COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 67986, 67987 : CITY OF NORTH OLMSTED : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION CAROL PISANI : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: Criminal appeals from Rocky River Municipal Court Case Nos. 94-CRB-551 and 94-CRB-640 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: DONALD P. ALBENZE, ESQ, MICHAEL TERRENCE CONWAY, ESQ. Prosecutor, City of North Olmsted Michael Terrence Conway & 23823 Lorain Road, Suite 270 Associates Co. North Olmsted, Ohio 44070 18848 Canyon Road Fairview Park, Ohio 44126 - 2 - KARPINSKI, J.: Defendant-appellant Carol Pisani appeals in these consolidated appeals from her two jury convictions for telephone harassment in the Rocky River Municipal Court. Defendant was charged with misdemeanor telephone harassment in two separate municipal court cases in April, 1994. The complaints arose out of hundreds of telephone calls defendant allegedly made on two separate days to her then separated, now former husband Glenn Pisani at his place of employment shortly before the parties' divorce. Case No. 94-CRB-551 arose from telephone calls on April 2, 1994, and Case No. 94-CRB-640 arose from telephone calls on April 22, 1994, following her arrest in the first case. The municipal court originally scheduled trial for the two cases on June 10, 1994. However, because of the unavailability of a witness, the municipal court granted defendant's motion for continuance and rescheduled trial in the two cases for June 29, 1994. Defendant subpoenaed several witnesses for trial, including her former father-in-law, Fred Pisaneschi; two Chagrin Falls school teachers, Audrey Weatherhead and Margaret Walters; and Tom Ganley of the Ganley Pontiac, Inc. These four witnesses, through their respective counsel, filed motions to quash the subpoenas prior to trial. The municipal court scheduled hearings on the motions to quash to be held prior to the June 29, 1994, trial. - 3 - The municipal court conducted a hearing on the motions to quash prior to trial. Attorney Richard Koblentz, as attorney for Pisaneschi, Weatherhead and Walters, and Russell Harris, as attorney for Tom Ganley, argued that none of the witnesses could provide relevant testimony. Defense counsel responded by stating the matters he expected to elicit from the witnesses. The municipal court denied all four motions to quash the subpoenas and the matter proceeded to trial. The prosecution presented testimony from the following seven witnesses: defendant's former husband, Glenn Pisani; Ganley automobile dealership employees Helen Hubalek, Wayne Auten, Diane Garrison, and Glen Ganley; and North Olmsted police officers Simon Cesareo and Michael Kilbane. The testimony supported the prosecution's theory that defendant repeatedly called her husband hundreds of times at his place of employment. Officers Cesareo and Kilbane were present during numerous calls received at her husband's work place while they were conducting investigations on April 2, 1994, and April 22, 1994. Defendant presented testimony from the following six witnesses: defendant; the four subpoenaed defense witnesses, Pisaneschi, Weatherhead, Walters and Tom Ganley; and defendant's mother Rose Catalano. Defendant argued that she called Glenn Pisani for legitimate purposes concerning their child Kyle on April 2, 1994, and did not make any calls on April 22, 1994, following her arrest on the charge in the first case. - 4 - The jury returned a verdict finding defendant guilty of telephone harassment in the two cases. The municipal court denied defendant's motion for new trial, journalized defendant's conviction, and sentenced defendant as appears of record in the two cases. The municipal court stayed execution of defendant's imprisonment pending appeal in the two cases, which have been consolidated by this court of appeals for disposition. Defendant's first assignment of error in the two consolidated cases follows: THE APPELLANT WAS DENIED A FAIR TRIAL WITHIN THE MEANING OF THE DUE PROCESS CLAUSE TO THE FOURTEENTH AMENDMENT AND THE SIXTH AMENDMENT FAIR TRIAL GUARANTEE WHEN THE COURT HEARD MOTIONS TO QUASH DEFENSE SUBPOENA'S FILED BY PERSONS WHO WERE NOT A PARTY OR AN ATTORNEY FOR A PARTY TO THE CASE SUB JUDICE, WHICH PERMITTED THE STATE TO GAIN UNFAIR ADVANTAGE BY DISCOVERING SECRET DEFENSE EXCULPATORY EVIDENCE IMMEDIATELY PRIOR TO TRIAL. Defendant's first assignment of error in the two consolidated cases lacks merit. Defendant contends that counsel for the four defense witnesses lacked standing to file motions to quash their subpoenas and that the municipal court's hearing on these motions improperly disclosed previously unknown and undiscoverable evidence to the prosecution. Specifically, defendant argues the prosecution learned only at the hearing--prior to trial--that she had an audio tape recording of a telephone call on April 2, 1994, and that she claimed that she lacked access to a telephone to make any calls on April 22, 1994. Defendant contends that - 5 - knowledge of this information prior to trial enabled the prosecution to present false testimony during trial. Defendant's failure to raise any constitutional questions in the trial court precludes raising them for the first time on appeal. See State v. Awan (1986), 22 Ohio St.3d 120. Moreover, even if these claims had been properly raised, defendant's claims lack merit. It is well established, contrary to defendant's argument, that subpoenaed non-party witnesses have standing to file motions to quash the subpoenas. See Foor v. Huntington Natl. Bank (1986), 27 Ohio App.3d 76. Witnesses may employ counsel to represent them and to file such motions on their behalf. Defendant has failed to demonstrate the municipal court abused its discretion by conducting a hearing on the motions to quash in this case. Once the subpoenas were properly opposed, the municipal court was required to determine whether the witnesses should be compelled to testify at trial. For the convenience of all, the hearing was scheduled to occur immediately prior to, and the same day as, trial. The record shows defendant made no request at any time that the prosecutor 1 or the subpoenaed witnesses be excluded from the hearing. 1 At oral argument defense counsel averred he did object and that the record did not reflect this objection. This court ignores such unsubstantiated claims of inaccuracy in the record when counsel has made no attempt to correct the record. On February 17, 1995, this court granted an extension of time of over four months for defendant to file Assignments of Errors and Brief. At that time this court stated Appellant was to specify any alleged errors in the record and to file a motion pursuant to App.R. 9(E). No such motion was ever filed. - 6 - Defendant's claim that she was deprived of the element of surprise because she had to reveal certain information during hearing on the motion lacks merit. The record demonstrates that defense counsel "revealed" the same information in his opening statement. Moreover, by agreement of the parties, three of the four witnesses were presented out of their normal sequence and, therefore, testified at trial before any of the prosecution witnesses. Any tactical surprise defendant hoped to obtain would have been lost without the pretrial hearing. Finally, even if the trial court's hearing on the four motions to quash revealed information to the prosecution that was not otherwise discoverable prior to trial, defendant has failed to demonstrate any prejudice. See State v. Dolce (1993), 92 Ohio App.3d 687, 699-702. That the prosecution was told defendant made an audio tape of one call on April 2, 1994, and claimed she had no access to a telephone on April 22, 1994, was harmless. The audio taped telephone conversation in which Tom Ganley offered to meet with defendant to discuss the matter on April 2, 1994, could not justify the number of defendant's calls on that date. Moreover, Officer Kilbane reached defendant on her car phone on April 22, 1994. Since this fact was included in a police report that prompted the prosecutor's decision to charge defendant (Tr. 134), the prosecution knew well in advance of the trial that defendant had access to a telephone on that date. The only surprise is that defendant would claim a defense patently contradicted by a police report. The record contains absolutely - 7 - no indication that any prosecution witness changed, much less falsified, trial testimony based on information learned from the pretrial hearing. In his brief (pp. 15-16) defense counsel claims Officer Cesareo "verbally indicated to Defendant's Counsel that he knew that the State did not know prior to trial when the Defendant had access to a telephone on 22 April 94." Defense counsel further alleges the record is inaccurate at 333-337 because it does not reflect this matter was discussed. At this point in the proceedings, this court cannot consider allegations of inaccuracies in the record. Such problems should have been addressed earlier. Supra, p.5 n.1. There is no reason, moreover, to believe Officer Cesareo had any first-hand testimony about what the "State" knew about the events of April 11, since Officer Cesareo's investigation was limited to the events of April 2. Nothing in the record indicates he had a role in the events of April 22, or that he could speak for the "State." At oral argument defense counsel stated he knew he would be unable to obtain an affidavit from Officer Cesareo and, therefore, an App.R. 9(E) motion would be fruitless. Instead, defense counsel said he would be willing to put himself on the stand if a retrial were granted. First, there is no evidence that counsel ever even tried to obtain an affidavit from Officer Cesareo. Second, any testimony counsel believed he could personally offer he could have put in - 8 - an affidavit for App.R. 9(E) purposes. Again, he failed to do so. Moreover, while Cesareo's alleged comments may be relevant to the credibility of witnesses, they do not appear to address any inaccuracies of the record. In general, the defense appears to be confusing what witnesses failed to say with what the court reporter allegedly failed to report. A word more needs to be said about this matter. Defense counsel has alleged the divorce attorney for the spouse of defendant committed "witness tampering" (Brief p. 23). This attorney filed motions to quash, on behalf of certain witnesses that the defense subpoenaed. In those motions he indicated he represented those witnesses. At the hearing on the motions, he sat at the table reserved for attorneys and represented the witnesses without any objection by the witnesses. Defense counsel claims, however, that this attorney did not represent the witnesses. In support, the defense cites testimony from the transcript (Tr. 43 and 47), in which two witnesses admit that this attorney was Mr. Pisani's attorney and that he had "approached" them. Defense counsel unreasonably assumed that when a witness admits an attorney represented Mr. Pisani, the attorney could not also represent the witnesses. Defense counsel goes much further, however, when he concludes that an attorney for a private party who approaches a witness is "tampering" with the witness. Such language suggests much more than discussing testimony and is, at the least, an intemperate remark unjustified by the circumstances. When this - 9 - comment is considered along with defense counsel references, at oral argument, to "shady" activities that were "disgusting" and his claims of inaccuracies in the record, this court must caution that such language and arguments that appear to deny the integrity of the judicial process and its participants go beyond the rhetorical license afforded to attorneys. Latitude for the understandable passions of litigants is not available to attorneys, who are limited to making arguments based on the facts. Defense counsel's arguments have gone well beyond reasonable inferences from the facts in this case. Accordingly, defendant's first assignment of error in the two consolidated cases is overruled. Defendant's second assignment of error in the two consolidated cases follows: THE APPELLANT WAS DENIED A FAIR TRIAL WITHIN THE MEANING OF THE SIXTH AMENDMENT AND FOURTEENTH AMENDMENT DUE PROCESS CLAUSE WHEN SHE DESIRED TO INTRODUCE EVIDENCE WHICH DISCREDITED THE ACCUSER'S TESTIMONY UNDER THE MIMIC AND BIAS EXCEPTION TO CHARACTER EVIDENCE AND WAS DENIED THE OPPORTUNITY BY THE COURT TO CHAMPION HER OWN GOOD CHARACTER. Defendant's second assignment of error in the two consolidated cases lacks merit. Defendant contends the trial court improperly limited her cross-examination of Glenn Pisani concerning prior telephone harassment charges against her and improperly permitted the prosecution to cross-examine her concerning her visitation rights. As noted above, defendant's failure to raise any constitutional arguments in the trial court warrants rejecting - 10 - these claims. State v. Awan, supra. Moreover, even if defendant had properly raised these claims, they lack merit. It is well established that a trial court's determination whether to admit or exclude evidence will not be reversed on appeal absent timely objection and showing an abuse of discretion resulting in material adverse prejudice. Evid.R. 103; Crim.R. 52; State v. Lundy (1987), 41 Ohio App.3d 163, 165-166 n.1. The purpose for requiring an objection is to direct the court's attention to, and provide an opportunity to correct, the claimed error. Defendant's generalized objections to the municipal court's rulings at trial did not raise any specific grounds and failed to adequately raise the claims of error she now asserts for the first time in her brief on appeal. Moreover, defendant has failed to demonstrate the trial court abused its discretion concerning the challenged evidentiary rulings. As noted by the municipal court, the telephone harassment charges in these two cases arose from incidents on April 2, 1994 and April 22, 1994. Evid.R. 403 authorized the court to exclude evidence concerning the truth or falsity of similar prior charges because of the tendency to confuse or mislead the jury. Cross-examination of defendant concerning her visitation rights was relevant to her claim that the telephone calls were justified by concerns about the children in Glenn Pisani's custody. Accordingly, defendant's second assignment of error in the two consolidated cases is overruled. - 11 - Defendant's third assignment of error in the two consolidated cases follows: THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO GRANT PLAINTIFF'S [SIC] MOTION FOR NEW TRIAL. Defendant's third assignment of error in the two consolidated cases lacks merit. Defendant's third assignment of error generally rehashes the identical arguments made in her first and second assignments of error. Defendant also argues she is entitled to a new trial because of juror misconduct in considering newspaper articles which were not introduced into evidence. Based on our review of the record, defendant has failed to show any error. It is well established that a trial court's determination whether to grant a new trial will not be reversed on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St.3d 7, syllabus paragraph one. As noted above, defendant's claims concerning the pretrial motions to quash and municipal court's evidentiary rulings lack merit. Accordingly, the municipal court did not abuse its discretion by denying defendant's motion for new trial on these grounds. Defendant's sole remaining contention of "juror misconduct" is based on her unnotarized affidavit stating that she overheard jurors refer to a newspaper article about her during deliberations. However, even if this statement could be used to impeach the jury verdict, the trial court properly ignored defendant's affidavit because it was not properly notarized. State ex rel. Coulverson v. Ohio Adult Parole Authority (1991), - 12 - 62 Ohio St.3d 12, 14. It is well established that a trial court may summarily deny a motion for new trial which alleges misconduct when the motion is not supported by admissible evidence. Toledo v. Stuart (1983), 11 Ohio App.3d 292. Accordingly, defendant's third assignment of error in the two consolidated cases is overruled. Judgments affirmed. - 13 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Rocky River Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SARA J. HARPER, P.J., and DAVID T. MATIA, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and .