Opinion
No. 78-1083
Decided May 23, 1979.
Criminal law — Aggravated robbery — Admissibility of evidence — Polygraph examination results — Hearsay testimony harmless error, when.
APPEAL from the Court of Appeals for Cuyahoga County.
On June 16, 1976, appellant, Henry C. Levert, was indicted on one count of aggravated robbery in violation of R.C. 2911.01. The indictment charged that appellant unlawfully and purposely did, in attempting or committing a theft offense or in fleeing immediately after such attempt or offense, have a deadly weapon or dangerous ordnance on or about his person or under his control.
The evidence adduced at trial established that on May 19, 1976, at approximately 7:00 p.m., three young men approached Bruce Sanford as he worked in his front yard in Cleveland Heights. One of the men showed Sanford a gun and ordered him to the rear of his home so they could "get in." After unsuccessfully attempting to convince the men that he lived elsewhere, Sanford complied with the gunman's demand. Upon arrival at the rear door, which was locked, an unsuccessful attempt was made to shoot the door open. The gunman then demanded Sanford's wallet, which he did not have with him. After taking Sanford's watch, the trio fled.
Thomas P. McNally, a neighbor, was driving home when he observed three men running across the Sanfords' lawn toward a parked red Oldsmobile. McNally recorded the license number of the automobile, and, upon being advised by another neighbor that these men had robbed Sanford, gave chase. After pursuing the men for several blocks, McNally observed a police cruiser nearby and informed the officers of the crime. Transmitting this information over their radio, the officers pursued the men until the suspects abandoned their vehicle and fled on foot.
Officer Timothy R. Cannon of the Cleveland Heights Police Department testified that he heard the police broadcast as he was patrolling in his cruiser nearby. He stopped his vehicle and thereafter observed three men run across the road approximately 50 feet in front of his cruiser. Officer Cannon shouted, "halt police," and was able to obtain a clear view of the suspects. The trio continued their escape.
The following day, at about 8:30 a.m., Detective Albert F. Kaminsky of the Cleveland Heights Police Department, received a telephone call from appellant. Appellant advised Kaminsky that he was aware the police were looking for him in connection with the robbery. Appellant was subsequently taken to the police station where he was identified by Sanford from photographs, in a line-up, and in a face-to-face confrontation, as one of the two men who accompanied the gun-bearing robber. Appellant was also identified by Cannon as one of the three men he saw fleeing the previous day.
Detective Kaminsky at trial testified, over the objection of appellant, that he was present at appellant's preliminary hearing where he heard appellant's counsel, in an attempt to have the aggravated robbery charge reduced to a lesser offense, state that appellant was not guilty of aggravated robbery since appellant merely stood on the curb at the scene. Kaminsky testified further that appellant was present during the preliminary hearing, and that he made no response to his counsel's admission.
Appellant's final witness at trial, Ralph J. Schaar, was a self-employed polygraph examiner, who testified that he had performed over 1,500 polygraph examinations. Upon objection by appellee to the testimony of this witness, a bench conference was conducted between counsel and the trial judge. The witness was thereafter dismissed without further questioning.
The jury found appellant guilty of aggravated robbery, and he was sentenced to a six to 25 year term in the Ohio State Reformatory.
The Court of Appeals affirmed the judgment of the trial court, and the cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. John T. Corrigan, prosecuting attorney, and Mr. De Louis Broughton, for appellee.
Stanley L. Josselson Co., L.P.A., Mr. Stanley L. Josselson, and Ms. Audrey Popil, for appellant.
Appellant avers that the compulsory process clause of Section 10 of Article I of the Constitution of Ohio guarantees him the right to have the jury hear the results of his polygraph examination. In essence, we are urged to extend the holding in State v. Souel (1978), 53 Ohio St.2d 123, 372 N.E.2d 1318, wherein the prerequisites for the admissibility of polygraph evidence are set forth. We are unconvinced that a departure from the safeguards enumerated in Souel is required or would be wise at this time.
Appellant contends further, without citing supporting authority, that the exclusion of his polygraph expert's testimony at trial violated the compulsory process clause of the Sixth Amendment to the United States Constitution. However, our research discloses no authority from which a violation of appellant's Sixth Amendment rights, under the instant circumstances, can or should be found. Cf. Washington v. Texas (1967), 388 U.S. 14.
Appellant argues also that the trial court committed prejudicial error in allowing the hearsay testimony of Kaminsky. We agree with the Court of Appeals that this testimony was erroneously admitted. See State v. Davis (1967), 10 Ohio St.2d 136, 226 N.E.2d 736; Jones v. State (1946), 184 Tenn. 128, 196 S.W.2d 491. However, upon a review of the entire record of the cause, the error is clearly harmless beyond a reasonable doubt. See Schneble v. Florida (1972), 405 U.S. 427; Chapman v. California (1967), 386 U.S. 18; State v. Bayless (1976), 48 Ohio St.2d 73, 357 N.E.2d 1035 (paragraph seven of the syllabus).
See, also, 4 Wigmore on Evidence 125 (Chadbourn Rev.), Section 1072; Notes, Tacit Criminal Admissions, 112 U. Pa. L. Rev. 210, 244-245.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.