State v. Watson

• Citation: 275 N.E.2d 153,57 O.O.2d 95,28 Ohio St.2d 15
• Decision Date: 20 October 1971
• Docket Number: No. 70-168,70-168
• Parties: , 57 O.O.2d 95 The STATE of Ohio, Appellant, v. WATSON, Appellee.
• Court: United States State Supreme Court of Ohio

Page 15

28 Ohio St.2d 15

275 N.E.2d 153, 57 O.O.2d 95

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

No. 70-168.

Supreme Court of Ohio.

Oct. 20, 1971.

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 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 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.'

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.

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 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.'

The Court of Appeals, 20 Ohio App.2d 115, 252 N.E.2d 305, reversed the judgment on the grounds advanced by defendant in the first and third assignments of error noted above.

The cause is before this court pursuant to the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., Harvey R. Monck and Henry Szemer, Cleveland, for appellant.

Edward R. Brown, Cleveland, for appellee.

CORRIGAN, Justice.

In this appeal by the state we shall first consider the two assignments of error advanced by defendant in the Court of Appeals, upon which that court predicated its reversal of the conviction.

Number one is defendant's contention that the trial court erred in admitting in evidence the details of two other criminal acts allegedly committed by defendant.

Evidence of one of the prior criminal acts was adduced by the testimony of one Peter Ashcroft, a privately employed police officer, that three weeks before the Huber murder he was attacked by two men in his driveway and his gun was taken. At the trial he identified the gun which the arresting officers had found at defendant's feet at the time of arrest as being his. It was also established that Ashcroft's gun was the murder weapon. Another state witness testified that defendant told him that he and one Hickman took the gun 'off a policeman.'

The other prior criminal act brought out at the trial was in the testimony of one Harold Kelly that, two days before the murder, defendant had attempted to hold him up while he was delivering ice cream in the vicinity of the crime. He identified the gun used in the killing as the one used by defendant in the attempted holdup.

The trial court permitted the foregoing evidence of prior criminal acts to be introduced for the purpose of establishing possession of the murder weapon by defendant. On that issue, the arresting officers testified that the gun was found at defendant's feet at the time of arrest, and defendant himself subsequently testified that he obtained the gun in a prior robbery, admitted that he fired the gun when he saw the police car, and that, when apprehended, he 'throwed the gun down.'

On the basis that possession of the gun by defendant was sufficiently established by evidence other than the prior criminal acts elicited from witnesses Ashcroft and Kelly, the Court of Appeals found that, 'the evidence involving the past acts was totally unnecessary to make the proof of possession the state needed.' The court then ...