State v. Duling

• Citation: 50 O.O.2d 40,21 Ohio St.2d 13,254 N.E.2d 670
• Decision Date: 07 January 1970
• Docket Number: No. 69-83,69-83
• Parties: , 50 O.O.2d 40 The STATE of Ohio, Appellee, v. DULING, Appellant.
• Court: United States State Supreme Court of Ohio

Page 13

21 Ohio St.2d 13

254 N.E.2d 670, 50 O.O.2d 40

The STATE of Ohio, Appellee, v. DULING, Appellant.

No. 69-83.

Supreme Court of Ohio.

Jan. 7, 1970.

Syllabus by the Court

1. A defendant convicted of murder in the first degree without a recommendation of mercy in a trial conducted prior to the decision of the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, who did not object when, on the voir dire, some prospective jurors who expressed opinions against capital punishment were excused without a conclusive showing that their opinions would preclude them from finding the accused guilty of an offense punishable by death, as required by Witherspoon, and for which, under the provisions of Section 2945.25, Revised Code, objection could have been made at that time, is precluded from raising such issue for the first time in a postconviction remedy proceeding.

2. Constitutional issues cannot be considered in postconviction proceedings under Section 2953.21 et seq., Revised Code, where they have already been or could have been fully litigated by the prisoner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment, and thus have been adjudicated against him. (Paragraph seven of the syllabus in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, approved and followed.)

In 1965, Eugene W. Duling, appellant herein, was convicted by a jury of murder in the first degree, without a recommendation of mercy, and was sentenced to death for the killing of a police officer. The Court of Appeals affirmed the judgment of conviction and this court dismissed an appeal from the judgment of the Court of Appeals on the ground that no substantial constitutional question was involved. Upon appeal, the Supreme Court of the United States denied a petition for a writ of certiorari.

In June 1967, appellant filed a petition for postconviction relief in the Court of Common Pleas, raising the same arguments as in the original appeal. At the same time, he also filed a motion for new trial on the basis of newly discovered evidence. Relief was denied in both instances. Appeal was then taken to the Court of Appeals and subsequently was voluntarily dismissed.

In January 1968, appellant refiled in the Court of Common Pleas his original petition for postconviction relief and the motion for new trial. The trial court denied relief and appeal was again taken to the Court of Appeals. Prior to the hearing in the Court of Appeals, the decision of the United States Supreme Court in the case of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, was handed down. That decision was brought to the attention of the Court of Appeals, but no transcript of the voir dire examination of jurors was filed. The Court of Appeals affirmed the judgment, but, of necessity, that court did not pass on the Witherspoon issue.

Upon appeal to this court, appellant has provided the transcript of the voir dire examination necessary to review the questions raised in relation to selection of the jury at his trial.

The cause is before this court upon an appeal as of right.

C. Howard Johnson, Pros. Atty. and David H. Bodiker, Columbus, for appellee.

Robert E. Albright, James C. Justice and James H. Callard, Columbus, for appellant.

CORRIGAN, Judge.

The principal contention of appellant in this appeal is that he was denied his right to a fair trial by an impartial jury when veniremen were excused for cause because they were opposed in principle to the death penalty in the absence of a conclusive showing that their opinions precluded them from finding the accused guilty of an offense punishable by death. In other words, appellant claims that the manner of questioning some prospective jurors who were excused for cause due to their opposition to the death penalty did not completely conform to the principles laid down in Witherspoon v. Illinois, supra (391 U.S. 510, 88 S.Ct. 1770).

An examination of the record reveals that there were instances during the questioning of prospective jurors on the voir dire when the standards set forth in Witherspoon were not literally met, namely, some were excused without categorically stating that they would automatically vote against the imposition of capital punishment, no matter what evidence the trial would reveal.

It should be pointed out that our statute (Section 2945.25, Revised Code) contains language which conforms to the requirements of Witherspoon. There is no doubt that the trial judge in this case conscientiously tried to impanel a jury within the framework of our Constitution and statutes which would furnish appellant a trial by an impartial jury as guaranteed by the Sixth Amendment to the Constitution of the United States and Section 10, Article I of the Ohio Constitution.

Furthermore, as the court stated in People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208: 'The circumstances under which the voir dire examination here was conducted were quite different from those in Witherspoon. In that case the court noted that the tone was set when the trial judge said early in the voir dire, 'Let's get these conscientious objectors out of the way without wasting any time on them.' In this case there was no hint of a desire for haste or for a perfunctory examination to see how many jurors could be disqualified on the statutory basis alone.'

At the time of the voir dire in the instant case, Section 2945.25, Revised Code, provided that a person called as a juror could be challenged for cause in a capital case if 'his opinions preclude him from finding the accused guilty of an offense punishable with death.'

In State v. Pruett, 18 Ohio St.2d 167, 169, 248 N.E.2d 605, 606, we noted that:

'Unlike the Illinois statute, our statute does not authorize a challenge for cause of anyone merely because he says he 'has conscientious scruples against capital punishment, or that he is opposed to the same.' Our statute has, since at least 1869 (66 Ohio Laws 287, 307), apparently agreed with the conclusion stated in the opinion in Witherspoon, and thus has authorized challenging a juror for cause only where such a juror had opinions which precluded him from voting for a verdict that would result in the death penalty.'

Inasmuch as our statute is in conformity with the requirements set forth in Witherspoon, it is apparent that, at the time of the voir dire in this case, appellant could have raised questions which were subsequently decided in Witherspoon.

We are of the opinion, as we indicated in Pruett, supra (18 Ohio St.2d 167, at page 168, footnote 2, 248 N.E.2d 605, at page 606), that 'since the defendant did not raise any question in the Ohio courts about the right so established by Witherspoon, and since that right had long existed under Ohio statutes * * * the defendant's failure to so raise that question should preclude him from raising it now. See Schmerber v. California (1966), 384 U.S. 757, 765, 86 S.Ct. 1826, 16 L.Ed.2d 908 * * *.'

Moreover, because this appeal stems from a postconviction remedy proceeding, our holding in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, also prevents the raising of the issue by appellant now. Paragraph seven of the syllabus in that case reads:

'Constitutional issues cannot be considered in postconviction proceedings under Section 2953.21 et seq., Revised Code, where they have already been or could have been fully litigated by the prisoner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment, and thus have been adjudicated against him.'

Since the other questions raised by appellant in this appeal were considered, or could have been considered, in his direct appeal, we deem it necessary only to pass on his contention that the trial court erred in overruling his motion for new trial, filed in January 1968, on the basis of newly discovered evidence.

The newly discovered evidence consisted of reports of two state psychiatrists made in 1967 in which they expressed the opinion that appellant could not distinguish right from wrong at the time of commission of the crime. Such evidence is cumulative to former evidence, and it fails to disclose any strong probability that the result would be changed by a new trial, and, therefore is not sufficient evidence to warrant the granting of a new trial.

The trial court did not err in overruling the motion. State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370.

For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

TAFT, C. J., and MATTHIAS, SCHNEIDER and GRAY, JJ., concur.

DUNCAN, J., dissents.

GRAY, J., of the Fourth Appellate District, sitting for HERBERT, J.

GRAY, Judge (concurring).

Defendant contends that he was denied his rights under the United States Constitution, and cites as his authority Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. I do not think that a federal constitutional question is presented.

For over 100 years, we have had the procedural requirement in the state of Ohio that in order to lay a foundation for review of an alleged error in the appellate courts it is necessary that the matter complained of be called to the attention of the trial court by objection, motion or otherwise, and that there be a ruling by the court thereon. Further, in order to perfect the appeal and to bring the matter to the attention of the reviewing court the objection made in the trial court, with the ruling thereon, must be stated with the facts, or so much of the evidence as is necessary to explain it, and be incorporated in the bill of exceptions filed in the case. See Sections 2321.03 and ...