The City of Massillon v. Mark A. Kohler
| Decision Date | 21 October 1981 |
| Docket Number | 81-LW-2380,CA-5644 |
| Parties | THE CITY OF MASSILLON, Plaintiff-Appellee, v. MARK A. KOHLER, Defendant-Appellant. Case |
| Court | Ohio Court of Appeals |
Before Hon. Robert E. Henderson, P. J., Hon. Norman J. Putman, J Hon. William F. McKee, J.
This is an appeal from a judgment of conviction by a jury and the sentence thereon pronounced by the Massillon Municipal Court of a charge of Operating a Motor Vehicle While Under the Influence of Alcohol.
Defendant-Appellant raises the following Assignments of Error:
On November 1, 1980 at approximately 4:25 A.M. Defendant-Appellant was observed operating a 1965 Plymouth automobile on Amherst Road, N.E., Massillon, Ohio by a patrolman of the Massillon Police Department. The patrolman stopped the vehicle that Defendant-Appellant was driving and conducted an investigation which resulted in Defendant-Appellant being charged with a violation of Section 434.01 of the Massillon City Ordinances (Operating a Motor Vehicle While Under the Influence of Alcohol).
A trial was held to a jury which found Defendant-Appellant guilty and the court sentenced Defendant-Appellant to nine days in jail and imposed a fine of $300.00 and costs and suspended his driving privileges for one year.
Defendant-Appellant filed a motion for a new trial on February 25, 1981 which motion was overruled by the trial court without a hearing.
Defendant-Appellant's first Assignment of Error is that the trial court erred in denying Defendant-Appellant's motion for a new trial because of certain information concerning an impanelled juror which indicated his prejudice against the Defendant-Appellant.
It is a long established and a generally accepted doctrine founded upon the wisest reasons of public policy rather than upon any doctrine of estoppel or otherwise that the verdict of a jury may not be impeached by the testimony or affidavits of a member or members of the jury rendering the verdict unless there is evidence aliunde impeaching the verdict. We cite counsel to the long line of cases set forth in 53 Ohio Juris 2d, Section 326. This rule requires that a foundation must first be laid from testimony from other sources tending at least to show the irregularities which are set forth in the affidavit of the juror himself and which testimony makes out a prima facie case. This foundation, however, must consist of knowledge acquired by the court by other means than the affidavits of jurors themselves. However, we find in this case that there was no evidence aliunde impeaching the verdict, that in effect all that we have before us, and all that the trial court had before it, were the affidavits of two jurors, to wit: Bertha Vitak and Francine Warner. The affidavits which are attached as exhibits to the motion for new trial both indicated that the Trial Judge questioned the prospective jurors on voir dire concerning any matters affecting their impartiality on the particular case in question. They go on further to state that a Mr. Timothy Deyton, who was on the jury, was likewise questioned and did not during the voir dire examination respond in any manner to such questions. It is important, however, to note that both of these affidavits state as follows:
While we find that there was no evidence aliunde, impeaching this verdict, we note further that the juror, Mr. Deyton, according to the affidavits of Vitak and Warner did not discuss whether or not the Defendant was guilty or not until the case had been concluded and that he had not made his statement that he was prejudiced against anyone charged with DWI until immediately after the unanimous guilty verdict had been reached. We point this out to indicate that this was not a juror who stated that he had made up his mind prior to a verdict or who made comment that he had a lot of close friends killed by drunk drivers until after the jury had unanimously reached its verdict of guilty.
There being no evidence aliunde which impeached the verdict of this jury, the testimony of the jurors by affidavits was not admissible and the court properly overruled the motion for new trial in this case.
Defendant-Appellant's second Assignment of Error is that the trial court erred in permitting the results of the breathalyzer test to be introduced.
We find from a close reading of the transcript of testimony taken in the trial that, in fact, the prosecution had produced all of the items which are required to be laid as a foundation in order to permit the introduction of the results of a breathalyzer test as evidence. (See Transcript, Pages 48-56). We find specifically that there was asked and answered a question with regard to the specimen that was taken as to whether or not it was analyzed in accordance with methods approved by the Director of Health.
In State v. Sickles, 25 Ohio App. 2d 1, 265 NE 2d 787, the court states:
We find in this case that all of these prerequisites were, in fact, established and that the court was not in error in permitting the introduction of the results of said breathalyzer test.
Defendant-Appellant's third Assignment of Error is that the trial court erred in denying Defendant's motion for a mistrial made during the Prosecutor's closing arguments. From an examination of the transcript which included the closing argument of Prosecutor Cush, we can determine that the Prosecutor did make a number of inappropriate and improper comments during the trial of this case, including those found in his final argument. The trial court dealt with each instance as it arose during the trial and instructed the jury on several occasions to disregard certain questions. Since he was listening throughout the entire trial to the evidence as it was presented and to the arguments of counsel, it was up to the trial court to determine whether or not this jury could fairly and impartially listen and deliberate upon the evidence. A trial court is always in the best position by reason of his presence during the trial to observe the demeanor and the attitude of the attorneys and the reaction of the jury. However, in this case, in Prosecutor's Cush's final argument, commencing at Page 64 of the transcript, we read the following:
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