285 N.E.2d 751 (Ohio 1972), 71-780, State v. Johnson

Docket Nº:71-780.
Citation:285 N.E.2d 751, 31 Ohio St.2d 106
Opinion Judge:BROWN, J.
Party Name:The STATE of Ohio, Appellee, v. JOHNSON, Appellant.
Attorney:Simon L. Leis, Jr., Pros. Atty., and Robert K. Sachs, Cincinnati, for appellee. Mr. Simon L. Leis, Jr., prosecuting attorney, and Mr. Robert K. Sachs, for appellee., Mr. William F. Hopkins and Mr. James N. Perry, for appellant.
Judge Panel:O'NEILL, C. J., and SCHNEIDER, HERBERT, STERN and LEACH, JJ., concur.
Case Date:July 19, 1972
Court:Supreme Court of Ohio

Page 751

285 N.E.2d 751 (Ohio 1972)

31 Ohio St.2d 106

The STATE of Ohio, Appellee,


JOHNSON, Appellant.

No. 71-780.

Supreme Court of Ohio.

July 19, 1972

Page 752

[Copyrighted Material Omitted]

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Syllabus by the Court

1. Absent any necessity demonstrated in the record for a defendant's trial to run seriatim with the trials of codefendants, a defendant will not be deemed to have been denied due process of law where the state, in order to insure a trial free from prejudice, conducted three [31 Ohio St.2d 107] separate murder trials simultaneously in three different courtrooms. (State v. Kassow (1971), 28 Ohio St.2d 141, 277 N.E.2d 435.)

2. A defendant is not denied due process of law where the composition of the special venire called for his trial was constituted in such a manner that only qualified electors were eligible for jury duty. The provisions of R.C. 2945.18, 2945.19, 2313.06 and 2313.08, whereby jurors are selected only from among qualified electors of the county, are constitutional.

3. In a trial where defendant offered the only evidence on his motion for a change of venue, the failure of the prosecution to offer any evidence contra such motion does not necessarily establish a prima facie case for the granting of a change of venue. The possibility of bias or prejudice, or danger of an unfair trial as set forth in the motion to transfer the cause is directed to the discretion of the trial judge.

4. The legal presumption that a criminal is sane until the contrary is established by a preponderance of the evidence is not in conflict with R.C. 2945.04, wherein it is provided that the defendant in a criminal action is presumed to be innocent until he is proved guilty of the crime charged; and this presumption of innocence places upon the state the burden of proving him guilty beyond a reasonable doubt.

This is an appeal as of right arising out of the conviction without a recommendation

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of mercy of defendant, Watterson Johnson, for one count of violation of R.C. 2901.01, the killing of Lillian Dewald while perpetrating or attempting to perpetrate robbery.

The Grand Jury of Hamilton County, Ohio, returned a joint indictment against this defendant and codefendants [31 Ohio St.2d 108] Raymond Kassow and John Levi Leigh for violation of the above section. To the indictment, the defendant entered pleas of not guilty and not guilty by reason of insanity. Subsequently, an order was made directing the trial court to hold a separate trial for each defendant, each trial to run simultaneously in order to insure that the jurors in each trial were not influenced by the events occurring in the other.

The court also made an order for the clerk of courts to draw 75 names to serve as special jurors for the trial of the defendant. The names of these prospective jurors were drawn from the roles of electors, pursuant to R.C. 2945.18, 2945.19, 2313.06 and 2313.08.

At commencement of the trial, defendant moved for a change of venue and for a sanity hearing, both of which motions were overruled.

At defendant's trial, evidence was presented which showed that on September 24, 1969, at approximately 11:00 a. m., the Cabinet Supreme Savings and Loan Association, located in Delhi Township, Hamilton County, Ohio, was robbed. During the course of the robbery a female employee, Lillan Dewald, and three female customers were shot and killed. Mrs. Dewald was shot in the back four times with two different guns. The three women customers were each shot in the forehead. The husband of one of the victims who was waiting for his wife in an adjoining parking lot during the time of the robbery, saw three men walk from the building, enter an automobile, and speed away. He then entered the building and called for his wife. When she did not respond, he investigated, and saw piled inside a vault the bodies of his wife and three other women. The police, after responding, put out a call for the arrest of defendant Johnson and codefendant Kassow.

Prior to the date of the crime, two men had entered the Cabinet Supreme Savings and Loan Association and opened a savings account with the teller, Mrs. Dewald. An account signature card was filled out at that time under the name of 'Watterson Johnson.' Mrs. Dewald became suspicious and notified her husband who was a Cincinnati [31 Ohio St.2d 109] police officer. The next day, the two men returned to complete the account card. At this time Mr. Dewald was in a back room with his gun drawn and he heard one of the men identify himself as Watterson Johnson. Dewald did not personally observe the defendant. The two men left without incident. Shortly after the murder-robbery on September 24, 1969, codefendant Kassow was arrested. Subsequently, he gave a statement to the Cincinnati police, and as a result of this statement the police went to Fairview Park, Cincinnati, Ohio, where a paper bag containing three guns was recovered. Ballistics examination of the guns revealed that two of them had been used in the killing of the four women.

On the morning of September 28, 1969, Johnson and Leigh were apprehended in New Mexico by a police officer. After their arrest, they were turned over to FBI agents at Gallup, New Mexico. Subsequently, an FBI agent, after duly advising Johnson of his constitutional rights, obtained a statement from him in which Johnson admitted that some time prior to the robbery he and Kassow had planned the robbery.

Johnson also admitted to Cincinnati police officers, who had gone to New Mexico to return him to Cincinnati, that on the date prior to the robbery he and Kassow had gone to the Savings and Loan Association, where Kassow had filled out an account card using Watterson Johnson's name; that a few days before the robbery-murder

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they procured the services of the third defendant, John Levi Leigh; and that on the morning of the robbery the three men drove to the Cabinet Supreme Savings and Loan. Johnson stated that Kassow remained in the car, while he and Leigh entered the building. After entering, they announced to the teller, Mrs. Dewald, that it was a holdup. Three other women then entered the savings and loan, and all four women were ordered into the vault, whereupon Johnson stated that Leigh then started shooting the women and, when his gun jammed, Leigh grabbed Johnson's gun and continued firing.

A police specialist in the identification section testified [31 Ohio St.2d 110] that he picked up a signature card, found in the Cabinet Supreme Savings and Loan Association on the date of the robbery, and on the signature card there was found a fingerprint of defendant, Johnson.

Simon L. Leis, Jr., Pros. Atty., and Robert K. Sachs, Cincinnati, for appellee.

William F. Hopkins and James N. Perry, Cincinnati, for appellant.


BROWN, Judge.

The defendant contends that the penalty of death is cruel and unusual punishment and therefore unconstitutional.

The United States Supreme Court, in Furman v. Georgia (decided June 29, 1972), -- U.S. --, 92 S.Ct. 2726, 33 L.Ed.2d 346, has held that the carrying out of a death penalty imposed at the discretion of the trier of the facts constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution.

Under that holding, which we are required to follow, the infliction of the death penalty under the existing law of Ohio is now unconstitutional (with the possible exception of the taking of the life or attempting to take the life of the President, Vice President, or a person in the line to succession to the presidency (R.C. 2901.09), or of the Governor or Lieutenant Governor (R.C. 2901.10), which statutes purport to impose a mandatory penalty of death).

We have reviewed the record of the proceedings in this case and find ample evidence of guilt of murder in the first degree.


The defendant next asserts that he was denied due process of law because the state conducted three murder trials in three different courtrooms simultaneously, wherein defendant was tried at the same time as his codefendants Kassow and Leigh. This contention has no merit. Absent any showing in the record of prejudice occasioned by [31 Ohio St.2d 111] the simultaneous trials, and absent defendant's demonstration of any necessity for his condefendants' trials to run seriatim, we find no error. State v. Kassow, supra (28 Ohio St.2d 141, 277 N.E.2d 435). As was true in Kassow, there is nothing in the bill of exceptions or the record of this case which demonstrates that the defendant was prejudiced in any manner by conducting separate trials simultaneously in three separate courtrooms.

To the contrary, the entire procedure was designed to insure the defendants a fair trial by providing that one jury could not know what happened in one of the codefendant's cases.


The defendant next claims that he was denied due process of law because the composition of the special venire called for his trial was constituted in such a manner that all non-registered electors were systematically excluded for jury services. In the case at bar, the jury was summoned and constituted as required by R.C. 2945.18, 2945.19, 2313.06 and 2313.08. Under this procedure, pursuant to R.C. 2313.06, jurors

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are only selected from among the electors of the county shown on either the pollbooks or registration lists for the next preceding general election.

It should be noted that although a juror is in effect required to have the qualifications of an elector he is not required to be a voter. Under Section 1, Article V of the Constitution, as it read at the time of defendant's trial, an elector was a citizen who had been a resident of the state for one year and of the county and ward for such time as has been...

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