Summary
In Sargent, we emphasized that "the trial judge was careful to limit the testimony to what the patrolman observed of appellee's conduct during the call; no testimony as to the content of that conversation was allowed."
Summary of this case from State v. MilliganOpinion
No. 74-95
Decided February 5, 1975.
Criminal procedure — Evidence — R.C. 2935.20 — Right to counsel — Accused charged with driving while intoxicated — Communicating with attorney by telephone — Testimony concerning witness's observation of conduct — Admissibility — Charge to jury — R.C. 2945.04 — Reasonable doubt — Statutory charge amplified — Not prejudicial, when — Driving while intoxicated — Refusal to submit to breathalyzer test — R.C. 4511.19 — Charge on presumptions, prejudicial, when.
1. Where a defendant who is charged with operating a vehicle while under the influence of alcohol (R.C. 4511.19) is allowed to communicate with his attorney by telephone pursuant to R.C. 2935.20, and when his conduct is observed during that communication with his knowledge and without complaint or a request for privacy, testimony offered concerning such conduct does not deprive the defendant of the effective assistance of counsel.
2. In a criminal case, where the trial court's charge to the jury amplifies upon the statutory definition of reasonable doubt, mandated by R.C. 2945.04, the complained of amplification must be erroneous and prejudicial to the complaining party before the judgment of the trial court will be disturbed.
3. Where a defendant who is charged with operating a vehicle while under the influence of alcohol (R.C. 4511.19) refuses to submit to a breathalyzer test, and the trial court instructs the jury on the presumptions in R.C. 4511.19 concerning the alcohol content which is determined by such a test, that instruction is inapplicable to the case which the evidence tends to establish and is prejudicial to the defendant.
APPEAL from the Court of Appeals for Wood County.
Appellee, Glenn E. Sargent, was arrested by State Highway Patrolman Miller, who observed him driving and determined that he was driving while intoxicated, contrary to R.C. 4511.19.
Sargent was transported to the State Highway Patrol post for a breathalyzer test. When asked if he would submit to the test he stated that he wanted to call his attorney. The patrolman who made the arrest provided Sargent with a telephone book and allowed him to make the call. After the call was completed, Sargent refused to take the examination, but did submit to four coordination tests.
At trial, Patrolman Miller and Sergeant Vargo, who also observed the appellee at the Patrol Post, both opined that appellee was under the influence of alcohol at the time in question. In addition, Patrolman Miller described his observations of Sargent during a 25-minute telephone conversation and during the coordination tests. A videotape of these proceedings was available, but was not admitted in evidence at trial because of defense objections.
The trial judge gave his charge to the jury, which included a reading of R.C. 4511.19 in its entirety. He then charged on reasonable doubt, reading the statutory definition as is required in R.C. 2945.04, and further amplified that definition.
R.C. 4511.19 reads:
"No person who is under the influence of alcohol or any drug of abuse shall operate any vehicle, streetcar, or trackless trolley within this state.
"In any criminal prosecution for a violation of this section, or ordinance of any municipality relating to driving a vehicle while under the influence of alcohol, the court may admit evidence on the concentration of alcohol in the defendant's blood at the time of the alleged violation as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance withdrawn within two hours of the time of such alleged violation. When a person submits to a blood test at the request of a police officer under Section 4511.191 of the Revised Code, only a physician or a registered nurse shall withdraw blood for the purpose of determining the alcoholic content therein. This limitation does not apply to the taking of breath or urine specimens. Such bodily substance shall be analyzed in accordance with methods approved by the Director of Health by an individual possessing a valid permit issued by the Director of Health pursuant to Section 3701.143 of the Revised Code. Such evidence gives rise to the following:
"(A) If there was at that time a concentration of less than ten hundredths of one per cent by weight of alcohol, but more than five hundredths of one per cent by weight of alcohol, in the defendant's blood, such fact shall not give rise to any presumption that the defendant was or was not under the influence of alcohol, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.
"(B) If there was at that time a concentration of ten hundredths of one per cent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was not under the influence of alcohol.
"(C) If there was at the time a concentration of five hundredths of one per cent or less by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was not under the influence of alcohol.
"Upon the request of the person who was tested, the results of such test shall be made available to him, his attorney, or agent, immediately upon the completion of the test analysis.
"The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a police officer, and shall be so advised. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a police officer."
"The Legislature of Ohio has defined the phrase `beyond a reasonable doubt,' and by statute has enjoined on the trial court the duty of reading this statute to the jury. `Reasonable Doubt' is defined as follows:
"`It is not a mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.'
"A reasonable doubt may be said to be an honest uncertainty existing in the mind of a candid, impartial, diligent juror after a full and fair consideration of all the evidence, with an honest purpose to ascertain the truth, irrespective of the consequences which may follow the verdict. It is not a mere captious or speculative doubt, one voluntarily excited in the mind in order to avoid the rendition of a disagreeable verdict. It is not a doubt created by any feeling of passion or sympathy or opinion or policy, but based upon the evidence or lack of evidence.
"You are bound to follow the instructions of the court as to all matters, and you should not permit yourselves to create in your minds any doubt that may arise from any feeling which you may have with respect to any feature of this case which is not founded upon the evidence or lack of evidence, and the law as the court now gives it to you. Such a doubt would be considered in law merely a captious and unreasonable one. To acquit upon trivial supposition or remote conjecture is a violation of your oath and an offense of great magnitude against the interests of society, directly tending to the disregard of the obligation of the judicial oath and countenancing a disparagement of justice and the encouragement of malefactors.
"Whether or not proof of guilt is established beyond a reasonable doubt need not necessarily be shown by the greater number of witnesses, but may be determined by the jury by the greater weight of the evidence which convinces the jury beyond a reasonable doubt.
"You will be required to find that a reasonable doubt exists, if the material facts may fairly be reconciled with innocence. The entire evidence should be examined carefully and conscientiously, and if that convinces you of the defendant's guilt beyond a reasonable doubt, it is your duty to say so. But if, after such full and fair consideration, the jurors are not so convinced, but find there are only strong probabilities of guilt, under such circumstances a reasonable doubt is said to exist, and such reasonable doubt would entitle the defendant to an acquittal. A mere preponderance or overweight of the evidence, is not sufficient in a criminal case, as it is in a civil case."
The jury returned a verdict of guilty, and judgment was entered upon the verdict.
Upon appeal, the Court of Appeals reversed the judgment of the trial court because that court had erred in allowing Patrolman Miller to testify concerning his observation of the telephone conversation between appellee and his attorney, holding that to be a violation of appellee's right to counsel. The Court of Appeals also found that prejudicial error had occurred when the trial court expanded on the statutory definition of reasonable doubt and when that court read to the jury R.C. 4511.19 in its entirety, even though no evidence of the percentage of alcohol in appellee's blood had been introduced at trial.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Chester H. Marcin, for appellant.
Mr. Robert W. Scott, for appellee.
This appeal calls upon us to decide whether, when the trial court allowed the patrolman to testify concerning his observation of appellee during a telephone conversation with his attorney, appellee's right to effective counsel was violated.
Appellant argues that there is no such constitutional right involved in the present situation and that the requirements of R.C. 2935.20 were met.
R.C. 2935.20, in pertinent part, provides:
"After the arrest, detention, or any other taking into custody of a person, with or without a warrant, such person shall be permitted forthwith facilities to communicate with an attorney at law of his choice who is entitled to practice in the courts of this state, or to communicate with any other person of his choice for the purpose of obtaining counsel. * * * Such person shall have a right to be visited immediately by any attorney at law so obtained who is entitled to practice in the courts of this state, and to consult with him privately. * * *."
There is no evidence in the record that appellee's attorney attempted to visit him, nor is there evidence that appellee asked to conduct his telephone conversation in private. In addition, the trial judge was careful to limit the testimony to what the patrolman observed of appellee's conduct during the call; no testimony as to the content of that conversation was allowed. Since the patrolman was present in the room and was not asked to leave during the entire conversation, there can be no question of eavesdropping or interference. See cases collected in 18 L. Ed. 2d 1420, and an annotation, 5 A.L.R. 3d 1269.
Appellee argues that the following testimony of Patrolman Miller concerned a substantive portion of the telephone conversation:
"A. * * * He [defendant] mumbled a lot * * * He couldn't appear to understand, you know, kept going on —
"* * *
[By the prosecutor]
"Q. He didn't remember or he didn't understand something?
"* * *
"A. He acted very confused during the whole conversation, kept asking whoever was on the other end to repeat.
"* * *
"A. Okay. He didn't know his own phone number at one point in it. He recited four or five numbers and says, it's in the book."
We cannot agree. The testimony seems only to demonstrate a type of conduct which might be described as befuddled. No substantive portion of the conversation was related.
A thorough reading of the record fails to disclose any violation of either the appellee's statutory or constitutional right to counsel.
The fact that the conversation was videotaped does not seem to us to have any significance. That tape was not introduced in evidence and its only effect was to allow Patrolman Miller to refresh his memory on conduct which he had personally observed. But see, e.g., State v. Cory (1963), 62 Wn.2d 371, 382 P.2d 1019.
Consequently, we find that no deprivation of effective counsel occurred in this case.
The Court of Appeals found that "* * * in instructing the jury, the trial court, though not necessarily limited to giving the statutory definition set forth in Sec. 2945.04, R.C. * * * the court, in going beyond the statutory definition, must use extreme care not to prejudice either party. * * *"
We agree with that statement. We also agree with the Court of Appeals that the charge in question was prejudicial.
Consideration must be given to R.C. 2945.83, which, in pertinent part, provides:
"No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court because of:
"* * *
"(D) A misdirection of the jury unless the accused was or may have been prejudiced thereby * * *."
The Court of Appeals cites four cases in its opinion. McGoon v. State (1931), 39 Ohio App. 212, held that the General Assembly had provided a definition of reasonable doubt which mandated that the definition be read, but there was no attempt to limit the court to the statutory definition. The court then went on to find that the additional language added by the trial court was in no way prejudicial to the defendants.
In State v. Theisen (1952), 91 Ohio App. 489, the trial court read the statutory charge and then concluded: "If you are not so fully satisfied but find there are only strong probabilities of guilt, your only safe course is to acquit" (emphasis added), and the Court of Appeals rightfully found that statement prejudicial. The Court of Appeals continued: "* * * In as much as the Legislature has defined reasonable doubt and in no uncertain terms requires the court to give such definition to the jury, no purpose is to be gained by the court endeavoring to amplify or re-emphasize the definition. Since the quoted language is somewhat contradictory of the statutory definition, it is error prejudicial to the defendant."
State v. Stubbs (1958), 107 Ohio App. 382, is of similar import, finding that the additional charge was inconsistent with the statutory definition, and thus prejudicial to defendant.
Finally, State v. Forte (1971), 29 Ohio App.2d 24, holds, in the second paragraph of the syllabus, that:
"In a criminal case, the court's charge to the jury on reasonable doubt is necessarily limited to giving the statutory definition set forth in R.C. 2945.04, and it is prejudicial error to give additional instructions amplifying the statutory definition." However, a careful reading of the opinion in Forte reveals that the additional charge was erroneous, as it was stated.
We disapprove of the rulings in the above cases to the extent that they hold that any amplification of the statutory definition of reasonable doubt, regardless of its propriety, is prejudicial error. Error, in order to be construed as prejudicial error, must be an incorrect statement of the law.
Our examination of the complete charge given in this case reveals prejudicial error. The last two sentences read:
"* * * But if, after such full and fair consideration, the jurors are not so convinced, but find there are only strong probabilities of guilt, under such circumstances a reasonable doubt is said to exist, and such reasonable doubt would entitle the defendant to an acquittal. A mere preponderance or overweight of the evidence, is not sufficient in a criminal case, as it is in a civil case." (Emphasis added.)
The language first emphasized above is similar to the language complained of in State v. Theisen, supra, since it is not clear that merely because defendant is "entitled" to an acquittal the jury is required to return that verdict. In addition, the weight of evidence required in a civil case could serve to confuse the jury. Therefore, we agree with the Court of Appeals that the charge on reasonable doubt was prejudicial.
Finally, the Court of Appeals decided that a reading of R.C. 4511.19 in its entirety constituted prejudicial error. That court found the charge improper because it injected issues not raised by the evidence and was likely to confuse the jury. We agree.
The instruction complained of concerned the admission of evidence on the concentration of alcohol in defendant's blood, urine, breath, or other bodily substance, together with the presumptions which are raised by the various percentages of concentration. This charge was given even though appellee refused to submit to the breathalyzer test. That charge could be of no possible help to the jury and might well have been confusing. See Bandy v. State (1921), 102 Ohio St. 384. See, also, 15(A) Ohio Jurisprudence 540, Criminal Practice and Procedure, Section 451.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, W. BROWN and P. BROWN, JJ., concur.