Akron v. Wendell

• Decision Date: 24 October 1990
• Docket Number: No. 14541,14541
• Citation: 590 N.E.2d 380,70 Ohio App.3d 35
• Parties: CITY OF AKRON, Appellee, v. WENDELL et al., Appellants.
• Court: Ohio Court of Appeals

Page 35

70 Ohio App.3d 35

590 N.E.2d 380

CITY OF AKRON, Appellee, v. WENDELL et al., Appellants.

No. 14541.

Court of Appeals of Ohio, Ninth District, Summit County.

Decided Oct. 24, 1990.

Charles R. Quinn and Thomas DiCaudo, Asst. Pros. Attys., Akron, for appellee.

Daniel G. LaPorte, Akron, and George G. Keith, Cuyahoga Falls, for appellants.

CACIOPPO, Judge.

Defendant-appellants, Kathleen M. Drumm, Mary O. Drumm, Charles F. Hoskins, Sylvia C. Slifko, and Stephen Michael Slifko, appeal their conviction for resisting arrest, R.C. 2921.33, trespassing, Akron Codified Ordinance ("ACO") Section 131.08(B)(1), and disorderly conduct, ACO Section 132.01(A)(4), arising from their protests at a medical clinic offering abortion services. We affirm.

In the morning hours of January 13, 1990, appellants participated in a demonstration at an Akron area abortion clinic. The protesters surrounded the entrances to the clinic and refused to allow passage. Apparently, they never entered the building, but stood and sat instead on the sidewalk and parking lot immediately outside the doorways. Another group of demonstrators picketed along the street but were not arrested.

Akron police officers arrived on the scene and warned the protesters blocking the doorway that they were violating state and city laws. When appellants refused to leave, they were placed under arrest. At that point, each protester went limp and had to be carried through the on-field booking process.

A joint trial was subsequently scheduled for the appellants. At voir dire, a number of potential jurors expressed strong anti-abortion sentiments. Those who openly stated that their views would prevent them from rendering fair and impartial verdicts were excused. During a recess, appellants lodged their objection to this proceeding. Their request for a mistrial was denied by the trial court.

Each of the appellants was found guilty by the jury on all three counts. Fines and costs were assessed ranging from $1,408.40 to $2,658.40. Sentences from twenty days of community service to twenty-seven days' net jail time were also imposed. One of the appellants, Stephen Michael Slifko, was required to post his driver's license as bond pending appeal.

The trial court expressed a willingness at sentencing to modify the terms of incarceration imposed if fines and costs were paid promptly. Two of the original defendants, William M. Wendell and Helen Moreno, took advantage of this offer and voluntarily dismissed their pending appeals. Subsequent motions to reinstate these proceedings were denied by this court.

Assignment of Error I

"The trial court deprived the appellants of their constitutional right to a trial by a jury selected from among their peers by certain aspects of the rial [sic] court's inquiries to the venire panel and by refusing to allow counsel to make inquiries to rehabilitate."

Appellants' argument under this assignment of error is twofold: the trial court perpetrated prejudicial error by (1) excluding potential jurors for cause simply because they were morally opposed to abortion, and (2) refusing to permit questioning and possible rehabilitation of these individuals by counsel. We disagree with both charges.

The record simply does not support the accusation of improper removal of potential jurors. Initially, the court excused David Bell and June Grismer when both openly admitted that they could not be fair and impartial in their deliberation. The trial judge proceeded to emphasize to the rest of the panel:

"The charge against [the defendants] was that they were demonstrating in front of a place or about a place, an alleged abortion clinic and the allegation is of course that the demonstration was against abortion.

"Now the fact--this is the idea of abortion, whether someone is for or against it is not what I'm asking you. I'm not asking you whether you are for or against abortion.

"I'm asking you though a more direct question. The fact that these people who are charged, the Defendants, have to some degree--the allegation is they associated themselves or were demonstrating against abortion, and at the place they were demonstrating at was an abortion clinic, would that prevent anyone of fairly and impartially hearing this case and rendering your verdict according to the evidence and the instructions on the law?"

Moments later he repeated:

" * * * As I said to you, all of you, and I want to repeat it. My aim is not that at all. I'm not interested in terms of your selection process what your personal views are.

"I say that to you. I mean it sincerely. I'm not asking everybody who is against abortion to stand and disqualify themselves. I'm simply asking you a different question. Regardless of your personal views, can you lay those views aside and hear this case and decide it on the evidence?"

This message was continuously reemphasized throughout this portion of voir dire. Nevertheless, Juanita Tomlinson, Edward Devlin, Viola Parsons, Bill Marshall, Robert Kory, Ann Marie Barnes, Debra Tell, and Ernest Donnie all expressed serious doubts as to whether they could "fairly and impartially" decide this case.

The trial court enjoys considerable discretion in removing potential jurors for cause. See Palmer v. State (1885), 42 Ohio State 596, paragraph four of the syllabus; State v. Vails (1970), 22 Ohio St.2d 103, 105, 51 O.O.2d 133, 134, 258 N.E.2d 225, 226; State v. Henderson (1988), 39 Ohio St.3d 24, 27, 528 N.E.2d 1237, 1241. Crim.R. 24(B)(9) parallels R.C. 2945.25(B) and provides that:

"Challenge for Cause. A person called as a juror may be challenged for the following causes:

" * * *

"(9) That he is possessed of a state of mind evincing enmity or bias toward the defendant or the state; but no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at the trial."

It is well settled that veniremen should not be excluded simply for voicing a general objection or opinion so long as they can still fairly decide the case upon the evidence presented. Witherspoon v. Illinois (1968), 391 U.S. 510, 521-523, 88 S.Ct. 1770, 1776-1778, 20 L.Ed.2d 776, 784-786; State v. Jenkins (1984), 15 Ohio St.3d 164, 179-188, 15 OBR 311, 324-332, 473 N.E.2d 264, 281-288.

The record in this appeal, however, does not reveal any evidence that potential jurors were excused simply because they held anti-abortion sentiments. To the contrary, each expressly stated that they were incapable of reaching a fair and impartial verdict. Such admissions clearly constitute proper grounds for removal. R.C. 2313.42(J); see, also, Akron v. Detwiler (July 5, 1990), Summit App. No. 14385, unreported, at 6-11, 1990 WL 95683. Indeed, one court was found to have abused its discretion by failing to exclude a potential juror who made a similar statement. Hankison v. Brown (1981), 3 Ohio App.3d 249, 3 OBR 282, 444 N.E.2d 1059.

It is important to note that while this decision is based, to this point, upon statutory authority, it is also consistent with the Sixth Amendment, United States Constitution and Section 5, Article I, Ohio Constitution. Both the state and the defendant are entitled to an unbiased and impartial jury that will properly apply the law to the facts as they believe to be true. State v. Wilson (1972), 29 Ohio St.2d 203, 211, 58 O.O.2d 409, 414, 280 N.E.2d 915, 920-921. A balance must be struck, as stated in State v. Bayless (1976), 48 Ohio St.2d 73, 90, 2 O.O.3d 249, 258, 357 N.E.2d 1035, 1048:

"Any exclusion of a class of jurors necessarily impinges upon the function of the jury to represent a cross section of the community. But while that is an important jury function, at least equally important is the jury's function of deciding cases fairly and impartially according to law. No technical test and no attempt to exclude from consideration factors which demonstrably prevent jurors from being impartial is an adequate substitute for impartiality as a fact. * * * "

Contrary to appellants' suggestions, neither Constitution demands the inclusion of jurors predisposed in their favor.

Turning to the question of appellants' right to rehabilitate the potential jurors, R.C. 2945.27 allows "reasonable examination" by defense counsel on the issue of fairness and impartiality. The Ohio Supreme Court has recognized that a failure to permit any such questioning in a capital case violates due process of law. State v. Anderson (1972), 30 Ohio St.2d 66, 59 O.O.2d 85, 282 N.E.2d 568, syllabus. Nevertheless, the trial court may exercise its sound discretion in controlling these proceedings and limit questioning to relevant and material matters. State v. Beuke (1988), 38 Ohio St.3d 29, 39, 526 N.E.2d 274, 285.

In the case sub judice, there is no record of timely objections to the trial court in response to its alleged refusal to permit questioning by counsel. Appellants' motion for a mistrial, which has been supplemented to the record, was not raised until after the pertinent veniremen had been excused. Such errors, as alleged, must be called to the trial court's attention at the time at which they could be remedied. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of syllabus; LeFort v. Century 21-Maitland Realty Co. (1987), 32 Ohio St.3d 121, 123, 512 N.E.2d 640, 642- State v. Wickline (1990), 50 Ohio St.3d 114, 119, 552 N.E.2d 913, 919. This assignment of error is therefore overruled.

Assignments of Error

"II. The trial court refused to grant appellant's motion for an acquittal on the charge of criminal trespass on the grounds that no evidence was introduced as to the right of Medical Planning Services, Inc. to control the parking lot at 1054 S. Arlington...