State v. Harrison , 2016 Ohio 7579 ( 2016 )

[Cite as State v. Harrison, 2016-Ohio-7579.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-150642
C-150643
Plaintiff-Appellee, : C-150645
TRIAL NOS. 14CRB-28913
vs. : 14CRB-28917
14CRB-28919
ROBERT HARRISON, :
Defendant-Appellant. : O P I N I O N.
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: November 2, 2016
Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Heidi
Rosales, Senior Assistant City Prosecutor, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Marguerite Slagle,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA SIEVE HENDON, Presiding Judge.
{¶1} Following a jury trial, Robert Harrison was convicted of assaulting
three women. In this appeal, he argues that the trial court interfered with his right to
present a defense when it warned a defense witness against perjuring herself.
However, we conclude that no deprivation of due process occurred because the
court’s perjury admonition was not so intimidating that it prevented the witness
from testifying in Harrison’s behalf. We affirm the judgment of the trial court.
{¶2} Harrison and his girlfriend, Jean Gaines, had both been charged with
assault, stemming from the same incident. Gaines had been tried first. She had
testified at her own trial and had been acquitted.
{¶3} At Harrison’s trial, before Gaines was called to testify for the defense,
the court advised her outside of the jury’s presence:
If it’s proven that you testified untruthfully in this proceeding,
or testified untruthfully in another proceeding in which you were
under oath, the possibility [is] that you could be charged with perjury.
Perjury is a criminal offense for which there is a possibility of jail time
and I just need to advise you of that.
If you want to talk to counsel before testifying in that regard, we
can make an attorney available from the public defender’s office. That
is completely your decision, though, okay.
So I just want to make sure that you understand the
consequences really for your own benefit. Do you understand that?
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Gaines requested an attorney, and the court obtained a public
defender for her. Then, after consulting with counsel, Gaines testified for the
defense.
{¶5} At the conclusion of the trial, Harrison was convicted and sentenced
accordingly. On appeal, he argues in a single assignment of error that the trial court
erred by giving a perjury admonition to Gaines. He contends that, by doing so, the
court substantially interfered with her testimony, in violation of his right to due
process.
{¶6} Due process guarantees a criminal defendant the right to establish a
defense by presenting his own witnesses. Washington v. Texas, 388 U.S. 14, 19, 87
S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). Merely warning a defense witness of the
consequences of perjury does not, in and of itself, violate a defendant’s due-process
rights. See United States v. Pierce, 62 F.3d 818, 832 (6th Cir.1995). But a
defendant’s rights may be violated by unnecessarily strong admonitions against
perjury that are aimed at discouraging defense witnesses from testifying. Id.; Webb
v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972). To establish such a
violation, the defendant must show that the admonition substantially interfered with
the witness’s free and voluntary choice to testify. Pierce at 833; United States v.
Foster, 128 F.3d 949, 953 (6th Cir.1997).
{¶7} In this case, Harrison has failed to demonstrate that the trial court’s
perjury admonition interfered with Gaines’ free and voluntary choice to testify. The
warning itself was not so strong that it “reache[d] the level of intimidation.” See
State v. Halley, 93 Ohio App. 3d 71, 79, 637 N.E.2d 937 (10th Dist.1994). On the
contrary, even after the admonition, Gaines chose to testify in Harrison’s defense.
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OHIO FIRST DISTRICT COURT OF APPEALS
Moreover, the court’s provision of counsel for Gaines ensured that her decision to
testify had been “made voluntarily, in her own interest, rather than being the product
of judicial coercion.” See United States v. Santiago-Becerril, 130 F.3d 11, 24 (1st
Cir.1997). Consequently, we hold that Harrison’s due-process right to present a
witness in his own defense was not compromised by the trial court’s perjury
admonition. Accordingly, we overrule the sole assignment of error and affirm the
trial court’s judgments.
Judgments affirmed.
CUNNINGHAM and STAUTBERG, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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