State v. Eaton

• Decision Date: 30 July 1969
• Docket Number: No. 69-208,69-208
• Citation: 249 N.E.2d 897,19 Ohio St.2d 145,48 O.O.2d 188
• Parties: , 48 O.O.2d 188 The STATE of Ohio, Appellee, v, EATON, Appellant.
• Court: Ohio Supreme Court

Page 145

19 Ohio St.2d 145

249 N.E.2d 897, 48 O.O.2d 188

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

No. 69-208.

Supreme Court of Ohio.

July 30, 1969.

Syllabus by the Court

1. A defendant in a criminal case cannot complain of error in the overruling of a challenge for cause if such ruling does not force him to exhaust his peremptory challenges.

2. A prospective juror may be challenged for cause in a capital case where 'his opinions preclude him from finding the accused guilty of an offense punishable with death.' (Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; State v. Pruett, 18 Ohio St.2d 167, 248 N.E.2d 605 followed.)

3. Where defendant is charged with a felony murder, and, where after presentation of the state's case, the two possible verdicts are guilty of first degree murder and not guilty, and where defendant requests the court to submit a verdict form of manslaughter to the jury, and, where the knowledge of facts which would justify the submission of this latter offense to the jury rests solely in the mind of defendant, it is not prejudicial error for the trial court to require him, by whatever means are available to him, to prove that the elements of manslaughter are present in the case before the trial court submits the offense of manslaughter for the consideration of the jury.

4. Where the court rules that questions in respect to a deposition are improper, it is not prejudicial error for the court to fail to admonish the jury to disregard the responses which had been read where the court was not requested to do so 5. A delay of twenty-five minutes between the conclusion of final argument to the jury and the charge of the court does not constitute error under Section 2945.10, Revised Code.

6. Flight from justice, and its analogous conduct, may be indicative of a consciousness of guilt.

Defendant was indicted for killing Rodney Dale Hummel during an attempted robbery. He was found guilty of first degree murder. No recommendation of mercy was made by the jury. The Court of Appeals affirmed the judgment of the trial court.

Defendant and Carl Douglas Williams were indicted jointly for this offense, and were tried separately.

Shortly before 2:00 a. m. on November 14, 1967, Williams approached a Shell filling station at Colerian and Hopple Street in the city of Cincinnati with intent to rob the attendant. Meanwhile defendant waited down the street. Williams reported back to defendant that there were two people there and it was unwise to proceed with that robbery.

Defendant and Williams then decided to rob the Tressler Comet filling station located at Burlington Place and Hopple Street, which was near the Shell station. Defendant took the gun this time. According to defendant's version, he approached the Comet station, entered a small office, pulled the gun out of his coat pocket and told the attendant, Rodney Dale Hummel, that it was a hold up. Hummel did not say anything, but just looked at defendant. Defendant then said, 'Come on, give me the money. I don't want to hurt you. I am just here for the money.' Hummel then lowered his head and tackled defendant, grabbing defendant's right arm. Defendant had the pistol in his right hand. Hummel and defendant went scuffling through the door. Defendant lost his footing, and fell, with the victim on top of him. The gun discharged and Hummel was shot. Defendant claims that the shooting was accidental.

A motorist, Austin Raines, happened to be passing by the Comet Service Station when he heard a noise like a shot coming from this station. Raines looked and saw two men running, one running toward Hopple Street, 'hollering.' The other ran down Burlington Street. Raines drove his car to the curb and asked the victim what was wrong. He said 'Please help me, I'm shot.' Defendant admitted that it was he who ran down Burlington Street.

Raines testified further that the man who was shot was running in front of the other, and that they ran for about 20 feet in that manner.

The coroner's pathologist for Hamilton County testified that he did a post-mortem examination on the body of Rodney Dale Hummel. His testimony was that the bullet penetrated the left lung, the aorta, and esophagus, causing death.

The pathologist testified further that the bullet entered the back of Hummel, travelled upward, from back to front, at approximately 55 degrees, and to the right at approximately 40 degrees. The bullet entered the lower lateral aspect of the back about ten inches below the base of the neck and six inches left of the midline of the back.

The pathologist also testified that he did not see any evidence of a powder burn around the entrance hole in Hummel's clothing, or around the entrance hole on the back of the deceased, that, from the absence of powder burns, the muzzle of the gun must have been a minimum of one foot away from the body of Hummel when it was fired and it could have been much further away but no nearer.

The cause is now before this court on appeal as of right.

Melvin S. Rueger, Pros. Atty., Calvin W. Prem and Carl W. Vollman, Cincinnati, for appellee.

Harry H. McIlwain and Robert O. Smith, Cincinnati, for appellant.

GRAY, Judge. ^*

In his brief, defendant sets forth the following assignments of error:

1. The trial court erred in not excluding a prospective juror, challenged for cause, when said juror said on the voir dire that the defendant was guilty.

2. The trial court erred in excusing certain prospective jurors who said they were opposed to capital punishment but could join in a verdict resulting in the death penalty if there was justification from the evidence.

3. The trial court erred in admitting evidence of a prior hold-up allegedly committed by the defendant, which did not have probative value in the case on trial.

4. The trial court erred in forcing the defendant to testify by refusing to charge the jury on manslaughter unless he took the witness stand, even though there was ample evidence in the state's case to support a charge to the jury on manslaughter.

5. The trial court erred in admitting into evidence defendant's confessions, where the defendant was not furnished a lawyer and did not knowingly and intelligently waive his privilege against self-incrimination.

6. The trial court erred in permitting improper evidence, already ruled out by the court, read into evidence by the prosecution.

7. The trial court erred in not charging the jury immediately upon conclusion of closing arguments.

8. The trial court erred in its general charge to the jury on the element of intent by not including testimony as evidence of intent.

9. The trial court erred in its charge to the jury on recommending mercy by not explaining 'mercy' as it is commonly used.

ASSIGNMENT OF ERROR NO. 1.

The gist of defendant's complaint is that he was forced to use a peremptory challenge in excusing Mrs. Marion B. Woodley from the jury.

The record shows that defendant used five peremptory challenges. By statute, he was entitled to six.

A party cannot complain of prejudicial error in the overruling of a challenge for cause if it does not force him to exhaust his peremptory challenges.

If there was error, as claimed by defendant, in the trial court's ruling on this challenge for cause, it is deemed waived by the acceptance of the jury where the number of peremptory challenges remains unexhausted. Mimms v. State, 16 Ohio St. 221; Erwin v. State, 29 Ohio St. 186; Hopt v. Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708.

The record shows that defense counsel stated that they were satisfied with the jury immediately before it was sworn.

ASSIGNMENT OF ERROR NO. 2.

In this assignment of error, defendant complains that Mrs. Artie L. Craig was erroneously excused as a juror on a challenge for cause. Defendant maintains that the trial court committed prejudicial error in sustaining the prosecution's challenge for cause because a death-minded jury was produced thereby.

In this assignment of error defendant complains that the prosecution succeeded in securing a death-minded jury in that it systematically excluded, either based on challenge for cause or on peremptory challenge, all prospective jurors who had announced any difficulty in accepting the philosophy of capital punishment.

The challenges for cause do not show such a systematic plan. Defendant is attempting to extend the concepts of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, to ban the use of peremptory challenges by the prosecution to excuse from the jury anyone who did not believe in the death penalty. Ours is an adversary system of jurisprudence. To carry defendant's contention to its logical conclusion we would be required to eliminate peremptory challenges from our judicial procedure.

A peremptory challenge is an arbitrary species of challenge to a certain number of jurors without showing any cause. The right to peremptory challenges, given by the law of Ohio, is absolute and cannot be questioned by opposing counsel or the court, nor can it be denied to either party.

Twelve of the panel of prospective jurors were seated. Eleven were peremptorily challenged, six by the state and five by the defense. Four prospective jurors were excused on challenge for cause because they were unalterably opposed to the death penalty and no amount of evidence would change that state of mind. ¹ One juror had read about the case in the newspaper and had thereby formed an opinion that he could not dispel from his mind.

Another juror knew the victim's mother. She was excused for cause. Another juror was excused because she did not live in the county.

There was no pattern in the rejection or selection of the members of the jury. We do not believe that the empanelling of this jury violated the rules laid down in Witherspoon, supra.

In brief, Witherspoon holds:

A defendant would be deprived of his life without due process of law by the execution of the death...