State v. Eberhardt

• Decision Date: 17 May 1972
• Docket Number: No. 336,336
• Citation: 32 Ohio Misc. 39,282 N.E.2d 62
• Parties: , 60 O.O.2d 395, 61 O.O.2d 65 STATE of Ohio, Plaintiff, v. John EBERHARDT, Defendant.
• Court: Ohio Court of Common Pleas

Page 39

32 Ohio Misc. 39

282 N.E.2d 62, 60 O.O.2d 395, 61 O.O.2d 65

STATE of Ohio, Plaintiff, v. John EBERHARDT, Defendant.

No. 336.

Court of Common Pleas of Ohio, Cuyahoga County, Criminal Branch.

May 17, 1972.

John T. Corrigan, Cuyahoga County Prosecutor, John Carson, Edward Walsh, Asst. County Prosecutors, for the State.

[282 N.E.2d 63] William I. Fadel, Cleveland, for defendant.

MEMORANDUM OF OPINION

HERBERT, R. WHITING, Judge:

Defendant has moved for a new trial on the ground that the absence of the trial judge during voir dire, with the consent of all counsel, was contrary to law and due process. There is no claim that the absence of the trial judge prejudiced the defendant in any respect.

Defendant's Motion is overruled.

Four defendants were tried simultaneously on charges of armed robbery. With the advance express consent of all counsel, the voir dire was conducted by counsel in the courtroom but in the absence of the trial judge, who was in adjoining chambers attending to other work of the Court. No referee was present. Objections were ruled upon by the trial judge in chambers after discussion with counsel and with the reporter present.

As it now reads, there is nothing in the Revised Code that requires a judge to remain on the bench during voir dire. The only relevant section, applying only to criminal cases, reads as follows (R.C. § 2945.27):

'The judge of the trial court shall examine the prospective jurors under oath as to their qualifications to serve as fair and impartial jurors, but he shall permit reasonable examination of such jurors by the prosecuting attorney and by the defendant or his counsel.'

In the Federal Courts, a similar provision (Federal Criminal Rule 24(a)) has been held not to require the presence of a trial judge during the selection of a jury. Junited States v. Sams, 219 F.Supp. 164 (U.S.D.C., W.D.Pa., 1963); Haith v. United States, 231 F.Supp. 495 (U.S.D.C., E.D.Pa., 1964). Furthermore, despite its use of the word 'shall', the Ohio statute has been construed as not requring any examination whatever by the Court in absence of a request by counsel. State v. Mays, 74 Ohio Law Abst. 43, 139 N.E.2d 639 (C. A., Montgomery Co., 1956). Thus, even if Section 2945.27 could be construed to require the presence of the trial judge during voir dire, which seems doubtful, it would nevertheless be subject to waiver on the reasoning and authority of State v. Mays. For further authority to the same effect, see State v. Glaros, 170 Ohio St. 471, 166 N.E.2d 379 (1960).

Trial by jury is a constitutional right of the accused which may be knowingly, intelligently and voluntarily waived. It is not a mandatory feature of our judicial system. In fact, in Ohio, such waiver is expressly authorized by statute. (R.C. § 2945.05) It follows that part of the established procedure for examining prospective jurors and selecting a jury may be waived. When there is no constitutional or statutory mandate, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy. Hoffman v. State, 98 Ohio St. 137, 120 N.E. 234 (1918); Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1929).

It is true that as a general rule the trial judge has a duty to be present in the courtroom from the opening of the trial until its close, and if he finds it necessary to absent himself he should suspend all proceedings until his return. Miller v. State of Ohio, 73 Ohio St. 195, 76 N.E. 823 (1906). In one instance an Ohio court held this to be mandatory. In Moore v. State of Ohio, 46 Ohio App. 433, 188 N.E. 881 (1933), the Court declared that a trial judge's absence during final argument, even with the consent of counsel, was fatal to the verdict because the judge is an essential part of the court and his absence, even for a brief period, destroys the integrity of the trial. However, this is not the prevailing view. 4 O.Jur.2d, Appellate Review, Sec. 946. In the case of Tingue v. State of Ohio, 90 Ohio St. 368, 108 N.E. 222 (1914), a trial judge, with the consent of counsel, absented himself during the final argument to write his charge. The Supreme Court affirmed its view previously set forth in Miller v. State, supra, but rejected the theory applied later in Moore v. State, supra, stating:

'The whole doctrine (of error due to the absence of the trial judge) is predicated upon the misconduct of counsel to...