252 N.E.2d 305 | Ohio Ct. App. | 1969
The defendant was convicted on two counts of murder one: murder in the first degree, Section
The defendant appealed, noting five assignments of error:
"I. The trial court erred in admitting evidence, over defense objection, of two other assaults and robberies, both of which were purportedly committed by the defendant within three weeks of the slaying of Patrolman Huber, for *117 the purpose as specified by the prosecution of establishing the murder weapon in the possession of the defendant at the time of the slaying when this element of proof had already been established by the prosecution without such evidence of other crimes and when this element was never disputed by the defense.
"II. The trial court erred in refusing to grant defendant's motion for mistrial or in failing to take other corrective action to eradicate the prejudice caused to the defendant by the prosecution's comment in closing argument respecting matters which had previously been properly excluded by the court.
"III. The trial court erred in sustaining the prosecution's challenge for cause, over defense objection, to eight prospective jurors and one prospective alternate because of either their general opposition to capital punishment or their expressed doubt and hesitation about their ability to return a verdict carrying the death penalty in this case without further inquiry whether this general opposition or doubt was tantamount to an automatic rejection of the death verdict in any case.
"IV. The trial court erred in refusing to grant defendant's motion for mistrial or in failing to take other corrective action to eradicate the prejudice caused to the defendant by the prosecutor's demand for the death penalty in closing argument coupled with their representation that they had never before overtly made such a demand in over forty years of trying cases and in over 800 other murder cases.
"V. The trial court erred in overruling defendant's motion to suppress his in-custody statement made to a press reporter on the grounds that the questioning leading to this statement was not initiated by law-enforcement officers without first determining whether defendant's statement to the press reporter was in any way influenced or tainted by earlier in-custody statements to law-enforcement officers."
All assignments of error have been carefully considered in conjunction with the record in this case. *118
"Mr. Szemer: Your Honor, at this stage of the proceedings, at issue is the possession of the gun, which has been marked for identification2 as an exhibit.
"The prosecutor feels that it is relevant. All evidence is relevant to the ownership and possession of this gun, and their witness will testify he had the gun until April, but from April to May 11th he did not have possession. It was his gun and he was not in the vicinity of 89th and Superior.3
"We feel it is relevant in this case now to show possession of this gun.
"The Court: Do I understand is the prosecutor telling the court the purpose of this witness testifying is he will identify this weapon that is an exhibit in this case as previously beinghis weapon? [Emphasis added.]
"Mr. Szemer: That is correct, your Honor.
"The Court: Does the prosecution intend to tie this weapon in with the defendant? *119
"Mr. Szemer: Yes, your Honor.
"The Court: Then the objection is overruled."4
Whatever justification the previous-acts evidence may have had in relation to possession of the gun, it was obliterated by earlier testimony by the state's own witnesses, Police Officers Donald Bagnell and Paul McHugh. The gun in question, state's Exhibit 16, had been admitted during Bagnell's testimony prior to witness Ashcroft's testimony (R 1138). *120
Bagnell told of his acquisition of state's Exhibit 16, the .38 caliber Smith Wesson:
"Q. Now, what did he do from that moment on, as he came out? Take it easy. A. He put his hands on top of the automobile.
"Q. Yes, when he did that what did you do? A. I came around the front of the automobile.
"Q. You came around the front of the automobile. And then what did you do with Watson? A. At that time I noticed a revolver laying in the gutter so I grabbed him and pushed him up against the tree, away from it. *121
"Q. Now, where was the gun that you saw in the gutter? How far was the gun from Watson? A. At his feet.
"* * *
"Q. And who picked up the gun? A. I did.
"* * *
"Q. Officer, I will hand you what has been marked for identification state's Exhibit 16, and will you examine that, sir. Have you seen that gun before? A. I have.
"Q. Where was it the first time you saw it? A. This was laying in the gutter at the defendant's feet.
"Q. What type of gun is that? A. A .38 caliber Smith and Wesson Revolver." (R 1137-1138)
The exhibit was then offered and received in evidence (R 1138). The record shows that these events took place within minutes of the firing of the shots that gave rise to charges being placed against defendant, Watson.5
Officer Bagnell's testimony was corroborated by that of Officer McHugh who was with him. Defendant's possession was supported further by his admissions to a newspaper reporter who testified (R 1442) and by companions who said on the stand that they saw the gun (state's Exhibit 16) in the defendant's hands at various times before the shooting (R 1284-1287; 1312; 1384-1385).
With the evidence in this stance, anything probative stemming from possession on April 20, 1967, and May 9, 1967, was merely accumulative. Moreover, under such circumstances the probative effects of the previous possession are overbalanced by the prejudicial effects of the evidence of past acts. This is especially clear because the evidence involving the past acts was totally unnecessary to make the proof of possession the state needed.
It follows that the admission of such testimony was prejudicial unless encompassed and justified, despite the state's disclaimer, by the exceptions provided by Section
(1) his motive or intent,
(2) the absence of mistake or accident on his part, or
(3) his scheme, plan or system in doing an act.
Where those three elements, or any of them, are material, the acts may be shown whether occurring before, after, or contemporaneously with the incident giving rise to the case on trial and whether or not such proof "may show or tend to show" the commission of another crime. However, the statute does not permit a mere "piling on" of evidence, State v. Strong (Stark County, 1963),
Judicial gloss has added the establishment of identity to the list of permissible objectives where identity is in issue,Whiteman v. State (1928),
Section
"Fundamental has been the rule that character is never an issue in a criminal prosecution, unless the defendant chooses to make it one. The law has set its face against the endeavor to fasten guilt upon an accused person by proof of character or experience predisposing to an act of crime. The state may not prove generally against a defendant crimes not alleged in the indictment, as aiding the proof that he is guilty of the crime alleged in the indictment. * * *"9
Nothing of record in this case supports the existence of an objective which permits the "similar acts" evidence even were it to be assumed that the other requisites necessary to legally energize the statute were met. Accordingly, there was no legal basis to justify the interjection of evidence of other crimes into the trial. The probable effect, therefore, was to provide evidence of "collateral offenses" as "substantive evidence of the offense on trial" — a consequence condemned by the Supreme Court of Ohio in Whiteman v. State,
Conceding the unarguable — that emotional inflammation of the jury has no legitimate part in a trial — it seems to us, on this record, that there has been none of consequence, either deliberate or inadvertent, which has not been cured by the prompt intervention of the trial judge, or waived by failure to object. We find the second assignment of error without merit, and it is overruled.
"* * * a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding *126
veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected."
In an elaboration of the principle, the court said in footnote 9 of the Witherspoon case:
"* * * Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position."
And again in footnote 9:
"The critical question, of course, is not how the phrases employed in this area have been construed by courts and commentators. What matters is how they might be understood — or misunderstood — by prospective jurors. Any `layman * * * [might] say he has scruples if he is somewhat unhappy about death sentences. * * * [Thus] a general question as to the presence of * * * reservations [or scruples] is far from the inquiry which separates those who would never vote for the ultimate penalty from those who would reserve it for the direst cases.' * * *"
In a very recent case the Supreme Court of Ohio has clearly implied that the Ohio statute on disqualification (Section
"* * * even if such a statute is followed, the record in a case might indicate selection of a jury composed only of thosenot opposed to the death penalty. * * *" Id., p. 170. (Emphasis supplied.)
Thus it appears that the general rule in Ohio closely parallels the holding in Witherspoon, including the explanation of the principle vouchsafed by footnote 9 in the latter case. *127
The Pruett opinion does not reveal the context of the voir dire involved in that case but concludes that unlike the situation in Witherspoon:
"* * * there is absolutely nothing in [Pruett] * * * to indicate any effort either by state legislation or by court action to exclude prospective jurors from the jury simply because of their opposition to the death penalty." State v. Pruett,supra, 170-171.
In the present case a different factual situation is presented. Here the trial court repeatedly asked this question or variations of it:13
"The Court: And the court had also apprised the entire panel that the defendant in this case was under indictment for murder in the first degree. You understand that?" (R 792, 793)
"The Court: Keeping that in mind, in a proper case, properly proven, that is, proven beyond a reasonable doubt, could you join with your fellow jurors and return a verdict of guilty of murder in the first degree without the recommendation of mercy, if the evidence warrants not granting such recommendation, knowing that the death penalty will have to be imposed?" (R 793)
The responses to the question and variations of it reveal equivocal answers:
"I would say no." (R 116)
"I do not believe in capital punishment." (R 459)
"It would be hard for me to do that. [i. e., return a verdict of guilty without a recommendation of mercy.]" (R 514)
"No, I don't think so." (R. 584)
"No, because I don't believe in capital punishment." (R 633)
"No, I don't think I could." (R 793)
Those answers, without more, resulted in successful challenges for cause.14 *128
With only Witherspoon to guide us, the propriety of the challenges and the constitutionality of the resultant jury would be in serious doubt. However, since Witherspoon, the court has decided Boulden v. Holman (1969),
The imperfections found in the testing of the jury in Boulden provide the sure litmus for the test in the instant case.
In Boulden eleven veniremen were excused for cause on the basis of their affirmative responses to the question:
"Do you have a fixed opinion against capital punishment?"
Two others were excluded because they did not "believe in" capital punishment. Of these exclusions the court said:
"* * * Yet it is entirely possible that a person who has `a fixed opinion against' or who does not `believe in' capital punishment might nevertheless be perfectly able as a juror to abide by existing law — to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case." Boulden
v. Holman,
The court concluded that the death sentence imposed on the petitioner could not constitutionally survive Witherspoon.15
Juxtaposing what is condemned to Boulden to what was done in the present case, we find no distinction warranting a difference. We conclude that an unconstitutional jury was impaneled. Accordingly, we find that the sentence *129 of death16 in this case cannot be constitutionally justified on the record as it stands, and on this ground the third assignment is well taken and constitutes reversible error.
The question of mercy is for the jury on all the evidence in the case, Howell v. State (1921),
Where an objection is required, it has been held necessary both to object and request that the jury be instructed to disregard the objectionable statements to avoid waiver of the error. State v. Landrum (Cuyahoga County, 1953),
The lack of objection to the assistant prosecutor's giving his personal opinion on the mercy issue, as we read Nevius, forecloses reliance on that action as a basis for appeal on the record in this case.
The prosecution's "hoodlum" characterization went at least to the edge of justification in the absence of any record support unless such support be gleaned from that evidence on the gun possession and facial injuries, which was improperly admitted.20 *131
The impropriety of importuning the jury to support the police and to "pronounce to this community that you are going to preserve our society, our way of life," to secure a no-mercy verdict raises serious questions. A somewhat analogous argument appealing to the "public" concern with narcotics (among other examples of misconduct) was held "prejudicial to the substantial rights of the defendant" in State v. Cloud,
The Court of Appeals of the Fifth Appellate District has succinctly stated the controlling general principle:
"* * * A man on trial for his life is entitled to insist that the state observe all the rules and limitations which it itself has imposed, which are conducive to a fair and impartial trial."State v. Strong (Stark County, 1963),
The stance of the facts in this case does not lead us to conclude that the error exemplified by the fourth assignment of error, standing alone, would warrant reversal. However, since the case is to be reversed on other grounds, and may be retried, we note, with emphasis, the impropriety of the actions this assignment attacks. See, also, Hoare v. Cleveland (1933),
On the record in this case it is clear that the statement of which the defense complains was elicited by a newsman. There is no evidence that he was vicar of the state. In this situationMiranda v. Arizona (1966),
We find the fifth assignment of error without merit, and it is overruled.
For the reasons, and in the particulars noted in this opinion, the judgment below is contrary to law. It is, therefore, reversed and the cause is remanded for further proceedings according to law.
Judgment reversed.
SILBERT, C. J., and WHITE, J., concur.
"The Court: Do I understand that you are confining your questions of this witness solely to whether or not he can identify this weapon, and that he can further identify that the defendant in this case had this particular weapon?
"Mr. Szemer: That is correct. That is correct, associating this weapon with the defendant. Whether it be a criminal act, whether it be a justifiable act, is not the issue in this matter. Under the circumstances it is just connecting this weapon with the defendant. That is the purpose of the introduction of this testimony.
"Mr. Monck: Also, there is evidence in here that he had injuries to his face, and we may get some of that in here too. This man knocked him off his truck." (R 1454-1455)
Doubtless Mr. Monck's reference at this point was to evidence of facial injuries elicited from previous state witnesses on cross-examination. Initially, at least, this added justification was assigned light weight by the trial court. For, in overruling a defense motion for mistrial one page in the record after Mr. Monck's statement, the trial court said:
"The court is overruling your motion for mistrial. The court is aware of the fact that the prosecution has called to the court's attention that the purpose of this witness testifying is to show that this witness can identify this weapon, and that he can identify this defendant as having the weapon on this particular day.
"Is that what I understand, Mr. Prosecutor?
"Mr. Szemer: That is correct.
"Mr. Monck: Yes." (R 1456-1457)
However, at a still later point when the defense inquired about limitations on the testimony, Mr. Monck indicated a state interest in whether the witness had occasion to strike the defendant in the face on the 9th of May, 1967, and the court responded:
"Is this the purpose of eliciting that particular testimony?
"Mr. Monck: Yes.
"The Court: All right. You may proceed." (R 1457-1458)
No relevance can be assigned for the testimony on facial injuries unless it be a suggestion that statements or admissions by the defendant were forcibly secured by the police. No statements taken by the police, if any, were used. The defendant made no reference to the illegal use of force except (1) to say that he had no marks on his face on the night of his arrest (R 1897), (2) a somewhat confused reference to events in the hospital in connection with this statement to a news reporter:
"* * * I was in the hospital, and I got beat, and I seen black and white helmets, and when he asked me that morning my mind — I couldn't hardly think, and everybody kept asking me questions over and over, getting me all confused, and I couldn't acutally say what went on that night. I don't even hardly know" (R 1933), and (3) in the following colloquy to which a state objection was sustained:
"Q. Two days later you told Mr. Black you shot at a police car, didn't you? A. That was after they had beaten me up, and I didn't know what was going on.
"Mr. Monck: Objection.
"The Court: Objection sustained."
No other witness testified in a way to indicate illegal procurement of statements. In any case, an alternate explanation for the facial marks would have been appropriate only on rebuttal, not on the case in chief, unless some circumstance, which is not apparent from the record, justified the trial court in modifying the order of the trial. See Sections