State v. Wade

• Decision Date: 22 March 1978
• Docket Number: No. 77-716,77-716
• Citation: 373 N.E.2d 1244,53 Ohio St.2d 182,7 O.O.3d 362
• Parties: , 7 O.O.3d 362 The STATE of Ohio, Appellee, v. WADE, Appellant.
• Court: Ohio Supreme Court

Page 182

53 Ohio St.2d 182

373 N.E.2d 1244, 7 O.O.3d 362

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

No. 77-716.

Supreme Court of Ohio.

March 22, 1978.

Syllabus by the Court

1. A claim of error in a criminal case can not be predicated upon the improper remarks of counsel during his argument at trial, which were not objected to, unless such remarks serve to deny the defendant a fair trial.

2. Challenged statements and actions of the trial judge in a criminal case will not justify a reversal of the conviction, where the defendant has failed in light of the circumstances under which the incidents occurred to demonstrate prejudice.

3. The failure to move within the time specified by Crim.R. 12(C) for the suppression of evidence on the basis of its illegal obtainment constitutes a waiver of the error. (Crim.R. 12(G).)

On December 29, 1975, a robbery occurred at the Austin Beverage Store in the Austin Village Plaza in Trumbull County. During the occurrence, both of the employees then present, Dominic Chiarella and Frederick C. Piersol, were shot by one of the two robbers. Chiarella died of his bullet wounds, and Piersol was seriously wounded.

Later that evening, police officers, acting upon information concerning the robbery suspects received from a service station attendant, stopped an automobile bearing the license plate number furnished by the attendant. A search of the occupants, Pompie Junior Wade (appellant) and Moses Hurd, and the automobile revealed 13 or 14 .32 caliber bullets, a shotgun in plain view on the back seat, a .32 caliber revolver, a ski mask (all of which were identified at the trial as being similar to the items used in the robbery), and sundry food items of the brands carried by the Austin Beverage Store.

Thereafter, appellant was indicted by the Trumbull County grand jury for the crimes of aggravated murder with specifications, attempted aggravated murder and aggravated robbery.

On March 3, 1976, a suppression hearing was held and resulted in a finding by the trial court that appellant's admission to the robbery and shooting of the two employees of the Austin Beverage Store was voluntarily given and therefore admissible.

A jury trial was commenced, and, on March 17, 1976, the jury returned a verdict of guilty on all three counts charged in the indictment. The trial court, failing to find any mitigating circumstances, sentenced appellant to death on the aggravated murder conviction, in accordance with the statutory mandate, and to two consecutive sentences of from seven to twenty-five years on the other two convictions.

Appellant's motion for a new trial being overruled, he appealed to the Court of Appeals which affirmed his conviction.

The cause is now before this court as a matter of right.

J. Walter Dragelevich, Pros. Atty., and Dennis Watkins, Warren, for appellee.

Phillips & Marks and Ronald A. Marks, Warren, for appellant.

LOCHER, Justice.

I.

Appellant has presented eight propositions of law to support various claims of error in the trial court proceedings. In his first proposition, he alleges a denial of a fair and impartial jury because of being denied the right to examine prospective jurors as to their views on capital punishment. In State v. Lane (1976), 49 Ohio St.2d 77, 79, 358 N.E.2d 1081, 1085 a similar contention, "that by restricting voir dire examination on the question of capital punishment, the court prevented a venireman's possible partiality to emerge and be met by challenges for cause or peremptory challenges," was considered and rejected by this court.

Appellant's attempt to apply the decision of the United States Supreme Court in Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, to the instant cause is indeed strained. In Witherspoon, supra, the court was confronted with a situation where state law required the systematic exclusion of jurors possessing general conscientious scruples against capital punishment from a jury which returned a guilty verdict and sentenced the defendant to death. There, thus, exist two relevant distinctions between Witherspoon, supra, and the instant cause. The jury in the cause sub judice, in accordance with the Ohio statutory scheme, determined only the issue of guilt and did not prescribe the death penalty. Additionally important is the fact that the jurors in this case and in State v. Lane, supra, contrary to those in Witherspoon, supra, were neither included nor excluded because of their beliefs on the subject of capital punishment.

Moreover, not a scintilla of evidence is presented to this court demonstrating that prohibiting an inquiry into the jurors' beliefs precluded a fair and impartial determination. Indeed, State v. Lane, supra, represents that instructions concerning the limited jury function may be an adequate substitute for an inquiry into whether a juror could render an impartial decision in spite of his views on capital punishment. The record of this case is replete with statements informing the jurors that their function is the determination of guilt and not the imposition of the penalty. In Witherspoon, supra, it is significant to note that the Supreme Court of the United States could not conclude, on the basis of the record and data before it, "that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction." Witherspoon, at page 518, 88 S.Ct. at page 1775. Thus, in this case, where the jurors are neither included nor excluded because of their beliefs on capital punishment and are adequately informed that they are to determine only the issue of guilt and not impose sentence, we are constrained to find the existence of a representative jury on the issue of guilt and no substantial increase in the risk of conviction and thereby reject appellant's antithetical assertion.

Additionally, appellant's request for a commutation of his sentence of death to life imprisonment because of this alleged error is non sequitur. Imposition of the sentence lies solely with the judge, not the jury, and this proposition has failed to advance any claims of error relating to the sentencing procedures.

Accordingly, we find appellant's first proposition of law to be without merit.

II.

Appellant next asserts a denial of his rights to a fair and impartial jury, due process and equal protection of the laws, because the prospective jurors were asked their views on capital punishment by a questionnaire prior to their selection as prospective jurors and the appellant was not allowed to inquire into their opinions on capital punishment.

We concur with appellant that the question, "Opposed to capital punishment----," was improper. However, we are restrained from agreeing with appellant that he was denied a fair and impartial jury because the questionnaire was sent to prospective jurors, and, from those served, a panel of veniremen was chosen for his trial. First, appellant has failed to present evidence demonstrative of any resultant prejudice. Secondly, as noted by the Court of Appeals, appellant did not challenge the array on the basis of the questionnaire at the proper time, i. e., the trial. The time for challenging the array is clearly specified in Crim.R. 24(E):

" * * * A challenge to the array shall be made before the examination of jurors pursuant to subdivision (A) and shall be tried by the court."

Having failed to timely raise this challenge to the array and not presenting the challenge to the trial court, appellant may not attempt to take advantage of it for the first time on review. Appellant's second proposition of law, therefore, is overruled.

III.

In Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the United States Supreme Court held the Fifth Amendment privilege against self-incrimination applicable to the states by virtue of the Fourteenth Amendment to the United States Constitution. Appellant, in the instant cause, proposes that the constitutional guarantee against self-incrimination established in Griffin v. California, supra, was violated by certain prosecution comments, i. e., "uncontradicted evidence," "two-way street" and "anybody's testimony," allegedly referring to appellant's failure to testify.

From an examination of the record, it appears that appellant is foreclosed from asserting this proposition with regard to all but one of the comments, because of his failure to timely object to the prosecutor's alleged improper remarks. The third paragraph of the syllabus in State v. DeNicola (1955), 163 Ohio St. 140, 126 N.E.2d 62, reads, in relevant part:

"Improper remarks of counsel during argument, unless so flagrantly improper as to prevent a fair trial, should be at once objected to * * *; otherwise error cannot be predicated upon the remarks alleged to have been improper."

Nor, upon consideration of the entire record and the context of the prosecutor's comments, do we find any inflammatory statements or conduct prejudicial to the rights of appellant. This finding is consistent with our previous holding in State v. Lockett (1976), 49 Ohio St.2d 48, 65, 358 N.E.2d 1062, that statements made by the prosecutor to the effect that the evidence against the appellant was uncontradicted and unrefuted did not constitute a comment by the prosecutor upon the defendant's failure to testify.

Appellant's third proposition of law is, therefore, rejected.

IV.

In his fourth proposition of law, appellant asserts a claim of misconduct by the trial judge, predicated upon specific statements directed to appellant's counsel and the alleged failure of the trial judge in two instances to give his complete and undivided attention to the trial. This court can discern no useful purpose in setting forth all seven of the challenged verbal exchanges. The following segment is illustrative:

"By Mr. Breckenridge: Now if it please the Court, we have been very...