State v. Reese

192 N.E.2d 791, 117 Ohio App. 454, 24 Ohio Op. 2d 253, 1962 Ohio App. LEXIS 624

• Court: Ohio Court of Appeals
• Decided: May 22, 1962
• Docket: 6816
• Status: Published

Opinions

Duffey, P. J.

Appellant Julius Reese, herein called appellant, was indicted and convicted of armed robbery in the Franklin County Common Pleas Court.

In this appeal, appellant has assigned five errors. As to the first, second, fourth, and fifth assignments, we find no prejudicial error. The third assignment concerns the exclusion of evidence offered to impeach the testimony of a codefendant, Cretta Reese.

Over appellant Julius Reese’s objection, he and his sister-in-law, Cretta Reese, were tried jointly. The prosecution’s case rested on the testimony of the alleged victim and two police officers. Both officers testified to statements allegedly made by Cretta which implicated the appellant. Upon taking the stand in her own defense, Cretta directly implicated the appellant, her testimony being in effect that appellant had forced her to commit the alleged robbery. Cretta was cross-examined by Mr. Bradley, the appellant’s attorney. Cretta’s counsel was William Lynch. The record shows the following:

“Q. Have you ever been convicted of a crime?

“Mr. Lynch: I object.

“The Court: She may answer that.

“Mr. Lynch: Note an exception.

“The Witness: No.

“The Court: Mrs. Eeese, speak a little louder. I am sure the jurors are having a hard time hearing you, a number of them, because I have good ears and I have trouble hearing you. Speak right up.

“Q. So as to be certain now, I asked you if you had ever been convicted of a crime and you said no;-is that right? A. That is right.

“Mr. Lynch: Would you want to explain what a crime means there ?

“The Court: No, I don’t think he need explain that.”

In presenting his defense, appellant proffered the testimony of the Franklin County Clerk of Courts, to prove that Cretta Eeese had been found guilty in Franklin County of the crime of assault and battery. This witness’ testimony was excluded by the trial judge over appellant’s objection. When appellant’s counsel protested that he had asked Cretta whether she had been convicted of a crime, the court commented: “How did she know that was a crime?” We assume, as we think we must, that the proof would have been by whom and just exactly what the proffer says it would be.

It would appear that the trial court had in mind the rule limiting cross-examination to crimen falsi. However, just a week previous to the trial of this case, the Supreme Court decided State v. Murdoch (1961), 172 Ohio St., 221..

In the Murdoch case the second paragraph of the syllabus states that an offense under state laws may be shown for the purpose of affecting credibility. It approved and followed the case of Harper v. State (1922), 106 Ohio St., 481. In Harper, the fifth paragraph of the syllabus states that such inquiries are not collateral, “but directly affect the credibility of the witness.”

Considering the vast scope of state regulatory law, and the appendage of criminal liability to almost all of it, it may be doubted that every conviction under any state law can be said to affect credibility, and further that if it does, that the effect is direct. However, as we read the Murdoch case, that position is no longer open to us.

As to the sufficiency of the questions asked as a foundation for impeachment by proof of conviction, the area here should be distinguished from the foundation necessary to prove prior inconsistent statements. In some states, proof of conviction is proper without any prior foundation. 98 Corpus Juris Secundum, Witnesses, Section 518. However, a general question as to conviction is proper and it is not necessary to specify a particular crime. State v. Baldridge (1956), 75 Ohio Law Abs., 549; State v. Carter (1944), 75 Ohio App., 545; 42 Ohio Jurisprudence, Witnesses, Section 358; 58 American Jurisprudence, Witnesses, Section 750; 98 Corpus Juris Secundum, Witnesses, Sections 515 and 528.

The prosecution argues that its case for appellant’s guilt rests on the theory of his participation in a robbery, that Cretta’s testimony is relevant only to her personal defense of forced participation and that, therefore, the exclusion was nonprejudicial. While ingenious, this proposition cannot be accepted. If appellant’s testimony were to be fully believed, the jury could have found him innocent of armed robbery. Its implausibility is not a matter that this court, or the trial judge, can determine. Cretta Neese’s testimony, and the statements attributed to her by other witnesses, strongly corroborate the testimony of the prosecution’s chief witness and thereby affect the weight and acceptability of the appellant’s testimony. To affirm the judgment of the trial court here would be analogous to holding that the exclusion was nonprejudicial because on the weight of the evidence the appellant is guilty. This would be a substitution of this court’s opinion for that of the jury in a criminal case.

Further, and more fundamentally, appellant has a right to a fair trial. That right necessarily comprehends the opportun ity to present to the jury all the legally admissible evidence, both that directly on the merits and that bearing directly on the credibility of adverse evidence. In criminal cases that right must be zealously protected. The probable guilt of a defendant cannot be used to obscure his right to present his case and have it decided by a jury on all the evidence. The evidence offered here was not cumulative, and the witness was an important one.

The judgment of the Common Pleas Court is reversed, and the cause is remanded for further proceedings.

Judgment reversed.

Duffy, J., concurs.