State v. Elliott, 69-845

• Decision Date: 17 March 1971
• Docket Number: No. 69-845,69-845
• Citation: 25 Ohio St.2d 249,267 N.E.2d 806
• Parties: , 54 O.O.2d 371 The STATE of Ohio, Appellee, v. ELLIOTT, Appellant.
• Court: Ohio Supreme Court

Page 249

25 Ohio St.2d 249

267 N.E.2d 806, 54 O.O.2d 371

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

No. 69-845.

Supreme Court of Ohio.

March 17, 1971.

Syllabus by the Court

1. R.C. 2945.25(C) authorizes the challenge of a venireman for cause where his opinions regarding capital punishment would preclude him from either finding an accused guilty of an offense for which the death penalty could be imposed or from ever invoking the death penalty in a case where it is authorized.

2. A character witness may be cross-examined as to the existence of reports of particular acts, vices, or associations of the person concerning whom he has testified which are inconsistent with the reputation attributed to him by the witness-not to establish the truth of the facts, but to test the credibility of the witness, and to ascertain what weight or value is to be given his testimony. Such inconsistent testimony tends to show either that the witness is unfamiliar with the reputation concerning which he has testified, or that his standards of what constitutes good repute are unsound.

Walter Thomas Elliott, appellant herein, was convicted of first degree murder, by jury trial, without a recommendation of mercy.

The Court of Appeals for Stark County affirmed the judgment of conviction.

The cause is before this court as a matter of right pursuant to Section 2 of Article IV of the Ohio Constitution.

David D. Dowd, Jr., Pros. Atty., and Clay E. Hunter, Canton, for appellee.

David L. Kessler and Violet J. Tarcai, Columbus, for appellant.

C. WILLIAM O'NEILL, Chief Justice.

In this case, Miss Violet J. Tarcai represented the appellant in the trial court and in the Court of Appeals and filed the brief in this cause in this court.

David L. Kessler appeared for the appellant in oral argument before this court.

This accounts for the fact that some of the contentions raised in oral argument before this court differed from some of the arguments made in the brief. However, the court is of the opinion that the errors alleged in the brief were broad enough and general enough to encompass and permit the oral arguments which were made to the court in support of the errors alleged in the brief.

Appellant contends that he was denied a trial by a fair and impartial jury because two prospective jurors were challenged for cause and excused in violation of the rule, enunciated in Witherspoon v. Illinois (1965), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, regarding challenge for cause of jurors who hold convictions against capital punishment. However, an examination of the record of the voir dire examination of those two jurors discloses that their dismissal from the panel did not violate the Witherspoon rule.

The prospective jurors, whose dismissals are challenged by appellant, were Marjorie Foster and Virginia Scipione. They were excused as a result of their answers to the following questions. Prospective juror Foster and asked: 'I will ask you whether or not there is any case where you could join in a verdict, join with 11 other jurors in a verdict which would lead to the death of the defendant?' To this she replied: 'I don't think so.' (Emphasis supplied.) Prospective juror Scipione was asked: '(I)f you were selected as a juror in a first degree murder case, regardless of what the evidence showed, regardless of how bad the conduct of the defendant might be, because of your beliefs, you'd be unable to join in a verdict that would require capital punishment?' She replied: 'I think so.' (Emphasis supplied.) Both, therefore, testified that they did not think they could join in a verdict imposing the death sentence.

Although the use of the word 'think' might be said to imply some equivocation, and although voice inflection might be said to be the clue to the precise meaning of these prospective jurors' statements, we are not compelled to delve into those questions because the United States Supreme Court has held that such testimony as that given by Marjorie Foster and Virginia Scipione is a sufficient basis upon which to excuse a prospective juror for cause without violating Witherspoon. Boulden v. Holman (1969), 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433. In Boulden, a venireman was asked: 'You think you would never be willing to inflict the death penalty in any type case?' (Emphasis supplied.) He replied: 'Yes, sir.' As was the case with the statements of the two jurors in the present case, the effect of the affirmative reply of the juror in Boulden was that he did not think he could ever invoke the death penalty. The court, without elaboration, strongly suggested this to be a sufficiently definite statement that the juror would never invoke the death penalty. It follows that, in the instant case, the statements of prospective jurors Foster and Scipione constituted cause for dismissal in compliance with the Witherspoon rule.

Appellant's second contention is that a number of veniremen, whose answers on voir dire allegedly did not bring them within the language of R.C. 2945.25(C), were challenged for cause and excused on the basis of that provision. However, appellant's contention is founded upon a misinterpretation of R.C. 2945.25(C), which provides, inter alia, that a juror may be challenged for the following cause: 'In the trial of a capital offense, that his opinions preclude him from finding the accused guilty of an offense punishable with death.' Appellant would construe that language to mean that a prospective juror may be excused for cause only when his opinions regarding capital punishment would prevent him from joining in a verdict of guilty of an...