State v. Kehn

361 N.E.2d 1330, 50 Ohio St. 2d 11, 4 Ohio Op. 3d 74, 1977 Ohio LEXIS 365
CourtOhio Supreme Court
DecidedApril 20, 1977
DocketNo. 76-496
StatusPublished
Cited by76 cases

This text of 361 N.E.2d 1330 (State v. Kehn) 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. Kehn, 361 N.E.2d 1330, 50 Ohio St. 2d 11, 4 Ohio Op. 3d 74, 1977 Ohio LEXIS 365 (Ohio 1977).

Opinion

Per Curiam.

The nature of Broeckel’s testimony is inherently suspect and untrustworthy, and we approach it with utmost caution. We note at the outset, however, that it is not our function, but that of the jury, to determine the credibility of the witnesses. See State v. Wolery (1976), 46 Ohio St. 2d 316. In returning its verdict, the jury was obviously satisfied, and reasonably so, with the amount of corroboration to Broeckel’s testimony. . .

Appellants jointly assert five propositions of law which [15]*15allege error at'trial. Additionally, appellant Mihalie asserts; two other propositions.

Appellants’ first proposition of law. asserts that the trial conrt abused its discretion in not granting a continuance where the state delayed compliance with discovery orders and supplemented its witness list with 11 new names: on the second day before trial. ' ■ :

A review of the record reveals that on April 11, 1974, the trial court originally set the trial date for June 4,1974. On May 28, the court, sua sponte and with counsels’ approval, changed the trial date to June 18. Appellants’ first request for a continuance was June 12.

The granting of a continuance is within, the sound dis-: cretion of the trial court. Since the state relied so heavily on Broeckel’s testimony, the sheer number of state’s- witnesses was not an inherent hardship. The majority, of witnesses that the state expected to call were victims of various crimes and the police officers who investigated these crimes. Their testimony, when considered individually, would not have great impact on the case. .Bather, it. was Broeckel’s testimony, subject to corroboration for credibility, which was the focal point of the trial. If counsel for appellants believed that the prospective witness list, which was given to them well in advance, necessitated additional time to prepare, then they should have requested a continuance at an earlier, more appropriate time. It appears that counsel is using the addition of 11 new names to the list as an excuse for their unusually late request. These new names did not alter defense counsel’s preparatory strategy- — their main concern was rebutting Broeckel’s testimony.

The record shows that appellants were, not hampered in any way by. the denial of the continuance. With no show-; ing of adverse effect, there can be no prejudicial error., We conclude that: the trial court did not abuse its discretion, and accordingly overrule appellants’ first proposition of. law. :.

Appellants allege, as their second proposition of;law, [16]*16that the trial court committed error in admitting a certain writing, purporting to be an address book with a listing of “Denny the Cop” followed by appellant Kehn’s phone number, without first identifying the writing. Appellant Mihalic asserts that he was also prejudiced by this evidence because the state constantly referred to him as Kehn’s “partner.”

At trial, Sergeant Edward Kovacic identified the exhibit as the telephone address book that, pursuant to a search warrant, he removed from the home of Philip Christopher, an unindicted co-conspirator, in June of 1972. Kovacic testified that in his opinion the book appeared to be the same at trial as when he originally found it, and that the book had been in the ¡Dossession of the F. B. I. from 1972 until the trial.

Such testimony was sufficient to identify and authenticate the writing.

The state offered the address book to support the existence of a conspiracy involving Kehn, Christopher and Broeckel. Kehn attempted to explain how his name and telephone number could have legitimately been in the book. It was the jury’s function, as trier of fact, to weigh and determine the credibility of the evidence which was properly admitted.

This proposition of law is thus overruled.

Appellants’ third proposition of law is that the trial court committed error when it refused to admit certain records, railroad employee time sheets, kept in the ordinary course of business on the ground that the maker of these records was not available to testify.

Kehn attempted to introduce these railroad time sheets, together with explanatory testimony from a railroad employee, to prove that Allan Pannetta, another unindicted accomplice in certain of the crimes, was working at the time certain burglaries were committed. Kehn desired to demonstrate that Broeckel was lying, or at least mistaken, about Pannetta’s participation in these burglaries.

In affirming the trial court, the Court of Appeals stated [17]*17that “[the railroad employee] did not testify that he was * * * the custodian of the records.” This stated basis was factually in error for the record shows that the witness was asked no less than four times if the record was “under your custody or control.” Each time, the witness answered affirmatively.

However, the evidence was correctly excluded because it would have created a dispute about extraneous or collateral matters, i. e., Pannetta’s participation. Kehn and Mihalic were on trial, not Pannetta, and the court, by excluding the testimony, avoided the dangers of surprise, jury confusion and wasted time which are the reasons for the rule against impeachment on collateral matters.

The trial court’s exercise of discretion involved the weighing of the probative value of the offered evidence against its potential misuse ‘by the jury. No abuse of discretion is evident, and this proposition of law is accordingly overruled.

In their fourth proposition of law, appellants assert that the trial court erred in admitting in evidence purported business records, bank deposit slips, without first determining that the records were made under circumstances justifying their admission under B. C. 2317.40.2

The state sought to introduce these bank records as circumstantial evidence of a coin payoff following a vending machine company burglary as testified to by Broeckel. These records, copies of two bank deposit slips, showed a deposit to each of the checking accounts of Kehn and Mihalic. Both slips indicated that the deposits were made in coin. The assistant to the special records officer testi[18]*18fied that his department is custodian of the bank’s records. He identified one of the offered exhibits as a copy of a deposit slip which was under his care and custody in the normal course of business, and explained that the amount, deposited was entered in the space designated “coin.”

The trial record does not indicate that either appellant timely objected to the introduction of the deposit slips as evidence. Rather than objecting, appellants sought to offer explanations of the deposit slips.

We conclude that the deposit slips were properly qualified under R. C. 2317.40. This proposition of law is without merit, and is overruled.

Appellants assert, in their fifth proposition of law, that the trial judge’s possession of the notes made by the jury foreman constituted evidence aliunde, thus permitting inquiry into possible misconduct by the jury. Appellants assert further that if such material is brought into the jury room, then it is error which requires a new trial.

The verdict of a jury may not be impeached by the testimony or affidavits of a member of that jury unless there is evidence aliunde impeaching the verdict. See Dichl v. Wilmot Castle Co. (1971), 26 Ohio St. 2d 249.

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Cite This Page — Counsel Stack

Bluebook (online)
361 N.E.2d 1330, 50 Ohio St. 2d 11, 4 Ohio Op. 3d 74, 1977 Ohio LEXIS 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kehn-ohio-1977.