State v. Maupin

330 N.E.2d 708, 42 Ohio St. 2d 473, 71 Ohio Op. 2d 485, 1975 Ohio LEXIS 518

• Court: Ohio Supreme Court
• Decided: June 25, 1975
• Docket: No. 74-354
• Status: Published

Opinions

Stephenson, J.

Appellant’s assertions of error in this appeal relate (1) to the introduction of the rebuttal testimony of Sergeant Allen, (2) to a claimed refusal of the trial court to give proper limiting instructions to the use by the jury of the evidence of marijuana found in the May 25th search, and (3) to the instruction in response to the jury’s indication of difficulty of agreeing upon a verdict.

Appellant’s initial argument is that the admission of the rebuttal testimony in question was prejudicially erroneous. Such argument is premised, basically, upon the following grounds: (1) The substance found in the May 25, 1971, search and identified by Sergeant Allen as marijuana was not brought into court and introduced in evidence, (2) scientific analysis is required for the proper identification of marijuana and (3) such rebuttal testimony was introduced by the state for the purpose of showing appellant’s bad character and reputation by a specific act committed after the time of the offense for which he was being tried.

The contention that the oral testimony as to the substance found is precluded unless the substance is brought into court and introduced in evidence is without merit. It is a rule of practically universal application that the best evidence rule is without application to proof of the nature, appearance or condition of physical objects; that such facts may be proved by parole evidence without their physical production in court or explanation of their non-production. 32A Corpus Juris Secundum 101, Section 782; 1 Underhill’s Criminal Evidence (6 Ed.) 243, Section 103; 21 Ohio Jurisprudence 2d 275, Section 257. See 4 Wigmore on Evidence (Rev. Ed.), 419, Section 1181.

The rule has been applied in Ohio. Napolet v. Bd. of Liquor Control (1953), 67 Ohio Law Abs. 108, 119 N. E. 2d 93. Outside Ohio, it has been applied in drug-violation prosecutions. Francis v. United States (1956), 239 F. 2d 560; People v. Marinos (1968), 260 Cal. App. 2d 735, 67 Cal. Rptr. 452; United States v. Gregorio (1974), 497 F. 2d 1253; United States v. Irion (1973), 482 F. 2d 1240; Straub v. United States (1965), 351 F. 2d 304.

We also reject appellant’s assertion that the parole identification of the substance found in the May 25th search was inadmissible for the reason that no chemical or scientific analysis was made of such substance. There is a serious question as to the sufficiency of appellant’s objection in the record to preserve the question for review. However, resolving the question in favor or appellant, he still cannot prevail.

By reason of its availability to prosecuting authorities, its reliability and persuasiveness to juries, the utilization of expert testimony based upon scientific testing is the traditional approach to drug identification. By the same token, there are a substantial number of authorities judicially approving drug identification other than by scientific analysis. Slettvet v. State (Ind. 1972), 280 N. E. 2d 806; Pettit v. State (Ind. 1972), 281 N. E. 2d 807; Locklayer v. State (Ind. 1974), 371 N. E. 2d 868; Edwards v. Commonwealth (Ky. App. 1973), 489 S. W. 2d 23; People v. Galfund (1968), 267 Cal. App. 2d 317, 72 Cal. Rptr. 917; United States v. Gregorio, supra (497 F. 2d 1253); People v. Robinson (1958), 14 Ill. 2d 325, 153 N. E. 2d 65; People v. Marinos, supra (260 Cal. App. 2d 735); State v. Hutton (1972), 7 Wash. App. 726, 502 P. 2d 1037; White v. Commonwealth (Ky. App. 1973), 499 S. W. 2d 285.

Although it would appear beyond question that a drug may be identified circumstantially, it is also logically recognized that whether a given substance is or is not as claimed (here, marijuana), is beyond the common experience and knowledge of juries and that expert testimony in some form is required. State v. Johnson (1972), 54 Wis. 2d 561, 196 N. W. 2d 717; People v. Kenny (1972), 30 N. Y. 2d 154, 282 N. E. 2d 295; Slettvet v. State, supra; State v. Mutton, supra. This court has recognized the indispensability of expert testimony in civil cases where determinations involve knowledge not ordinarily possessed by laymen. McKay Machine Co. v. Rodman (1967), 11 Ohio St. 2d 77; Tully v. Mahoning Express Co. (1954), 161 Ohio St. 457.

The qualification of an expert is a matter for determination by the court on the facts, and rulings with respect to such matters will ordinarily not be reversed unless there is a clear showing that the court abused its discretion. Akron v. Pub. Util. Comm. (1966), 5 Ohio St. 2d 237; Ohio Turnpike Comm. v. Ellis (1955), 164 Ohio St. 377.

Expert testimony by addicts experienced in drug use has been upheld. Pettit v. State, supra (281 N. E. 2d 807); Edwards v. Commonwealth, supra (489 S. W. 2d 23); United States v. Gregorio, supra (497 F. 2d 1253); State v. Johnson (1972), 54 Wis. 2d 561, 196 N. W. 2d 717. Casual drug use, however, is insufficient for qualification as an expert. People v. Kenny, supra (30 N. Y. 2d 154); People v. McLean (1961), 56 Cal. 2d 660, 365 P. 2d 403. Likewise, expert testimony has been held properly admitted from experienced' police officers. State v. Johnson (1971), 13 N. C. App. 323, 185 S. E. 2d 423; People v. Marinos, supra (260 Cal. App. 2d 735); Carter v. State (1960), 144 Colo. 475, 357 P. 2d 93; Miller v. State (1959), 168 Tex. Crim. 570, 330 S. W. 2d 466.

In 23 Corpus Juris Secundum 408, Section 864, the following is stated as to marijuana identification by police officers:

“Marijuana, not being an extract or preparation difficult or impossible to characterize without chemical analysis, but consisting of the dried leaves, stems, and seeds of a plant which anyone reasonably familiar therewith should be able to identify by appearance, it is not error to permit officers who have had experience in searching for and obtaining marijuana to testify that a certain substance is marijuana; and other police officers have also been held qualified so to testify.”

The record discloses that Officer Allen had served on the vice squad of the city of Cincinnati for 14 years. Additionally, he had worked for a year and a half as an undercover agent for the Federal Bureau of Narcotics; he had made hundreds of arrests, including those for the possession and use of marijuana; and in the course of past drug investigations he had occasion to see and observe marijuana.

In light of the evidence, we conclude that no abuse of discretion was committed by the trial court in admitting Sergeant Allen’s testimony.

Appellant’s final contention that the rebuttal testimony in question was introduced for the purpose of showing appellant’s bad character, subsequent to the offense charged and by specific acts, is likewise rejected. Appellee contended, both in the trial court and upon appeal, that such testimony was offered as evidence-bearing upon appellant’s credibility. On direct examination, appellant testified that he had no marijuana in his home in all of May 1971.

As the United States Supreme Court observed in Harris v. New York (1971), 401 U. S. 222, a criminal defendant is privileged to testify in his own behalf or refuse to do so. If he takes the stand he is under an obligation to speak truthfully and accurately. We hold that the rebuttal at least was properly admitted as bearing on appellant’s credibility.²

Finally, we observe, with respect to the admissibility of such testimony, that since appellant, in effect, and for strategic reasons, stipulated introduction of the search warrant bearing the disclosure that marijuana was found in the May 25th search, any error in the introduction of the oral testimony could not have prejudiced the appellant.

Appellant’s remaining contention with respect to the rebuttal testimony is that the court failed to give limiting instructions with respect to its use by the jury. A limiting instruction presupposes the evidence is properly before the jury for some purpose. The only requested instruction not given was that, set forth above, wherein counsel noted a special exception to the charge. That request, in effect, would have the jury instructed that because the marijuana was not identified as such to disregard the evidence completely upon whether appellant possessed marijuana. For the reasons set forth herein, such request was properly refused.

Aside from the above request, the record is silent as to any other requests limiting the use of that evidence. Such absence forecloses appellate review.

This court has consistently and uniformly held that an appellate court will not consider any error which counsel for a party complaining of the trial court’s judgment could have called, but did not call, to the trial court’s attention at a time when the error could have been avoided or corrected by the trial court. The decisions of this court applying that principle are enumerated in State v. Gordon (1971), 28 Ohio St. 2d 45, in which the court applied the rule to a claim of the failure of the trial court to give limiting instructions when no request for it appeared in the record.

Appellant next asserts that the verdict returned by the jury was the result of coercion induced by the supplemental instruction,³ which appellant describes as an "Allen or dynamite charge,” urging the jury to reach a verdict. Appellant’s challenge is two-fold. It is argued that the wording of the instruction is itself coercive and, also, that it is coercive by prematurity in its timing. The term, "Allen charge,” derives from Allen v. United States (1896), 164 U. S. 492, wherein a supplemental instruction respecting jurors’ duties in attempting to reach a verdict was approved.⁴ Although Allen has never been overruled or modified by the United States Supreme Court, it has been increasingly criticized.⁵ The principle and most frequent reason advanced is that it lacks balance; that the thrust of the Allen instruction is directed to the minority jurors only and is potentially coercive upon them to agree with those jurors constituting the majority. State v. Patriarca (R. I. 1973), 308 A. 2d 300; State v. Marsh (1971), 260 Ore. 416, 490 P. 2d 491; Fields v. State (Alas. 1971), 487 P. 2d 831; United States v. Fioravanti (1969), 412 F. 2d 407; United States v. Bailey (1972), 468 F. 2d 652.

The second difficulty judicially noted with Allen arises from modification and variations, with resultant appeals, in language utilized by trial courts which either omits parts of the Allen charge which tend to avoid any coercive effect or the utilization of language which has the effect of enhancing its potential for coercion. E. g., “you have got to reach a decision in this case,” Jenkins v. United States (1965), 380 U. S. 445; “with that admonition you are directed to continue your deliberations until you arrive at a unanimous verdict, ” Fields v. State, supra (487 P. 2d 831); omission from the instruction that no juror should yield his conscientious convictions, United States v. Rogers (1961), 289 F. 2d 433; imputations of stubbornness to minority jurors, Green v. United States (1962), 309 F. 2d 852.

Although this court has expressed views in Davis v. State (1900), 63 Ohio St. 173, similar to those set forth by the United States Supreme Court in its reasoning approving charges with respect to the duty of each juror to decide the case, but only after conferring with and listening to the views of other jurors, the original Allen charge has never been a part of Ohio jurisprudence. The supplemental instruction considered here, which bears little resemblance to the pure Allen charge, is essentially that approved by the Circuit Court of Franklin County in Andrews v. State (1912), and Huffman v. State, 15 C. C. (N. S.) 241, 252. Exceptions were taken and appealed to this court by the Attorney General and the prosecuting attorney from decisions of the Court of Common Pleas in Huffman. State v. Huffman (1912), 86 Ohio St. 229. Although the paragraph by Justice Brown in Allen as to the duties of jurors is folly set forth in Huffman, Huffman related only to voir dire examination of jurors.

Here, in holding the supplemental instruction to be noncoercive, the Court of Appeals properly noted the phraseology included therein that “ it is your duty to make every reasonable effort to decide the case if you can conscientiously do so.” (Emphasis added.) Equally important, in our view, is the following portion of the charge to the jury:

“Consult with one another, consider each other’s views, and deliberate with the objective of reaching an agreement if you can do so without disturbing your individual judgment.

“Each of you must decide this case for yourself. But you should do so only after a discussion and consideration of the case with your fellow jurors. Do not hesitate to change your opinion if you are convinced that it is wrong. However, you should not surrender honest conviction in order to be congenial or to reach a verdict solely because of the opinion of other jurors.”

We conclude that the supplemental instruction is without the coercive effect appellant asserts. First, because it was an instruction directed to all members of the jury, it was neutral. Secondly, it is difficult to perceive how the jury might interpret the instruction as a direction to reach a verdict by the surrender of conscientiously held views when they had been expressly instructed in the general charge not to surrender honest convictions because of the opinion of other jurors, and, additionally, instructed to decide the case only if they could conscientiously do so. In concluding the instruction noncoercive, we have given consideration to appellant’s specific complaint to that part of the instruction stating, “this case must at some time be decided. ’ ’

In deciding Allen, the court recognized derivation of the instruction as being from Commonwealth v. Tuey (1851), 62 Mass. 1. However, in Tuey, as here, and apparently unlike Allen, the jury was informed that the case must at sometime be decided. Recognizing that such statement, if interpreted to mean a future jury either must convict or acquit, was technically inaccurate, the Tuey charge was recently modified by the Supreme Judicial Court of Massachusetts in Commonwealth v. Rodriquez (1973), 300 N. E. 2d 192, to eliminate such statement. It described the misstatement as a “slight one,” and held the instruction containing it to be nonprejudicial. We agree. Other courts have recognized the undesirability of such phraseology, although holding its use to be nonprejudicial. United States v. Gordon (1952), 196 F. 2d 886; United States v. Barnhill (1962), 305 P. 2d 164. In Fulwood v. United States (1966), 369 P. 2d 960, Justice Burger, now Chief Justice, at page 963, stated, with reference to an instruction that “some jury sometime will have to decide this case,” followed by wording the court hoped they would be able to do so, the following:

“ * * * The statement that some other jury would have to decide the ease if this one could not was accurate as a generality and, in any event, could have had no coercive impact on the jury. If they already knew what would likely happen if they deadlocked, it was surplusage; if they did not know, this information, far from being coercive, would have had the effect of reducing the pressure on them to reach a verdict.”

However, in United States v. Harris (1968), 391 F. 2d 348, such an instruction was held prejudicial where the jury was also informed that a previous jury was unable to agree.

The remaining aspect of appellant’s attack upon the supplementary instruction rests upon the assertion that it was prematurely given. Appellant concedes the fundamental rule that when an instruction shall be given rests in the discretion of the court, claiming, however, that discretion was abused here.

Instructions urging the jury to reach a verdict, proper and noncoercive, may, under given circumstances and conditions, be deemed coercive. Timing is a relevant consideration, 100 A. L. R. 2d 177, 208, Section 7. Other than the complaint as to time and the wording of the instruction, appellant urges no other circumstances present that were potentially coercive. We note the absence of any aggravating circumstances, such as inquiry as to the numerical division of the jury which the United States Supreme Court held coercive per se in Brasfield v. United States (1926), 272 U. S. 448, the fixing of any set time limit for further deliberations condemned in Goff v. United States (1971), 446 F. 2d 623; Burroughs v. United States (1966), 365 F. 2d 431, or the giving of the instruction at a late hour to a tired and exhausted jury.

In retrospect, it may have been sounder judgment to defer giving the supplemental instruction. It is apparent, however, from the initial statement in the supplemental instruction, that the jury had advised the court that it was having difficulty in reaching a verdict. The method of communication with the court, however, was not disclosed in the record. Courts in similar circumstances, and where the jury had deliberated a lesser period of time than here, have forthwith proceeded to give supplemental instructions, and such action has been upheld. In United States v. Barnhill, supra (305 F. 2d 164), where after only one-half hour deliberation, the jury advised the court that it was deadlocked and the court gave a supplemental instruction, it was stated, at page 165, that such “was a normal and proper way to handle the matter,” and that “the shortness of the time interval was the action of the jury, not chargeable to the trial judge.” In United States v. Hynes (1970), 424 F. 2d 754, the jury advised the court shortly before lunch that it was deadlocked after deliberation of two hours and forty-five minutes. After lunch, a supplementary, basically Allen, instruction was then given by the court. A claim of prematurity was rejected and the conviction affirmed even though the jury returned a guilty verdict five minutes after the supplemental instruction was given.

In Andrews v. United States (1962), 809 F. 2d 127, supplemental instructions were held proper when given after only one hour and five minutes, with no communication from the jury it was unable to agree. Likewise, in United States v. Martinez (1971), 446 F. 2d 118, with no prior communication from the jury and without any request of counsel, the giving of supplemental instructions was held not to be unduly coercive or an abuse of discretion, after about three hours of deliberation following a three-day trial.

Giving consideration to the simplicity of the issues for jury determination, the neutral and noncoercive language of the jury instruction, and in light of other attendant circumstances, we conclude it to be speculative, at best, that the timing of the instruction had such a coercive effect upon the jury that it forced an agreement that would not have otherwise been reached. Hence, we hold that no abuse of discretion occurred.

For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

O’Neill, C. J., Herbert, Celebrezze and P. Brown, JJ., concur. Stern and W. Brown, JJ., dissent. Stephenson, J., of the Fourth Appellate District, sitting for Corrigan, J.

2 The evidence respecting the marijuana found in the May 25th search was presented to the jury without limiting instructions as to its purpose or use. We deem it unnecessary to decide whether, as appellant now claims, limiting instructions should have been given, for, as will subsequently be seen, no such request was made to the trial court.

3 The supplemental instructions read as follows:

“The Court: Ladies and gentlemen of the jury: The court is advised that you have indicated difficulty in reaching a verdict. Now, the court suggests to you that since the trial of this case means a great deal to the parties and to the public, and has been expensive in time, effort, and money, the court urges you to make every reasonable effort to agree on a verdict.

“You may consider that this case must at sometime be decided, and that you were selected in the same manner and from the same source from which any future jury must be selected.

“There is no reason to suppose that the case will ever be submitted to twelve individuals more intelligent, more impartial, or more competent to decide it, or that additional evidence will be produced by either side.

“It is your duty to make every reasonable effort to decide the case if you can conscientiously do so. The court instructs you to return to the jury room and continue your deliberations.”

4 The Supreme Court, at page 501, summarized the instruction in Allen thusly:

“* * * that in a large proportion of cases absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves Whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.”

5 Listing of jurisdictions wholly abandoning the Allen charge or adopting in its place the ABA Standards Relating To Trial By Jury, Sec. 5.4, may be found in State v. Martin (1973), 297 Minn. 359, 211 N. W. 2d 765; People v. Sullivan (1974), 392 Mich. 324, 220 N. W. 2d 441. The federal circuits are summarized in United States v. Bailey (1972), 468 F. 2d 652, 667.