State v. Moore

• Decision Date: 04 February 1998
• Docket Number: No. 96-2204,96-2204
• Citation: 689 N.E.2d 1,81 Ohio St.3d 22
• Parties: The STATE of Ohio, Appellee, v. MOORE, Appellant.
• Court: Ohio Supreme Court

Page 22

81 Ohio St.3d 22

689 N.E.2d 1

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

No. 96-2204.

Supreme Court of Ohio.

Submitted Oct. 21, 1997.

Decided Feb. 4, 1998.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and William E. Breyer, Assistant Prosecuting Attorney, for appellee.

Elizabeth E. Agar and Julia A. Sears, Cincinnati, for appellant.

PFEIFER, Justice.

Moore presents twenty-six propositions of law for our consideration. We have considered all of the propositions of law raised by Moore and have independently reviewed Moore's death sentence for appropriateness and proportionality. For the reasons that follow, we affirm the judgment of the court of appeals and uphold the death sentence.

Pretrial Issues

In his first proposition of law, Moore argues that he was denied due process when the trial court denied his motion to reassign the trial judge. Judge William J. Morrissey was assigned by lot to Moore's capital case pursuant to Loc.R. 7(H) of the Court of Common Pleas of Hamilton County. He ruled on several pretrial motions and presided at the suppression hearing. On October 31, 1994, Judge Morrissey filed an entry disqualifying himself because he was "[h]eavily involved in other cases." That same day, the common pleas administrative judge reassigned the case to Judge Robert P. Ruehlman.

Defense counsel filed a motion to reassign the trial judge pursuant to Loc.R. 7 of the Court of Common Pleas of Hamilton County ("Local Rule 7"). Defense counsel asserted that the reassignment by the administrative judge was inappropriate, since Local Rule 7(H) contemplates a separate assignment by lot in death penalty cases.

Local Rule 7(E) provides that when a judge properly disqualifies himself from a case, the case will be reassigned pursuant to Sections (B) and (C) of Local Rule 7. Section (C) of Local Rule 7 provides that when a date has been set for trial and counsel for the parties acknowledge their readiness to proceed to trial, the administrative judge may assign the case "to any judge of that division who is not engaged in the trial of a cause at that time * * *."

Moore contends that Section (H) of Local Rule 7 should apply, since it specifically directs that assignments of capital cases be undertaken by lot. However, Section (H) does not provide for reassignment by lot when a judge becomes disqualified from a capital case.

Moore contends that even assuming that Section (C) applies to this case, that provision was not followed because counsel never acknowledged their readiness to proceed to trial. Nothing in the record indicates that the parties did not acknowledge their readiness to proceed to trial. Defense counsel never raised this issue in their motion for reassignment or during the court session when Judge Ruehlman considered the matter prior to trial. Moreover, nothing in the record suggests that Moore's counsel were unprepared to proceed on the date set for trial. The first proposition of law is rejected.

In his second proposition of law, Moore argues that the trial court abused its discretion by denying his motion for individual sequestered voir dire. Moore alleges that remarks made by two prospective jurors supporting capital punishment "contaminated" the entire venire. The comments Moore complains of were isolated and their effect on the venire is purely speculative. More important Moore fails to persuasively demonstrate that he was prejudiced by these remarks.

The manner of conducting voir dire is within the sound discretion of the trial court. State v. Landrum (1990), 53 Ohio St.3d 107, 117, 559 N.E.2d 710, 723; State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph two of the syllabus. Since no abuse of discretion is apparent, State v. Maurer (1984), 15 Ohio St.3d 239, 250, 15 OBR 379, 389, 473 N.E.2d 768, 780, Moore's second proposition of law is rejected.

In his third proposition of law, Moore complains that the trial court erred in permitting the prosecution to obtain promises from prospective jurors that they could sign a death verdict specifically against Moore. Moore failed to object to these questions and, therefore, has waived all but plain error. State v. Campbell (1994), 69 Ohio St.3d 38, 40-41, 630 N.E.2d 339, 344; State v. Slagle (1992), 65 Ohio St.3d 597, 604, 605 N.E.2d 916, 924-925. Plain error is absent here. Moreover, this court has upheld voir dire questioning where prospective jurors were asked whether they could impose death "upon the defendant" or on "this particular defendant." See State v. Evans (1992), 63 Ohio St.3d 231, 249-250, 586 N.E.2d 1042, 1057-1058; State v. Lorraine (1993), 66 Ohio St.3d 414, 424-425, 613 N.E.2d 212, 221. Accordingly, the third proposition of law is rejected.

In his fourth proposition of law, Moore claims that he was denied a fair trial due to errors during voir dire. He propounds four arguments which we will address in turn.

First, Moore argues that the death qualification of prospective jurors produced a jury that did not represent a fair cross-section of the community. Apparently, Moore assumes that a jury representing a fair cross-section of the community would include persons "opposed to the death penalty." However, the United States Supreme Court has stated that petit juries are not required to reflect the composition of the community at large and that persons opposed to the death penalty do not constitute a "distinctive group" for purposes of a cross-section claim. Lockhart v. McCree (1986), 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137. Thus, we have repeatedly upheld the type of death-qualification questioning criticized by Moore. See, e.g., State v. Steffen (1987), 31 Ohio St.3d 111, 120-121, 31 OBR 273, 281, 509 N.E.2d 383, 392-393; Landrum, supra, 53 Ohio St.3d at 118, 559 N.E.2d at 723; State v. Grant (1993), 67 Ohio St.3d 465, 476, 620 N.E.2d 50, 64.

Second, Moore asserts that exclusion of persons opposed to the death penalty results in a jury biased in favor of guilt and in favor of imposing the death penalty. We reject this argument on the authority of Lockhart v. McCree, supra.

Third, Moore contends that prospective jurors Warren and Savage were improperly excused for cause because they expressed reservations about the death penalty. Prospective juror Warren was extensively questioned by both parties and the trial judge about whether she could vote to impose a death sentence. She said repeatedly that she would not sign a verdict imposing the death penalty, stating that her views were "religiously based." Prospective juror Savage stated that she could not vote for the death penalty, and indicated that her views against the death penalty would substantially impair her ability to follow her oath and the judge's instructions.

Where the trial court has the definite impression that a prospective juror will be unable to faithfully and impartially apply the law, deference must be given to the trial judge who sees and hears the prospective juror. State v. Beuke (1988), 38 Ohio St.3d 29, 38, 526 N.E.2d 274, 284-285, citing Wainwright v. Witt (1985), 469 U.S. 412, 425-426, 105 S.Ct. 844, 853, 83 L.Ed.2d 841, 852-853. Here, both excused jurors expressed views that would prevent them from fulfilling their duties as jurors. We conclude that the trial court did not abuse its discretion in excusing the jurors for cause. See State v. Tyler (1990), 50 Ohio St.3d 24, 30, 553 N.E.2d 576, 587; State v. Wilson (1972), 29 Ohio St.2d 203, 211, 58 O.O.2d 409, 414, 280 N.E.2d 915, 920.

Last, Moore asserts that the use of peremptory challenges to excuse prospective jurors who expressed reservations about imposing the death sentence violates Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. Moore's argument is misplaced because the Witherspoon holding was substantially altered in Wainwright v. Witt, supra, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841. See State v. Rogers (1985), 17 Ohio St.3d 174, 177-178, 17 OBR 414, 417, 478 N.E.2d 984, 989. Moreover, prosecutors can exercise peremptory challenges for any reason except to exclude jurors based on gender or race. See, e.g., State v. Seiber (1990), 56 Ohio St.3d 4, 13, 564 N.E.2d 408, 419. The fourth proposition of law is rejected.

In his fifth proposition of law, Moore raises two arguments concerning the composition of the venire. First, Moore contends that the trial court erred in refusing a continuance to allow him to present evidence supporting his motion for a reconstituted venire. Moore alleges that the venire was composed unfairly because a large percentage of African-Americans are not registered to vote and therefore only five of the fifty members composing the jury pool were African-Americans. Moore asserted at the beginning of voir dire that such a venire did not represent a fair cross-section of the community, and that use of licensed drivers lists or Social Security numbers would attain a fairer representation from the black community. The court denied Moore's motion for a continuance and overruled his motion for a new venire.

The decision to grant a continuance is within a trial court's discretion. State v. Claytor (1991), 61 Ohio St.3d 234, 241, 574 N.E.2d 472, 478. "In order to establish a violation of the fair representative cross-section of the community requirement for a petit jury array * * *, a defendant must prove: (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the representation is due to systematic exclusion of the group in the jury-selection process." State v. Fulton (1991), 57 Ohio St.3d 120, 566 N.E.2d 1195, paragraph two of the syllabus, following Duren v. Missouri (1979), 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, 586-587.

Assuming that Moore can prove the first prong...