431 N.E.2d 987 (Ohio 1982), 81-221, State v. Puente

Docket Nº:81-221.
Citation:431 N.E.2d 987, 69 Ohio St.2d 136
Opinion Judge:Per Curiam.
Party Name:The STATE of Ohio, Appellant, v. PUENTE, Appellee.
Attorney:John G. Cardinal, Pros. Atty. and Daniel J. Herron, for appellant. Mr. John G. Cardinal, prosecuting attorney, Mr. Daniel J. Herron, and Mr. Phillip J. Cantigallo, for appellant., Mr. J. Tullis Rogers, Mr. Kenneth R. Boggs and Mr. Thomas Hitchcock, for appellee.
Judge Panel:LOCHER, HOLMES, CLIFFORD F. BROWN and KRUPANSKY, JJ., concur. [69 Ohio St.2d 140] CELEBREZZE, C. J., and WILLIAM B. BROWN and SWEENEY, JJ., dissent. CELEBREZZE, Chief Justice, dissenting. WILLIAM B. BROWN and SWEENEY, JJ., concur in the foregoing dissenting opinion.
Case Date:February 10, 1982
Court:Supreme Court of Ohio
 
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Page 987

431 N.E.2d 987 (Ohio 1982)

69 Ohio St.2d 136

The STATE of Ohio, Appellant,

v.

PUENTE, Appellee.

No. 81-221.

Supreme Court of Ohio.

February 10, 1982

Page 988

In October 1979, the Grand Jury of Ashtabula County indicted appellee, Dennis Puente, for two counts of attempted murder. Prior to trial, appellee challenged the manner in which the array of grand and petit jurors was selected. 1 Appellee asserted that, in choosing the array of jurors, a jury commissioner had not followed the procedures set forth in R. C. 2313.01 et seq. 2 The trial court overruled appellee's motion. Subsequently, a jury found appellee guilty of one count and not guilty of the other.

Upon appeal, the Court of Appeals for Ashtabula County reversed appellee's conviction. Relying upon State v. Davis (1978), 60 Ohio App.2d 355, 397 N.E.2d 1215, the court held that appellee had been prejudiced by a failure to have his jury selected in the method prescribed by law.

At the hearing held to determine what method the jury commissioners used to formulate the array of grand and petit jurors, 3 it was established that one jury commissioner did not follow the mandates of R.C. 2313.01 et seq.

The evidence showed that the jury commissioner would [69 Ohio St.2d 137] receive the poll list from the board of elections. 4 Then, when requested by the court for a certain number of jurors, the commissioner would contact leading citizens, familiar with the various precincts in the county, to determine which residents of the county's precincts would be competent jurors. 5 Having determined which residents would be competent jurors, the commissioner would place a proportionate number of names from each precinct in the jury wheel. The commissioner, in developing the list of people whose names would be placed in the jury wheel, automatically exempted people entitled to statutory exemptions, such as doctors, dentists, lawyers and students studying outside the county. Lastly, the commissioner kept no record of his proceedings.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

John G. Cardinal, Pros. Atty. and Daniel J. Herron, for appellant.

J. Tullis Rogers, Kenneth R. Boggs and Thomas Hitchcock, Columbus, for appellee.

PER CURIAM

By disqualifying people from jury service, based upon their professions, the jury commissioner did not specifically follow R.C. 2313.01 et seq. While R.C. 2313.12 authorizes commissioners of juries to exempt those who are statutorily entitled to exemption, a commissioner may do so only upon the request of the persons so entitled. Here, the commissioner would not place the names of those entitled to exemption in the jury wheel. Additionally, the commissioner compounded this shortcoming by not keeping a record of all proceedings before him, as required by R.C. 2313.12.

However, the failure here of the commissioner to follow the requirements of R.C. 2313.01 et seq. does not lead to the conclusion reached by the Court of Appeals that appellee's conviction must be reversed.

In State v. Strodes (1976), 48 Ohio St.2d 113, at 115-116, 357 N.E.2d 375, this court stated:

Page 989

"Unless prejudice to the defendant or the systematic and [69 Ohio St.2d 138] intentional exclusion of a group is shown, we will not reverse a judgment because of minor and technical defects in jury-selection procedures."

Also, R.C. 2313.41, relating to challenging an array of grand or petit jurors, states that "no indictment shall be quashed or verdict set aside for any such irregularity * * * if the jurors who formed the same possessed the requisite qualifications to act as jurors." See, also, In re Appropriation (1963), 120 Ohio App. 273, 201 N.E.2d 889.

There is nothing in the present record that leads to the conclusion that appellee was either prejudiced by the jury commissioner's failure to follow the requirements of R.C. 2313.01 et seq., or that the jurors who indicted and convicted appellee were not qualified jurors. Consequently, the Court of Appeals erred in reversing appellee's conviction.

Our analysis does not end with a determination of what the Revised Code requires, for it was also argued that appellee was deprived of his constitutional right to have a jury chosen from a fair cross-section of his community. 6

The Sixth and Fourteenth Amendments to the United States Constitution guarantee this right to criminal defendants. 7 Duren v. Missouri (1979), 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579; Taylor v. Louisiana (1975), 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690; State v...

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