State v. Williams

• Decision Date: 16 September 1969
• Citation: 250 N.E.2d 907,19 Ohio App.2d 234
• Parties: , 48 O.O.2d 364 The STATE of Ohio, Appellee, v. WILLIAMS, Appellant.
• Court: Ohio Court of Appeals

Page 234

19 Ohio App.2d 234

250 N.E.2d 907, 48 O.O.2d 364

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

Court of Appeals of Ohio, Eleventh District, Trumbull County.

Sept. 16, 1969.

Syllabus by the Court

1. As a matter of policy, a trial court should avoid appointing inexperienced attorneys to represent defendants indicted for serious offenses such as armed robbery. However, where, upon appeal from a judgment of conviction, the defendant contends that his constitutional right to be represented by competent counsel was denied him, the number of attorneys available for such an appointment must be taken into consideration by the reviewing court.

2. There is a presumption that a court-appointed counsel for an indigent defendant is competent and acts properly.

3. The adequacy of court-appointed counsel for an indigent defendant may not be measured merely by the results obtained. The fact of conviction does not militate against the presumption of competency which attends every such appointment.

4. A defendant in a criminal case is entitled to a fair trial, not a perfect one.

5. A hearing on a motion to suppress evidence at which testimony of a witness is received, whether held before or during a trial of a case, is such a part of the trial as to require the presence of the accused.

6. Although defendant was entitled to be present at a hearing on his motion to suppress evidence, his attroney can waive defendant's right to be present when the witnesses who testified at the hearing on the motion to suppress the evidence also testified substantially the same at the trial of the case in the presence of defendant, so that defendant had the opportunity to defend against the introduction of the challenged evidence which was properly admitted into evidence in the case.

7. It is presumed that a public official properly and regularly discharges his duties, or performs acts required by law, in accordance with the law and the authority conferred on him, and that he will not do any act contrary to his official duty. The presumption of regularity applies to police and the validity of warrants.

8. Pennsylvania's law on search warrants is of commonlaw origin.

9. Sworn oral testimony before a magistrate can be used to demonstrate facts relied upon by a magistrate to support the finding of probable cause in issuing a search warrant in Pennsylvania.

10. The question of probable cause upon which a search warrant may issue in Pennsylvania is determined by the Judge or Magistrate who issues the warrant.

11. There is a presumption in favor of the regularity of the issuance of a search warrant.

12. A ploice officer, lawfully in a house to arrest a particular person, may seize the evidence of a crime which he sees.

David M. Griffith, Pros. Atty., for appellee.

Eugene B. Fox, Youngstown, for appellant.

LYNCH, Presiding Judge.

This appeal is on questions of law by defendant, appellant herein, from his conviction by a jury for armed robbery and from his sentence of from ten to twenty-five years to the Ohio Pentitentiary.

On January 27, 1967, about 1:30 p. m., a young man with a gun robbed Mrs. Bertie Wagner, wife of the manager of the Lawson Dairy Store in Hubbard, Ohio, of $401 in cash, four cartons of king-size Kool cigarettes and two cartons of Marlboro cigarettes.

Chief Greer of the Hubbard police department learned that an automobile was parked near the Lawson store before the robbery, bearing Pennsylvania license plates No. 1A9114 and with one or two suspicious looking men sitting in it. Chief Greer then ascertained, through the Pennsylvania State Police, that this license number was registered to Edward Mattis, 114 West Eighth St., Homestead, Pennsylvania.

Chief Greer then called Chief James Armstrong of the Homestead, Pennsylvania, police department and informed him as to the robbery and the presence of Edward Mattis' automobile near the scene of the crime.

Chief Armstrong was aware that defendant usually drove this car, which belonged to his uncle, Edward Mattis. Therefore, he obtained a warrant and ordered two patrolmen to arrest defendant.

Defendant resided with his grandmother and his uncle, Edward Mattis. The patrolmen arrested him at his home and observed a partially opened carton of Kool cigarettes at the Mattis residence. After defendant was brought to the Homestead police station, a search warrant was obtained and the two patrolmen returned and seized the carton of Kool cigarettes.

Defendant filed a motion to suppress as evidence the carton of Kool cigarettes. This motion was heard by the trial court on May 19, 1967, and on June 16, 1967, and the motion was overruled. It was admitted into evidence at the trial of the case as state's exhibit No. 1.

Defendant's fifth, sixth and seventh assignments of error contend that the defendant was denied a fair trial and due process of law because of the trial court's failure to exercise due regard for defendant's constitutional right to be represented by counsel by appointing inexperienced counsel.

Defendant contends that the counsel which the trial court appointed to represent him had been admitted to practice less than three months before this crime was committed, and that this representation of the defendant constituted counsel's first jury trial. However, there is nothing in the record to substantiate this.

As a matter of policy, we feel that a trial court should avoid appointing inexperienced attorneys to represent defendants indicted for serious offenses such as armed robbery. We recognize that the trial court at times is limited in its choice of appointment by the number of attorneys available for such an appointment. This ordinarily should not be a problem in as populous a county as Trumbull County. However, there is nothing in the record to indicate the circumstances under which the trial court appointed counsel for defendant for his trial, and there is a presumption in favor of the validity of the decision of the trial court. 3 Ohio Jurisprudence 2d 666, Appellate Review, Section 715.

There is also a presumption that a court-appointed counsel for an indigent defendant is competent and acts properly. The adequacy of court-appointed counsel for an indigent defendant may not be measured merely by the results obtained. The fact of conviction does not militate against the presumption of competency which attends every such appointment. Kilgore v. United States, 323 F.2d 369, certiorari denied, 376 U.S. 922, 84 S.Ct. 681, 11 L.Ed.2d 617; 24 A C.J.S. Criminal Law § 1850, p. 631.

Defendant points out that the appointment of his trial counsel was on September 20, 1967, which was the first day of defendant's trial. However, the record reveals that defendant's trial counsel filed a motion to suppress evidence on behalf of defendant on May 10, 1967, and actively represented defendant at two separate hearings on this motion on May 19, 1967, and June 16, 1967. We therefore hold that defendant's trial counsel was actively representing defendant a reasonably sufficient time before the trial of the case to adequately prepare for the trial.

Defendant states that his trial defense counsel failed to pursue the fact that the affidavit for a search warrant totally failed to set forth facts to show probable cause. The difference between Pennsylvania and Ohio law on affidavits for search warrants is discussed under assignments of error Nos. three and four. The record reveals that defendant's defense counsel did ascertain the facts which were the basis of the affidavit for the search warrant. When defendant's defense counsel attempted to pursue this line of questioning, the trial court sustained the objection of the prosecuting attorney on the basis that the validity of the search warrant could only be questioned on a motion to quash the search warrant rather than on a motion to suppress the evidence. In our opinion, the trial court did not have jurisdiction to quash the search warrant issued by a Pennsylvania justice of the peace. Therefore, we conclude that defendant's defense counsel protected his legal rights on this issue.

Defendant's counsel on appeal is an experienced and capable attorney in the field of criminal law, and to support the contention that defendant was denied effective representation by his court-appointed counsel, he criticized the performance of defendant's trial counsel at about every stage of the trial. However, most of the criticism was general, such as: 'There was almost total indifference shown in the questioning of the jury panel'; 'the cross-examination of prosecution witnesses consisted substantially of leading them through a repeat performance of their testimony on direct examination'; and 'the prosecution was allowed to present an incredible amount of hearsay evidence, inferences and prejudicial conclusions, without any foundation whatever.' However, counsel did cite one specific example, which was that at the trial defense counsel brought out, in cross-examination, that the victim, Mrs. Wagner, had identified the defendant in a line-up only a few days after the robbery. We agree with defendant that ordinarily defense counsel should not do this. However, in this case, defense counsel was confronted with the fact that Mrs. Wagner, the first witness, positively identified Williams as the person who robbed her, and he had the problem of what to do about this evidence. He brought up the fact of Mrs. Wagner's identifying defendant in a line-up a few days after the robbery apparently for the purpose of establishing to the jury that Mrs. Wagner had seen defendant at the line-up. We feel that under the circumstances this was a matter of judgment upon which even experienced criminal lawyers could idsagree.

Defendant is critical of the fact that the entire trial lasted less than one day. We have no doubt that if defendant's present counsel had represented him at the trial, the trial would have lasted longer. However, we do not...