidence.

The syllabus to Parson provides as follows:

"Where, in a criminal trial, the prosecution fails to comply with Crim.R. 16(B)(1)(a)(ii) by informing the accused of an oral statement made by a co-defendant to a law enforcement officer, and the record does not demonstrate (1) that the prosecution's failure to disclose was a willful violation of Crim.R. 16, (2) that foreknowledge of the statement would have benefited the accused in the preparation of his defense, or (3) that the accused was prejudiced by admission of the statement, the trial court does not abuse its discretion under Crim.R. 16(E)(3) by permitting such evidence to be admitted." See, also, State v. Heinish (1990), 50 Ohio St.3d 231, 553 N.E.2d 1026.

From a review of the record of the instant case, it is evident that appellant has failed to demonstrate that the violation of Crim.R. 16 by the state constitutes reversible error.

While the knowledge of Jirousek of the statements made by appellant is imputable to the prosecution for purposes of determining whether the rule was violated, such imputed knowledge is not sufficient to constitute a willful violation thereof. Instead, the acts of the prosecution itself must be evaluated. Appellant contends that willful violation of the rule on the part of the prosecuting attorney may be inferred from the statements of the chief assistant prosecutor who, appellant claims, admitted at trial that such nondisclosure was for "tactical considerations * * *." However, a close reading of the trial transcript reveals that the prosecution was referring to the decision to employ Jirousek as a witness for the state, not to a conscious attempt on its part to withhold discoverable material.

Moreover, the chief assistant prosecutor stated at trial that he had disclosed all information about which he was aware at the time of the pretrial conference....

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