Summary
In State v. Diehl, 64 Ohio St.2d 179, 414 N.E.2d 410 (1980), two men armed with a gun and wearing masks broke into a woman's home and robbed her of $800 and a coin collection.
Summary of this case from Turner v. StateOpinion
No. 80-479
Decided December 23, 1980.
Criminal law — Aggravated robbery — Complicity — Conviction reversed, when — Based on uncorroborated testimony of accomplice.
APPEAL from the Court of Appeals for Clark County.
On October 26, 1977, the home of Frances Byerman was broken into by two men, one armed with a gun, wearing stocking masks on their faces. The men stole approximately eight hundred dollars and a coin collection from the Byerman residence. Although the Clark County Sheriff's Department was called, no arrests were made.
About a year later, Benjamin McGhee confessed to his mother, Frances Byerman, that he had been involved in the robbery of her home. Subsequently, McGhee testified before the Clark County Grand Jury. His testimony was that he participated in the robbery of his mother's house. Additionally, he implicated the appellee, William Diehl, and Mike Forrest as fellow participants. On the basis of McGhee's testimony, the grand jury indicted appellee for one count of aggravated robbery (R.C. 2911.01).
On April 17, 1979, appellee's trial began in the Court of Common Pleas of Clark County. After jury selection and opening statements, the state, appellant herein, called Benjamin McGhee as a witness. McGhee refused to answer questions about the robbery, and the court, after directing him to answer, held him in contempt. The trial was recessed until April 27, 1979. On that day the procedure was repeated. McGhee refused to testify, and the court held him in contempt. The trial was recessed until May 2, 1979.
On May 2, 1979, McGhee again refused to answer questions. At that point, the court, over appellee's objection, allowed the transcript of McGhee's testimony before the grand jury to be read to the jury.
After the transcript was read, appellee and appellant were given, respectively, the opportunity to cross and redirect McGhee. On redirect, McGhee denied that he had implicated appellee before the grand jury. Subsequently, the state called Frances Byerman. She testified, over appellee's objection, that her son told her that appellee participated in the robbery.
At the conclusion of the state's case, appellee in effect moved for a judgment of acquittal. Appellee argued that there was no evidence corroborating McGhee's testimony, as required by R.C. 2923.03(D) . The court overruled the motion and eventually the case went to the jury. The jury returned a guilty verdict.
R.C. 2923.03(D) reads:
"No person shall be convicted of complicity under this section solely upon the testimony of an accomplice, unsupported by other evidence."
On appeal, the Court of Appeals for Clark County reversed. The court ruled in essence that both the transcript of McGhee's grand jury testimony and Frances Byerman's testimony were inadmissible hearsay. Additionally, the court ruled that even if the testimony was admissible, there was no corroborative evidence as required by R.C. 2923.03(D).
The cause is before this court pursuant to the allowance of a motion for leave to appeal.
Mr. James A. Berry, prosecuting attorney, and Ms. Catherine B. Wilder, for appellant.
Mr. J. Tullis Rogers and Ms. Elizabeth Manton, for appellee.
We agree with the Court of Appeals that the accusations of McGhee, contained in the transcript of his grand jury testimony, and admitted in subsequent testimony, were not corroborated, as required by R.C. 2923.03(D). Therefore, we need not decide whether either the transcript or Frances Byerman's testimony was admissible.
R.C. 2923.03(D) changed the common law in Ohio. It states that no conviction may be based solely upon the uncorroborated testimony of an accomplice.
Before R.C. 2923.03(D) was enacted, a conviction could be based solely upon the uncorroborated testimony of an accomplice. State v. Flonnory (1972), 31 Ohio St.2d 124, paragraph three of the syllabus.
In State v. Pearson (1980), 62 Ohio St.2d 291, at paragraph two of the syllabus, we stated:
"In order for the prosecution to satisfy the corroboration requirement of R.C. 2923.03(D), independent evidence must support an accomplice's testimony, and must tend to connect the accused with the alleged crime or must tend to identify the accused as a guilty actor."
The state argues that McGhee's grand jury testimony is corroborated in two instances. First, the state contends that Frances Byerman's testimony is corroborative. Even assuming her testimony to be admissible, we disagree because her testimony was not independent. Rather, it was merely a restatement of what McGhee told the grand jury. To say that such testimony is corroborative would allow an accomplice to corroborate his own testimony.
Second, the state argues that the testimony of Steven Cooley corroborates McGhee's testimony because it shows that he had a large amount of money on the day of the robbery. Cooley, the used car manager at Downtown Used Cars, testified that the appellee purchased a used car from him on October 26, 1977, the day of the robbery. Further, he testified that appellee paid $319.90 in cash as a down payment. However, on cross-examination, he said that appellee had to borrow at least part of the down payment. Cooley's testimony does not establish a sufficient connection between the appellee and the robbery. Nor does it identify him as a guilty actor. State v. Pearson, supra.
As there is no evidence in the record which corroborates McGhee's testimony, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and DOWD, JJ., concur.