State v. Wilkinson
This text of 271 N.E.2d 242 (State v. Wilkinson) 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.
Opinion
The state’s witnesses, John Raso, Timothy Raso, and Officer Watkins, at trial made in-court identifications of appellant as the man they personally observed on the night of the robbery. In addition, at trial on direct examination, each of these witnesses told of a prior out-of-court identification of Abner Wilkinson by selecting his photograph from a group of other photographs. It is the evidence of the prior out-of-court identification procedure about which appellant complains.
This court recently has had occasion to decide a case concerning an out-of-court identification procedure and its impact upon the trial of the defendant. State v. Breedlove (1971), 26 Ohio St. 2d 178. We held that under R. C. 2945.55 evidence of a prior out-of-court identification of the defendant by a photograph selection is admissible at trial if the photographs do not provide the finder of facts with the reasonable inference that defendant has had prior criminal involvement.
In this case, the photographs of Wilkinson admitted in evidence and submitted to the jurors had no identification numerals on them. We have examined these photographs and cannot find, as a matter of law, that any of them provide a basis for a reasonable inference that appellant had had prior criminal involvement.
Defense counsel’s reference, on cross-examination, to [188]*188the photographs as “mug shots,”1 first injected into the trial the suggestion that the photographs were mug shots.
John Raso and Timothy Raso identified appellant’s photograph prior to the stage of the criminal procedure when his rights under the Sixth Amendment to the United States Constitution attached. Officer Watkins had known appellant some years before, and there is no evidence that his testimony regarding his having observed Wilkinson’s photograph on the wall at a police station tainted the in-court identification. See State v. Jackson (1971), 26 Ohio St. 2d 74; United States v. Wade (1967), 388 U. S. 218; Gilbert v. California (1969), 388 U. S. 263.
Appellant also contends that the trial court erred in admitting the photographs in evidence without the laying of a proper foundation in that at no time was the jury informed when, how, or why the photos were taken. Although this contention is somewhat incongruous with the [189]*189fact that defense counsel termed them “mug shots,” the admission or rejection of photographs was in the sound discretion of the court. See State v. Woodards (1966), 6 Ohio St. 2d 14; State v. Hill (1967), 12 Ohio St. 2d 88. The state’s witnesses stated that the pictures were in fact pictures of the man they saw on the night of the crime. We find no abuse of discretion.
Apparently, appellant also assigns as prejudicial error the court rulings on the admissibility of evidence of a relationship between Clarence Holland and himself. The prosecutor obviously was attempting to produce testimony from Detective Patterson that appellant’s connection with the robbery was first suggested by the fact that a check of Holland’s police file showed appellant to have been an associate of Holland. The trial court sustained defense counsel’s objections to the prosecutor’s attempted elicitation of such testimony.2 There is no need to determine whether there is evidence of a criminal conspiracy, or if one was proved. We believe the record in this regard demonstrates no prejudice to appellant.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
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Cite This Page — Counsel Stack
271 N.E.2d 242, 26 Ohio St. 2d 185, 55 Ohio Op. 2d 444, 1971 Ohio LEXIS 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wilkinson-ohio-1971.