State v. Abrams

39 Ohio St. 2d 53

• Court: Ohio Supreme Court
• Decided: July 5, 1974
• Docket: No. 73-587
• Status: Published

Opinions

O’Neill,, C. J.

Seven propositions of law are presented by appellant in this appeal. One, relating to appellant’s motion for diminution of the record in the Court of Appeals, is moot as a result of the granting of that motion by the Court of Appeals. Of the other six propositions of law, only one was assigned as error in the Court of Appeals, briefed and considered by that court.

This court is not required to ‘ ‘ consider a claim of error that was not raised in any way in the Court of Appeals and was not considered or decided by that court.” Toledo v. Reasonover (1965), 5 Ohio St. 2d 22, 213 N. E. 2d 179; State v. Lisiewski (1969), 20 Ohio St. 2d 20, 24, 252 N. E. 2d 168, State v. Phillips (1971), 27 Ohio St. 2d 294, 302, 272 N. E. 2d 347. Therefore, this court will consider only that proposition of law which presents an issue assigned as error and considered by the Court of Appeals.

Appellant frames that issue as follows: “A trial judge in a felony trial should not be permitted to have a secret communication with the jury during deliberations in the absence of defendant or his counsel, concerning additional instructions which the jury had requested.”

The record shows, in an affidavit of the trial judge which was filed in the Court of Appeals pursuant to that court’s allowance of appellant’s motion for diminution of the record, that during jury deliberation the trial judge “received a question from the jurors requesting further elaboration of the court’s charge on aiding and abetting. The court, out of the presence of counsel for defendant or the court reporter, advised the jurors that the only further instructions he would give them would be to re-read his original charge on that subject, and the jurors elected not to have the original charge re-read to them.”

Kirk v. State (1846), 14 Ohio 511, and Jones v. State (1875), 26 Ohio St. 208, are cited by appellant in support of his contention that the private communication with the jury by the trial judge constituted denial of a fair trial. The syllabus in Kirk states:

“A court or judge has no right to communicate with the jury respecting the charge of the court, after the jury has retired, except publicly, and in the presence of the accused. To do so is good cause for a new trial.”

The holding in Jones is to the same effect. The court in that ease stated, at page 210:

“It was the right of the plaintiff in error to be present at each and every instruction given to the jury as to the law of the case.” Jones was approved and followed in State v. Grisafulli (1939), 135 Ohio St. 87, 19 N. E. 2d 645.

The foregoing authorities establish that the trial judge in the instant cause erred in communicating with the jury out of the presence of appellant.

The question remains whether that error prejudiced appellant’s right to a fair trial.

As indicated above, the only evidence of record relative to the communication between the trial judge and jury is the judge’s affidavit which was made a part of the record in the Court of Appeals upon appellant’s own motion. That affidavit reveals that the trial judge neither gave the jury any additional instructions nor explained those already given. This being the case, appellant’s right to a fair trial was not prejudiced by the communication between the judge and jury. Cf. United States v. McNair (C. A. D. C. 1970), 433 F. 2d 1132. The error, therefore, was harmless beyond a reasonable doubt, Chapman v. California (1967), 386 U. S. 18, and does not constitute grounds for reversal.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Herbert, Stern and P. Brown, JJ., concur. Corrigan, Celebrezze and W. Brown, JJ., dissent.