O’Neill, C. J.
Appellant presents 12 propositions of law.
I.
In proposition of law No. 1, appellant claims the trial court violated his Sixth and Fourteenth Amendment rights in allowing in evidence inculpatory double hearsay statements.
At the trial the state called Edward Duvall, Jr., a detective of the Akron Police Department, as a witness. Duvall related a conversation between appellant and another police detective, Captain John Traub. Over appellant’s objection, Duvall was permitted to testify that Traub informed appellant that his accomplices had been arrested, and both of them had identified him as the triggerman. Duvall, also testified that after appellant was confronted with this statement, he “appeared nervous and hesitated, and then stated that he wished to have an attorney.”
The trial court erred in admitting Duvall’s account of Traub’s experience. The accusatory statements of Traub, as testified through Duvall, are hearsay, and since Traub [19] and Pitts were not called as witnesses, the admission of these statements violated the defendant’s Sixth Amendment right of confrontation. In effect, the state was permitted to put in the mouths of others (Traub and Pitts) not under oath statements to support and corroborate Richmond’s incriminating testimony.
The question is, then, whether the trial court’s error was harmless.
In Schneble v. Florida (1972), 405 U. S. 427, the United States Supreme Court, in dealing with a similar issue, stated:
“* * * In Bruton, the Court pointed out that ‘[a] defendant is entitled to a fair trial, but not a perfect one.’ 391 U. S., at 135, quoting Lutwak v. United States, 344 U. S. 604, 619 (1953). Thus, unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not required. See Chapman v. California, 386 U. S. 18, 24 (1967). In this case, we conclude that the ‘minds of an average jury’ would not have found the state’s case significantly less persuasive had the testimony as to * * * [the co-defendant’s] admission been excluded. The admission into evidence of these statements, therefore, was at most harmless error.” See, also, Brown v. United States (1973), 411 U. S. 223.
In reviewing the entire record, disregarding the objectionable portion of detective Duvall’s testimony, this court finds the error constitutionally harmless. Harrington v. California (1969), 395 U. S. 250; Chapman v. California (1967), 386 U. S. 18; Schneble v. Florida, supra. Since the state’s key witness, Richmond, provided sufficient evidence of appellant’s participation in the murder, the detective’s testimony was merely cumulative of other corroborating evidence properly before the jury.
This proposition of law is not well taken.
II.
In his second proposition of law the appellant complains that the trial court erred in allowing the state to use, as incriminating evidence, the assertion of his constitutional right to remain silent.
[20] As mentioned in the discussion of appellant’s first proposition of law, detective Duvall testified that after Traub had informed appellant that his co-conspirators had identified him as the triggerman, appellant “appeared nervous and hesitated, and then stated he wished to have an attorney.” Appellant claims this testimony an impermissible comment on his constitutional right to remain silent.
In Ohio, this issue was discussed in State v. Stephens (1970), 24 Ohio St. 2d 76, 263 N. E. 2d 773. Citing Gillison v. United States (1968), 399 F. 2d 586, this court noted, at page 80:
“ ‘The prosecution may not therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.’ ”
In further discussing the issue, the court stated, at pages 81 and 82:
“In the first detention of a suspect it is not uncommon to react by refusing to discuss the charges until a lawyer can be retained. Desire for friendly counsel and advice can be a major motivation at that time in the mind of one completely innocent of the charges, as well as one who subsequently may admit his guilt.
“His privilege at that time is silence. * * # he should not thereafter be penalized for his original refusal.
“Prosecution references to that silence, or any inferences drawn therefrom, are not permissible unless the record clearly demonstrates by the action and testimony of the defendant that he has waived the privilege previously asserted.” (Emphasis added.)
This court does not find appellant’s argument persuasive on the facts. At the time appellant was interrogated by detective Duvall, he had intelligently, knowingly, and voluntarily waived his Miranda constitutional rights. Having done so, it is inconsistent for him to say that his appearance and responses during the interrogation violated his Fifth and Sixth Amendment rights.
This argument is without merit.
[21] in.
As his proposition of law No. 3, appellant contends: “Photographic identification procedures are not to he employed when [a] suspect is in custody and a line-up is otherwise feasible unless [the] police can offer extenuating circumstances justifying [the] use of a photographic identification.”
Other than Richmand, the only other identification witness to the crime, Michael Alldredge, was permitted to make an in-eourt identification of appellant and to testify as to a prior out-of-court identification. The identification occurred four months after the crime. Detectives Singleton and Oldaker went to the home of witness Alldredge and had him view six “mug . shot” photos. Appellant’s picture was among the photographs.
Although the photographs disclosed, at the bottom, the identifying number, date of arrest and height and weight of each individual photographed, witness Alldredge testified that he did not look at this information in his examination of the pictures.. After, viewing the photos for (about five minutes, Alldredge, selected the appellant’s photo. At this time, the detectives informed him that appellant was one of the individuals previously arrested for this crime. Prior to that time, the detectives had not mentioned the photographs except for their earlier request to Alldredge that “they had some photographs that they wanted [him] to look at.”
Appellant argues that this "evidence of identification should have been withheld from the jury. As a matter of due process, appellant contends, photographic identification procedures should not be employed when a suspect is in custody and a liné-up is otherwise feasible.
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O’Neill, C. J.
Appellant presents 12 propositions of law.
I.
In proposition of law No. 1, appellant claims the trial court violated his Sixth and Fourteenth Amendment rights in allowing in evidence inculpatory double hearsay statements.
At the trial the state called Edward Duvall, Jr., a detective of the Akron Police Department, as a witness. Duvall related a conversation between appellant and another police detective, Captain John Traub. Over appellant’s objection, Duvall was permitted to testify that Traub informed appellant that his accomplices had been arrested, and both of them had identified him as the triggerman. Duvall, also testified that after appellant was confronted with this statement, he “appeared nervous and hesitated, and then stated that he wished to have an attorney.”
The trial court erred in admitting Duvall’s account of Traub’s experience. The accusatory statements of Traub, as testified through Duvall, are hearsay, and since Traub [19] and Pitts were not called as witnesses, the admission of these statements violated the defendant’s Sixth Amendment right of confrontation. In effect, the state was permitted to put in the mouths of others (Traub and Pitts) not under oath statements to support and corroborate Richmond’s incriminating testimony.
The question is, then, whether the trial court’s error was harmless.
In Schneble v. Florida (1972), 405 U. S. 427, the United States Supreme Court, in dealing with a similar issue, stated:
“* * * In Bruton, the Court pointed out that ‘[a] defendant is entitled to a fair trial, but not a perfect one.’ 391 U. S., at 135, quoting Lutwak v. United States, 344 U. S. 604, 619 (1953). Thus, unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not required. See Chapman v. California, 386 U. S. 18, 24 (1967). In this case, we conclude that the ‘minds of an average jury’ would not have found the state’s case significantly less persuasive had the testimony as to * * * [the co-defendant’s] admission been excluded. The admission into evidence of these statements, therefore, was at most harmless error.” See, also, Brown v. United States (1973), 411 U. S. 223.
In reviewing the entire record, disregarding the objectionable portion of detective Duvall’s testimony, this court finds the error constitutionally harmless. Harrington v. California (1969), 395 U. S. 250; Chapman v. California (1967), 386 U. S. 18; Schneble v. Florida, supra. Since the state’s key witness, Richmond, provided sufficient evidence of appellant’s participation in the murder, the detective’s testimony was merely cumulative of other corroborating evidence properly before the jury.
This proposition of law is not well taken.
II.
In his second proposition of law the appellant complains that the trial court erred in allowing the state to use, as incriminating evidence, the assertion of his constitutional right to remain silent.
[20] As mentioned in the discussion of appellant’s first proposition of law, detective Duvall testified that after Traub had informed appellant that his co-conspirators had identified him as the triggerman, appellant “appeared nervous and hesitated, and then stated he wished to have an attorney.” Appellant claims this testimony an impermissible comment on his constitutional right to remain silent.
In Ohio, this issue was discussed in State v. Stephens (1970), 24 Ohio St. 2d 76, 263 N. E. 2d 773. Citing Gillison v. United States (1968), 399 F. 2d 586, this court noted, at page 80:
“ ‘The prosecution may not therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.’ ”
In further discussing the issue, the court stated, at pages 81 and 82:
“In the first detention of a suspect it is not uncommon to react by refusing to discuss the charges until a lawyer can be retained. Desire for friendly counsel and advice can be a major motivation at that time in the mind of one completely innocent of the charges, as well as one who subsequently may admit his guilt.
“His privilege at that time is silence. * * # he should not thereafter be penalized for his original refusal.
“Prosecution references to that silence, or any inferences drawn therefrom, are not permissible unless the record clearly demonstrates by the action and testimony of the defendant that he has waived the privilege previously asserted.” (Emphasis added.)
This court does not find appellant’s argument persuasive on the facts. At the time appellant was interrogated by detective Duvall, he had intelligently, knowingly, and voluntarily waived his Miranda constitutional rights. Having done so, it is inconsistent for him to say that his appearance and responses during the interrogation violated his Fifth and Sixth Amendment rights.
This argument is without merit.
[21] in.
As his proposition of law No. 3, appellant contends: “Photographic identification procedures are not to he employed when [a] suspect is in custody and a line-up is otherwise feasible unless [the] police can offer extenuating circumstances justifying [the] use of a photographic identification.”
Other than Richmand, the only other identification witness to the crime, Michael Alldredge, was permitted to make an in-eourt identification of appellant and to testify as to a prior out-of-court identification. The identification occurred four months after the crime. Detectives Singleton and Oldaker went to the home of witness Alldredge and had him view six “mug . shot” photos. Appellant’s picture was among the photographs.
Although the photographs disclosed, at the bottom, the identifying number, date of arrest and height and weight of each individual photographed, witness Alldredge testified that he did not look at this information in his examination of the pictures.. After, viewing the photos for (about five minutes, Alldredge, selected the appellant’s photo. At this time, the detectives informed him that appellant was one of the individuals previously arrested for this crime. Prior to that time, the detectives had not mentioned the photographs except for their earlier request to Alldredge that “they had some photographs that they wanted [him] to look at.”
Appellant argues that this "evidence of identification should have been withheld from the jury. As a matter of due process, appellant contends, photographic identification procedures should not be employed when a suspect is in custody and a liné-up is otherwise feasible.
Although appellant cites no controlling authority for his proposition of law to this court, he does rely upon, several state Supreme Court decisions so holding. People v. Anderson (1973), 389 Mich. 155, 186, 205 N. W. 2d 461; People v. Williams (1975), 60 Ill. 2d 1, 322 N. E. 2d 819; State v. Nettles (1972), 81 Wash. 2d 205, 500 P. 2d 752.
This court does not find the appellant’s arguments [22] persuasive. The United States Supreme Court specifically-approved the use of post-indictment photographic identification procedures in United States v. Ash (1973), 413 U. S. 300. In that case, following a thorough discussion of the Sixth Amendment right to counsel and photographic displays, the court reached the conclusion, at page 321, that:
“We are not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required.
“We hold, then, that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender.”
Justice Stewart, in a concurring opinion, discussed the advantages of a photographic display over a line-up, and found, at page 324, that:
“A photographic identification is quite different from a lineup, for there are substantially fewer possibilities of impermissible suggestion when photographs are used, and those unfair influences can be readily reconstructed at trial.”
Appellant also suggests that the discrepancy between the identifying witness’ initial description of the murderer and appellant’s physical characteristics is so diverse as to render the witness’ identification suspect. In Simmons v. United States (1968), 390 U. S. 377, 384, the United States Supreme Court established the following standard for the manner in which photographic arrays were to be conducted:
“* * * we hold that each ease must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”
Beviewing the facts in the instant case, and. applying the test in Simmons v. United States, supra, this court re[23] jeets appellant’s contention. The inconsistencies in All-dredge’s testimony do not indicate an identification procedure so “impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”
Appellant’s third proposition of law is not well taken.
TV.
The next proposition of law, No. 4, advanced by appellant is that the verdict was manifestly against the weight of the evidence because the elements of robbery were not proven. Aggravated robbery is defined by R. C. 2911.01, as follows:
“(A) No person, in attempting or committing a theft offense as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following:
“(1) Have a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code on or about his person or under his control;
“(2) Inflict, or attempt to inflict serious physical harm on another.
“ (B) Whoever violates this section is guilty of aggravated robbery, a felony of the first degree.”
The first requirement, appellant continues, is that one must either commit or attempt to commit a theft offense. The definition of a theft offense is found in R. C. 2913.02, which provides, in pertinent part:
“(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either:
“(1) Without the consent of the owner or person authorized to give consent;
“(4) By threat.”
Relying upon eases construing the language in the statutory predecessor to R. C. 2913.02,