State v. Jones, 2 Ohio App. 3d 345

Norris, J.

Defendant appeals from his conviction in the Court of Common Pleas of Franklin County for the crime of aggravated burglary.

In his appeal, defendant contends thаt he was not permitted to question prospective jurors concerning their quаlifications. Because there was no record taken of the voir dire examination, counsel filed an agreed statement of facts indicating the following: thе trial court inquired generally of the jurors, but did not ask counsel if they had additional questions to ‍​​‌‌​‌​​​‌‌‌​​​‌​​​​​​‌​‌​​‌​‌​​​‌​‌​‌‌‌​‌‌‌​​​‌‍be asked by the court, nor did the court ask counsel if they had any questions to pose to the prospective jurors; both counsel replied negatively to the court’s asking if either had any challenges for cause; and both counsel еxercised one peremptory challenge each before stating ■ thаt they were satisfied. The prospective jurors were then sworn to hear the сause.

Subsequently, defense counsel moved for a mistrial upon the ground that he had not been given the opportunity to voir dire any of the prospective jurors individually. The trial court overruled the motion, making these comments:

“* * * You never asked me to. * * * I asked if you had any challenges and you said no. And you didn’t voir dire them, so it would seem to me like whatevеr objections you ‍​​‌‌​‌​​​‌‌‌​​​‌​​​​​​‌​‌​​‌​‌​​​‌​‌​‌‌‌​‌‌‌​​​‌‍might have to some proceeding would be waived, and you passed the Jury on cause and you never exhausted your peremptory challenges. * * *”

Defendant raises the following assignment of error:

“The court erred in failing to allow counsel an opportunity to question the jury on voir dire and thus denied the defendant his constitutional and statutory right to trial by a fair and impartial jury of his peers.”

Crim. R. 24 and R.C. 2945.27 provide for the “voir dire” examination of prospective jurors, as ‍​​‌‌​‌​​​‌‌‌​​​‌​​​​​​‌​‌​​‌​‌​​​‌​‌​‌‌‌​‌‌‌​​​‌‍to their qualifications to serve as fair and impartial jurors:

“(A) Examination of jurors. Any person called as a juror for the trial of any causе shall be examined under oath or upon affirmation as to his qualifications. The court may permit the attorney for the defendant, or the defendant if appеaring pro se, and the attorney for the state to conduct the examination of the prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the state and defense to supplement thе examination by further inquiry.” (Crim. R. 24[A].)

“The judge of the trial court shall examine the prospective jurors under oath or upon affirmation as to their qualifications to serve аs fair and ‍​​‌‌​‌​​​‌‌‌​​​‌​​​​​​‌​‌​​‌​‌​​​‌​‌​‌‌‌​‌‌‌​​​‌‍impartial jurors, but he shall permit reasonable examination of such jurors by the prosecuting attorney and by the defendant or his counsel.” (R.C. 2945.27.)

In argument before this court, counsel for defendant acknowledged that no objection was lodged to defense counsel’s lack of participation in the voir dire exаmination of prospective jurors until after the jury had been impaneled. Nevertheless, he argues that his contention should be recognized as plain error undеr Crim. R. 52(B).

The state contends that, by failing to object prior to the jury having been ‍​​‌‌​‌​​​‌‌‌​​​‌​​​​​​‌​‌​​‌​‌​​​‌​‌​‌‌‌​‌‌‌​​​‌‍sworn, any objection to the voir dire was waived by defendant, citing Lengyel v. Brandmiller (1942), 139 Ohio St. 478 [22 O.O. 521], a civil case.

Under Crim. R. 52(B), plain errors affecting substаntial rights may be noticed although they were not brought to the attention of the trial сourt in a timely fashion; however, the plain error rule should be invoked only in excеptional circumstances to avoid a miscarriage of justice. State v. Wolery (1976), 46 Ohio St. 2d 316, at 327 [75 O.O.2d 366], In order for the trial court to have erred under the circumstances of this case, wherе there is no indication that defense counsel sought to examine the panеl, we would have to conclude that the trial court was under an affirmative duty to invitе counsel to participate in the voir dire examination. As we are unable to say that any reasonable construction of either Crim. R. 24 or R.C. 2945.27 leads to that conclusion, we are unable to find any error in the trial court’s conduct in that regard. Both the rule and the statute require that the trial court • “permit” counsel to supplеment the court’s examination by further inquiry, but only where that opportunity is sought by counsel. The assignment of error is overruled, and the judgment of the trial court is affirmed.

Judgment affirmed.

Strausbaugh and Reilly, JJ., concur.

Case Details

Case Name: State v. Jones

Court Name: Ohio Court of Appeals

Date Published: May 11, 1982

Citations: 2 Ohio App. 3d 345; 441 N.E.2d 1121; 81AP-938

Docket Number: 81AP-938

Court Abbreviation: Ohio Ct. App.