Summary
In State v. Kaiser (1978), 56 Ohio St.2d 29, 32, the court stated that a defendant who testifies may be asked questions on cross-examination concerning prior convictions.
Summary of this case from State v. StatenOpinion
No. 77-1127
Decided October 18, 1978.
Criminal law — Aggravated murder — Identification of accused — Not tainted by subsequent identification procedure, when — Right to speedy trial — Applicability of R.C. 2945.71(D).
1. Where a witness has already identified a suspect in circumstances which are not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification," a subsequent identification procedure which may be "impermissibly suggestive" does not taint the original identification.
2. R.C. 2945.71(D) is applicable only to those defendants held in jail in lieu of bail solely on the pending charge. ( State v. MacDonald, 48 Ohio St.2d 66, approved and followed.)
APPEAL from the Court of Appeals for Cuyahoga County.
Larry Kaiser, appellant herein, was indicted on July 31, 1975, for a violation of R.C. 2903.01 (aggravated murder with a specification), and for two violations of R.C. 2911.01 (aggravated robbery). The indictments resulted from a robbery and homicide occurring at Zabak's Bar in Cleveland on May 25, 1975. On the evening of that day, Ludwig Mervar was on duty as bartender. John Penkowski, a customer at the bar, was joined about midnight by two women, and within an hour three men entered the bar. After the three men were served, the bartender escorted the two women part of the way to their automobile in the parking lot. Upon the bartender's return, one of the three men — later identified by Mervar as the appellant — exhibited a gun and said: "That's it, right there, you know what this means." Mervar was ordered by appellant to lie on the floor. Money was taken from his pocket and he was then ordered into the basement. He heard one of the three robbers say to Penkowski: "You get down there, too." As Penkowski started down the stairs, Mervar heard a shot. Penkowski, fatally wounded by one of the three men, was carried down the stairs by Mervar.
The robbers obtained $37 from Mervar, a few dollars from Penkowski, the money in the cash register, a tape player and two radios.
On May 25, Mervar was shown approximately 200 photographs and, on or about the following day, viewed three lineups at the police station. He was not able to identify any of the three men on either of those days.
Later, on July 8, 1975, Mervar saw an article in a Cleveland newspaper about the funeral of a policeman who had been killed. A photograph of the man being charged with the slaying accompanied the article. Mervar identified that man as being the appellant, and he reported this to the police on the following day. The police showed Mervar two photographs at the station. Mervar identified one as being the appellant.
At appellant's trial, the testimony of a police detective indicated that Mervar's description of appellant immediately following the robbery was that appellant wore a dark red sweater and had either glasses or sunglasses on. At the trial, Mervar described appellant as being dressed in a dark coat or jacket and described another of the three men as having had the glasses. Upon cross-examination, Mervar stated that immediately after the incident he was "uptight" and "shook" and that his in-court description was correct. Mervar stated that he had observed appellant's appearance while serving him beer and that he had had a better opportunity to view appellant because he did not move around as had the other two men at the bar.
Appellant offered evidence to establish an alibi. That evidence was to the effect that appellant had been in Chicago and was on a Greyhound bus with his brother, returning to Cleveland, when the robbery and homicide took place.
The jury returned verdicts of guilty to all the charges in the indictments. Appellant was given consecutive sentences of from seven to twenty-five years on the aggravated robbery charges and death on the charge of aggravated murder with the specification. It was also ordered that the foregoing sentences be consecutive to the sentence in the case involving the death of the police officer for which appellant had earlier been convicted of aggravated murder with specifications.
Upon appeal, the Court of Appeals affirmed the judgment of conviction and the cause came before this court upon appeal as a matter of right.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Robert E. Kickel, for appellee.
Jacobs, Jacobs Ziskind Co., L.P.A., Mr. Thomas L. Jacobs and Mr. Russell S. Bensing, for appellant.
Four propositions of law are proferred in this appeal.
The first is that the showing of a single mug shot of appellant to the eyewitness violated appellant's due process rights and irretrievably tainted the identification. Appellant cites Simmons v. United States (1968), 390 U.S. 377. This court in State v. Perryman (1976), 49 Ohio St.2d 14, 358 N.E.2d 1040, at page 22, quoted the following from Simmons:
"* * * we hold that each case 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."
A review of the facts herein shows that, prior to the identification of appellant's photograph at the police station, Mervar identified appellant from a picture appearing in the newspaper. In State v. Sheardon (1972), 31 Ohio St.2d 20, 285 N.E.2d 335, two witnesses, after having identified defendant from police pictures, were allowed to view the defendant in person. It was then determined that such procedure was not error inasmuch as the witnesses had already identified the defendant and the purpose of the viewing was for confirmation of the prior identification.
Thus, when a witness has already identified a suspect in circumstances which are not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification," a subsequent identification procedure which may be "impermissibly suggestive" does not taint the original identification.
This court finds appellant's first proposition of law to be not well taken.
The second proposition of law reads: "Permitting a police detective to testify that the photograph of the defendant shown to the state's only eyewitness was the result of the defendant's arrest for a felony is error prejudicial to the defendant."
At the trial, appellant called a detective to the stand and elicited testimony concerning the date when Mervar was shown the mug shot of appellant and concerning the mug shot itself. On cross-examination, the state inquired of the detective why the mug shot was taken. Over objection, the detective testified that mug shots are taken where a person is arrested for a felony. Appellant urges that the admission of this evidence of another arrest was error.
The record shows that, during the trial, appellant took the stand in his own behalf and that on cross-examination, he was asked about his prior convictions. He responded that he had been convicted of aggravated murder and aggravated robbery. Inasmuch as a defendant "may be cross-examined as to his conviction of a crime under state or federal laws for the purpose of testing credibility" ( State v. Arrington, 42 Ohio St.2d 114, 120, 326 N.E.2d 667), such cross-examination was proper. In view of the evidence as to prior convictions, the admission of the testimony from the police detective indicating that appellant had been arrested for a felony cannot be said to be prejudicial.
Appellant's third proposition of law states: "When an accused is held in jail in lieu of bail on two pending, unrelated charges, the two charges are brought in the same jurisdiction, and the accused is available for trial on both charges, the accused must be brought to trial on both charges within the time limits set forth in Revised Code Section 2945.71, subject to the exceptions contained in Revised Code Section 2945.72."
R.C. 2945.71 reads, in relevant part:
"(C) A person against whom a charge of felony is pending:
"(1) Shall be accorded a preliminary hearing within fifteen days after his arrest;
"(2) Shall be brought to trial within two hundred seventy days after his arrest;
"(D) For purposes of computing time under divisions (A), (B), and (C) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days."
The record shows that appellant was arrested for the homicide of the police officer, the publicity about which resulted in appellant's identification on July 7, 1975, and that he was indicted for the offenses in the instant cause on July 31, 1975. Appellant's trial commenced on December 8, 1975.
Appellant argues that he "was held in jail from July 9, 1975, the date on which Ludwig Mervar identified him as one of the participants in the May 25 robbery, until his trial began on December 8, 1975, a period of 152 days," and that he is entitled to have this time credited under the triple-count provision of R.C. 2945.71(D).
It is evident that appellant's incarceration between July 7, 1975, and December 8, 1975, was not solely because of the charges made against him in the instant cause. The trial relative to the homicide of the police officer was conducted in October of 1975.
In State v. MacDonald (1976), 48 Ohio St.2d 66, 357 N.E.2d 40, it was held that:
"R.C. 2945.71(D) is applicable only to those defendants held in jail in lieu of bail solely on the pending charge." (Emphasis added.)
Appellant thus was not entitled to the triple-count provision of R.C. 2945.71(D) and was tried within the statutory time limit.
The fourth and final proposition of law propounded by appellant reads:
"The imposition of the death penalty pursuant to Ohio Revised Code Section 2929.02, et seq. for aiding and abetting the aggravated murder of John Penkowski while committing an aggravated robbery violates the Eighth and Fourteenth Amendments of the United States Constitution and Article one, Section nine of the Constitution of the State of Ohio."
In view of the decision of the United States Supreme Court in Lockett v. Ohio (1978), ___ U.S. ___, 57 L. Ed. 2d 973, which held R.C. 2929.04(B) unconstitutional for failure to permit individualized consideration of mitigating factors as required by the Eighth and Fourteenth Amendments, this court modified the judgment of the Court of Appeals by reducing appellant's sentence of death to life imprisonment. Further discussion of appellant's proposition of law is, therefore, unnecessary.
Appellant's sentence having previously been modified by this court, the judgment of the Court of Appeals as to appellant's conviction is hereby affirmed.
Judgment accordingly.
HERBERT, CELEBREZZE, W. BROWN, SWEENEY and LOCHER, JJ., concur.
LEACH, C.J., not participating.