State v. Asher , 112 Ohio App. 3d 646 ( 1996 )

I agree that the evidence is insufficient to support Asher's conviction and, therefore, join the court in its judgment reversing the conviction and discharging Asher. I cannot, however, subscribe to the lead opinion's theory of witness coercion or its exclusionary remedy.

This court has found that the trial court improperly convicted Asher on insufficient evidence. See Jackson v.Virginia, 443 U.S. at 316, 99 S.Ct. at 2787, 61 L.Ed.2d at 571. Where such a firmly established constitutional basis as insufficiency of the evidence exists for overturning a conviction, an intermediate appellate court's expression of a novel, and unsupported, theory mandating the same result is unnecessary to the resolution of the case. The lead opinion's preoccupation with the second assignment of error, in reality, transforms into nothing more than an adventure with obiterdictum. See, e.g., Cosgrove v. Williamsburg of Cincinnati Mgt.Co., Inc. (1994), 70 Ohio St.3d 281, 283, 638 N.E.2d 991, 993.

The lead opinion relies upon the reasoning found in State v.Bradley, supra. Bradley and the lead opinion's analysis, however, are unsupported overextensions of a well-settled rule of law. A criminal defendant's right to a fair trial, guaranteed by the Sixth Amendment and the Due Process Clause, is violated when either the judge or the prosecutor by threats or accusations drives the defendant's witness — not the state's witness — from the stand. Webb v. Texas (1972), 409 U.S. 95, 98, 93 S.Ct. 351,353, 34 L.Ed.2d 330, 333; United States v. Pierce (C.A. 6, 1995),62 F.3d 818, 832; State v. Halley (1994), 93 Ohio App.3d 71, 79,637 N.E.2d 937, 942. Because driving a defendant's witness from the stand denies the defendant's right to compulsory process of witnesses, the result of the trial is inherently unfair, and the proper remedy is reversal of the conviction and remand to the trial court. Webb v. Texas, 409 U.S. at 98, 93 S.Ct. at 354,34 L.Ed.2d at 333; State v. Halley, 93 Ohio App.3d at 79,637 N.E.2d at 942. Here, Haunz-Asher was called as a witness by the state and not by the defense.

The lead opinion's unfounded extension of Webb v. Texas is further demonstrated by its selection ex nihilo of an exclusionary remedy. It holds that no weight can be given the coerced witness's testimony. Adoption of this remedy leads to untenable consequences at trial. Improper threats or accusations made against a defense witness by a trial judge, for example, would lead to a windfall for the prosecution by requiring the exclusion of the testimony of the defendant's witness. See,e.g., State v. Pollard Carr III (Feb. 26, 1992), Hamilton App. Nos. C-910034 and C-910035, unreported, 1992 WL 37745 (trial judge sua sponte interrogates defense witness on unrelated issue of whether she is a welfare cheat).

The theory advanced by the lead opinion is inapplicable to the facts of this case. Here, as in State v. Halley, the witness "stood by her testimony despite the prosecutor's efforts."93 Ohio App.3d at 79, 637 N.E.2d at 942. Asher has not shown that the prosecutor's rough treatment of Haunz-Asher had any substantial effect on her testimony, although it undoubtedly disturbed her. In reality, Haunz-Asher, referred to in the lead opinion as the victim, initiated this process by filing a criminal complaint and then refusing to cooperate. I fail to comprehend how Asher was denied compulsory process in violation of the Sixth Amendment.

As the lead opinion acknowledges, a prosecuting attorney may bring a charge before the grand jury so long as there is probable cause to believe that the accused has committed an offense defined by statute. Bordenkircher v. Hayes, supra. Once the probable cause threshold has been met, the decision concerning which charges to present to the grand jury is a matter entirely within the prosecutor's discretion. United States v.Batchelder (1979), 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755.Following a grant of immunity, the prosecutor would still havethe sole discretion to subpoena an accused to testify before thegrand jury to ascertain whether the crimes of perjury,falsification, or tampering with evidence have been committed.R.C. 2945.44(C); 1 Anderson's Ohio Criminal Practice andProcedure (2 Ed. 1995), 232, Section 52.103. Absentirregularities in the selection of the grand jury, it is not anappellate court's business to meddle.

Since Haunz-Asher is not an accused in this appeal, the record is silent as to any collateral crime she may have committed arising from these proceedings, if she was charged or indicted, or if she was granted immunity in a separate proceeding by a judge of the court of common pleas. The burden is on Asher to perfect the record on appeal by including these docket entries and transcripts. App.R. 9(B); Knapp v. EdwardsLaboratories (1980), 61 Ohio St.2d 197, 199, 15 O.O.3d 218, 219,400 N.E.2d 384, 385. On the state of the record certified to us, whether the prosecutor lacked probable cause to initiate grand jury proceedings is not demonstrated.

I, therefore, join the court in its judgment and in its analysis of the fourth assignment of error only.