State v. Hannah

374 N.E.2d 1359, 54 Ohio St. 2d 84, 8 Ohio Op. 3d 84, 1978 Ohio LEXIS 579
CourtOhio Supreme Court
DecidedApril 19, 1978
DocketNo. 77-73
StatusPublished
Cited by60 cases

This text of 374 N.E.2d 1359 (State v. Hannah) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hannah, 374 N.E.2d 1359, 54 Ohio St. 2d 84, 8 Ohio Op. 3d 84, 1978 Ohio LEXIS 579 (Ohio 1978).

Opinions

Paul W. Brown, J.

Appellant’s principal complaint addressed to the fairness of the proceedings at trial is that his counsel was frustrated in his attempted cross-examination of the victim-witness which was designed to elicit inconsistencies between that witness’ testimony and Ms pre-trial statements. Appellee’s response to that contention is that the inquiry was not artfully pursued and that defendant’s counsel made no proffer of the expected responses so as to permit this court to determine whether prejudicial error resulted from the trial court’s rulings excluding those responses.

This case is one in which we can agree with some of the assertions of each of the parties. If the state had competently specified its grounds for objection to each of a series of questions posed by defendant’s counsel which had the legitimate purpose recited above, defendant’s counsel might have laid a proper foundation for tlhe questions and restated them in the proper form, thus avoiding frustration. Where, as here, the objections are either general in nature or have as their stated ground therefor that the questions sought hearsay when they in fact did not, the rulings excluding those responses have the effect of severely limiting the defendant’s right of cross-examination, to his prejudice.1 The nature of tMs prejudice is ap[87]*87parent, for if the conviction is to stand it must do so based solely on the validity of the identification and the credibility of the testimony of the victim-witness as perceived by the jury.

Appellee argues that such error by the trial court is not prejudicial to appellant since he has made no proffer claiming that he was attempting to lay a foundation for impeachment of the victim-witness by proof of prior inconsistent statements. Appellant contends that no offer of proof was necessary under Burt v. State (1872), 23 Ohio St. 394. In Burt, supra, we held in paragraph two of the syllabus:

“The rule, that unless the party propounding a question to a witness discloses at the time what he expects to [88]*88prove, the erroneous rejection of the question by the court will not be regarded as prejudicial to the party, does not apply where a witness on cross-examination is asked if he has not made statements inconsistent with his testimony in chief, the purpose and object of the inquiry being sufficiently manifest without such disclosure.”

While not directly on point (since defense counsel here never actually asked the victim-witness whether he had made a statement inconsistent with his testimony), this court’s decision in Burt, supra, is relevant. It is an example of the wide latitude which must be given defense counsel on cross-examination and the necessity of allowing as complete a cross-examination as reasonably possible of witnesses identifying the defendant as the perpetrator of the crime. Any abrogation of the defendant’s right to a full and complete cross-examination of such witnesses is a denial of a fundamental right essential to a fair trial and is prejudicial per se. Pointer v. Texas (1965), 380 U. S. 400; Martin v. Elden (1877), 32 Ohio St. 282; State v. Huffman (1912), 86 Ohio St. 229. Therefore, appellant’s first proposition of law is well taken.

Appellant asserts further that in order for a photograph to be admissible in evidence, it must be identified, authenticated by testimony, and shown to be a fair and accurate portrayal of the subject at the time in question. The state had marked, and eventually introduced in evidence, a photograph of one Nathaniel Hunt. Appellant’s objection to the introduction of the photograph was overruled by the trial court.

A photograph is 'admissible in evidence if it is shown to be an accurate representation of what or whom it purports to represent. Cincinnati, Hamilton & Dayton Ry. Co. v. De Onso (1912), 87 Ohio St. 109.

Patrolman Brown testified at the trial that he knew Nathaniel Hunt and that the photograph was a picture of Hunt. The appellant also testified that the photograph was a picture of Nathaniel Hunt. Through the testimony of Patrolman Brown and the appellant himself, the state [89]*89authenticated the photograph and laid a sufficient foundation to sécuré the photo’s . admission .in evidence. Appellant’s second proposition of law is not well taken.

Appellant-proposes next that it is prejudicial error to allow a jury to hear evidence that a photograph offered by the state was brought to court on a defense subpoena.2

The fact that the photograph was brought to court on a defense subpoena is irrelevant testimony and should have been excluded. See Barnett v. State (1922), 104 Ohio St. 298 However, we can find no evidence of prejudice to the appellant arising from this error.

Appellant argues further that such an error by the trial court was in violation of the Ohio Rules of Criminal Procedure. Crina. R. 16(C)(3) provides that:

“The fact that a witness’ name is on a list furnished under subsection (C)(1)(c), and that the witness is not called shall not be commented upon at the trial.”

It is evident that Rule 16(C)(3) does not pertain to the instant case. Rule 16(C)(3) refers to a witness’ name as furnished under Rule 16(C)(1)(c). Subsection (C)(1). (c) involves a list of names and addresses of the .witnesses the defense plans to call at trial. What is at issue here [90]*90is neither a name nor an address nor a witness, but, rather, a photograph. Prom this evidence it cannot be shown that a violation of the Rules of Criminal Procedure has occur-ed. Appellant’s third proposition of law is overruled.

Appellant’s fourth proposition of law is that where a separation of witnesses is ordered, the recall of a witness excepted from that order is an abuse of discretion. The trial court granted a joint request for separation of witnesses with the proviso by the state that Detective Ryan would be permitted to remain in the courtroom.

The recall of Detective Ryan, who was involved in the investigation, wa,s for the purpose of further establishing- a foundation for the admittance in evidence of state’s Exhibit No. 1, the aforementioned photograph, and his testimony did not in any way speak to the alleged “deficiencies in the state’s case.” It does not comport with sound legal or common sense for the appellant now to be able to claim error based essentially upon his own tactics. This proposition of law is overruled.

' ‘ The appellant also proposes that the prosecutor may not comment on the failure of an alibi witness to appear in court and testify. The alibi witness referred to by the prosecution is the sister-in-law of the appellant. Appellant contends that Crim. R. (16) (C)(3) prohibits any mention of his sister-in-law.

The prosecutor in his final argument to the jury made the following statement:

“Ladies and gentlemen, there is evidence from the defense and from the defendant’s own brother that the defendant was at home at around 4:15. Who else was there? Three small children and the brother’s wife, the sister-in-law. Do you have any testimony from her?”

This is a clear violation of Crim. R. 16(C)(3) to the prejudice of the appellant.

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Cite This Page — Counsel Stack

Bluebook (online)
374 N.E.2d 1359, 54 Ohio St. 2d 84, 8 Ohio Op. 3d 84, 1978 Ohio LEXIS 579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hannah-ohio-1978.