275 N.E.2d 153 (Ohio 1971), 70-168, State v. Watson

Docket Nº:70-168.
Citation:275 N.E.2d 153, 28 Ohio St.2d 15
Opinion Judge:CORRIGAN, J.
Party Name:The STATE of Ohio, Appellant, v. WATSON, Appellee.
Attorney:John T. Corrigan, Pros. Atty., Harvey R. Monck and Henry Szemer, Cleveland, for appellant. Mr. John T. Corrigan, prosecuting attorney, Mr. Harvey R. Monck and Mr. Henry Szemer, for appellant., Mr. Edward R. Brown, for appellee.
Case Date:October 20, 1971
Court:Supreme Court of Ohio

Page 153

275 N.E.2d 153 (Ohio 1971)

28 Ohio St.2d 15

The STATE of Ohio, Appellant,


WATSON, Appellee.

No. 70-168.

Supreme Court of Ohio.

October 20, 1971

Page 154

Syllabus by the Court

1. Where the state is required to show possession of a murder weapon by defendant to establish its case it is permissible to allow in evidence proof of other criminal acts committed by defendant which tend to establish such possession, even though such evidence incidentally tends to prove commission of crimes other than the one with which the defendant is charged.

2. With respect to the qualification of a venireman to serve as a juror in a capital case, the fact that a person has voiced general objections to the death penalty or has expressed conscientious or religious scruples against its infliction does not preclude him from being able, after taking his oath as a juror, to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.

3. In selecting the members of a jury, unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it cannot be assumed that this is his position. (Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221).

4. Upon examination of a prospective juror to determine whether he should be disqualified from a capital case because of his opposition to capital punishment, the most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocaly [28 Ohio St.2d 16] committed, Before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances which might emerge in the course of the proceedings. (Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578).

5. Inasmuch as custodial interrogation, as defined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, means 'questioning initiated by law enforcement officers after a person has been taken into custody,' the Miranda requirements do not apply to admissions made to persons who are not officers of the law or their agents, and a statement made by a defendant, who is in custody, to a newspaper reporter is admissible whether or not it may have been influenced by earlier statements made by the defendant to the police.

The depressing, sordid facts in connection with this murder of a police officer

Page 155

while in the discharge of his duty emerge from a party attended by the defendant, Watson, and ten other persons, male and female, in a second floor apartment above Artex Cleaners at 8915 Superior Avenue, in Cleveland, on the night of May 10, 1967. The defendant had a .38 caliber Smith and Wesson revolver with him at the party. He had obtained the revolver, admittedly, in the robbery of a special police officer three weeks before . There was dancing and drinking of wine at the party. When defendant arrived, he took the cartridges out of the revolver he carried and started snapping the trigger. At one point during the party, defendant, with the gun in his hand, made the statement: 'If the police come up here, me and the police are going to have a shootout.' [28 Ohio St.2d 17]

In the course of the night at the party there was conversation about going downstairs and 'breaking into the Cleaners.' Later, some of the participants did go downstairs and ultimately came back to the apartment with clothes from the Artex Cleaners. At that time, the burglar alarm was ringing. Defendant then got his gun, which was on a chair, put some bullets in it, and said that 'he was going to get him one of those mother f_ _s. Then he ran downstairs.' About 20 seconds later three or four gunshots were heard by the persons in the apartment.

At 4:45 a. m. on May 11, 1967, three uniformed officers of the Cleveland police department who were on cruiser patrol were notified by police radio that a male was breaking into a dry cleaning establishment at 8915 Superior Avenue.

As the cruiser approached the dry cleaning establishment, two men were observed on the street. Suddenly, a shot was heard by the officers and the front window on the driver's side of the cruiser was shattered by a bullet which killed the driver of the cruiser, Patrolman Huber. At least two more shots were heard by the other two officers. They also heard a burglar alarm ringing.

Two other uniformed officers in another cruiser, also responding to the radio message, but from a different direction, saw two men running north on East 89th Street, just around the corner from the cleaning establishment. The two fleeing men separated. One was never found, but the other, defendant Watson, was chased by the officers and captured. When he was ordered to stop by Officer Bagnell, Watson said to him, 'I will shoot you too, mother f_ _.' When he was taken into custody, a .38 caliber revolver was found at his feet in the gutter. This revolver was identified as the weapon which fired the bullet causing the death of Patrolman Huber.

Defendant was indicted on two counts of murder in the first degree under R.C. § 2901.01 and § 2901.04. He was tried to a jury, which found him guilty on both counts, without a recommendation of mercy. [28 Ohio St.2d 18]

Defendant appealed to the Court of Appeals, wherein he asserted five assignments of error, as follows:

'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 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...

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