State v. Procter

• Decision Date: 16 March 1977
• Citation: 367 N.E.2d 908,5 O.O.3d 309,51 Ohio App.2d 151
• Parties: , 5 O.O.3d 309 The STATE of Ohio, Appellee, v. PROCTER et al., Appellants.
• Court: Ohio Court of Appeals

Page 151

51 Ohio App.2d 151

367 N.E.2d 908, 5 O.O.3d 309

The STATE of Ohio, Appellee, v. PROCTER et al., Appellants.

Court of Appeals of Ohio, Fourth District, Scioto County.

March 16, 1977.

Syllabus by the Court

1. Administrative punishment of an escaped prisoner by prison authorities does not bar a subsequent criminal prosecution for escape under R. C. 2921.34(A) by reason of the double jeopardy provisions of either the United States or Ohio Constitutions.

2. When a court itself conducts the voir dire examination in a criminal case pursuant to Crim.R. 24(A), it is error to refuse counsel the opportunity to supplement the examination by personal inquiry of the prospective jurors.

3. It is prejudicial error in a prosecution for a violation of R. C. 2921.34(A) to refuse to submit a defense of duress to the jury when that defense is properly supported by evidence.

Christopher D. Stanley, Cleveland, for appellants.

Lynn A. Grimshaw, Portsmouth, for appellee.

STEPHENSON, Judge.

This is an appeal from judgments of conviction entered by the Scioto County Court of Common Pleas, upon jury verdicts returned in a joint trial finding Johnny C. Procter, Donald Tucker and Wilborn Harrell, appellants herein, guilty of violating the escape statute, R. C. 2921.34(A), a fourth degree felony. Pursuant to subdivision (C) of that statute, appellants were sentenced to a one to five year term to be served consecutively to their present sentence. Although appellants did not include in their brief, pursuant to App.R. 16(A) (2), formal assignments of error, it did include the following questions, which this court has numbered. They will be treated as assignments of error:

1. "Did jeopardy attach at the RIB hearing, thereby requiring the court to grant the motion to dismiss because a trial would violate the ban against double jeopardy?"

2. "Did the trial court err by not allowing defense counsel to personally question the jury panel?"

3. "Were the defendants entitled to a change of venue?"

4. "Did the trial court err by not instructing the jury on the law of duress?"

The record reflects that appellants were inmates of the Southern Ohio Correctional Facility, a maximum security penal institution of the state of Ohio. At trial, appellants did not contest the evidence of the state that they, and other inmates, had escaped from their place of confinement through a window and were outside of a penitentiary building, but inside the outer fence surrounding the institution, when apprehended. Nor did they contest the state's evidence that appellants were under lawful detention. Appellants conceded, in effect, they had escaped. Appellants, by their evidence, attempted to assert a defense of duress, which defense the court refused to submit to the jury. The facts which constituted the claimed duress are set forth under the fourth assignment of error.

The argument in support of the appellants' first assignment of error is that they had already been punished for the act of escape through administrative action by the rules infraction board of the Southern Ohio Correctional Facility and that any further court proceeding would violate their constitutional guarantee against double jeopardy. We hold such claim to be without merit both under the Ohio and United States Constitutions.

The applicability of Section 10, Article I, of the Ohio Constitution is foreclosed for the reason that there must be prior judicial action. Legal jeopardy under the Ohio Constitution does not arise unless the former proceeding was in a court possessing jurisdiction to try the charge. State v. Rose (1914), 89 Ohio St. 383, 106 N.E. 50; Crowley v. State (1916), 94 Ohio St. 88, 113 N.E. 658. It follows that administrative punishment or discipline was not a bar. For other state courts reaching the same conclusion, see State v. Tise (Me.1971), 283 A.2d 666; State v. Shoemaker (1968), 273 N.C. 475, 160 S.E.2d 281; State v. Gonyer (1960), 102 N.H. 527, 162 A.2d 172; State v. Lebo (1971), 129 Vt. 449, 282 A.2d 804; State v. Williams (1960), 57 Wash.2d 231, 356 P.2d 99; State v. Maddox (1973), 190 Neb. 361, 208 N.W.2d 274; State v. Williams (1972),208 Kan. 480, 493 P.2d 258; Shuman v. Nevada (1974), 90 Nev. 227, 523 P.2d 841.

The Fifth Amendment double jeopardy standards of the United States Constitution are now applicable to the states, via the Fourteenth Amendment. Benton v. Maryland (1969), 395 U. S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, overruling Palko v. Conn. (1937), 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. The federal courts have consistently held that administrative discipline is not a bar to a prosecution for a criminal offense by reason of double jeopardy. United States v. Apker (C.A. 9, 1969), 419 F.2d 388; Mullican v. United States, (C.A. 5, 1958), 252 F.2d 398; Paterson v. United States (C.A. 4, 1950), 183 F.2d 327, certiorari denied, 340 U.S. 893, 71 S.Ct. 200, 95 L.Ed. 647; Keaveny v. United States (C.A. 5, 1969), 405 F.2d 821.

Appellants cite Breed v. Jonas (1975), 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, as authority to support their claim. We find it inapplicable. We note (1) that the initial hearing was a court proceeding, in juvenile court, and (2) the application of the double jeopardy provision therein was consistent with the prior decision of that court which, in effect, equated juvenile court proceedings with criminal prosecutions. Administrative penalties imposed upon a prisoner for escape are not proceedings "essentially criminal" to which the federal jeopardy protection applies.

Finally, we would note appellants' reliance upon the decision of the Eighth District Court of Appeals, styled In re Lamb (1973), 34 Ohio App.2d 85, 296 N.E.2d 280. From our research, it stands alone in applying constitutional double jeopardy provisions to punishment imposed by prison authorities. To the extent that it is distinguishable, in that the court proceeding occurred first, we distinguish it; to the extent that it would make double jeopardy protections applicable, by reason of prison disciplinary proceedings, we decline to follow it. The first assignment of error is overruled.

In the second assignment of error, it is asserted that the trial court erred, after conducting the voir dire examination, in refusing to allow counsel for appellants to personally direct further inquiry to the prospective jurors. Crim.R. 24(A) provides the following:

"Examination of jurors. Any person called as a juror for the trial of any cause shall be examined under oath or upon affirmation as to his qualifications. The court may permit the attorney for the defendant, or the defendant if appearing pro se, and the attorney for the state to conduct the examination of the prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the state and defense to supplement the examination by further inquiry." (Emphasis added.)

The record discloses that prior to trial, the trial court, sua sponte, entered an order to the effect that the court would conduct the voir dire and that any general questions to the entire panel desired by appellants were required to be reduced to writing and filed. Particular questions to an individual juror by counsel, "if deemed appropriate by the court," would be allowed at the time of the jury interrogation. It appearing at the time of trial that counsel had not received the pre-trial order, the court allowed the oral submission of questions, some of which the court gave and some of which the court denied. Counsel was not allowed to personally address the jurors at any stage in the voir dire questioning. The opportunity was offered to counsel to propound additional questions after the general voir dire by the court. None was tendered, but an objection was again taken to the voir dire procedure.

Prior to the adoption of the Criminal Rules, R. C. 2945.27 provided that, after the examination of prospective jurors by the court, "he shall permit reasonable examination of such jurors by the prosecuting attorney and by defendant or his counsel." Under this statute the settled Ohio practice has always been to allow counsel the opportunity to personally examine prospective jurors. State v. Anderson (1972), 30 Ohio St.2d 66, 282 N.E.2d 568. The question here is whether it was intended by Crim.R. 24(A) to allow the trial court to foreclose any personal inquiry of the jurors by counsel. The authorities outside Ohio, under their particular rule or statute, if any are in conflict. See annotation, 73 A.L.R.2d 1187.

We conclude that no such sweeping change was intended in the Ohio law by the rule for a number of reasons. The procedure adopted by the court is basically that utilized in federal criminal trials pursuant to Fed.R.Crim.P. 24, which provides, in part:

"(a) Examinations. The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper." (Emphasis added.)

Because of the specific authorization in the emphasized portion of the rule, most federal courts conduct the voir dire examination and allow counsel to only submit questions for further inquiry. See 26 F.R.D. 465, 466. Many states likewise permit voir dire examination solely by the court. People v. Crowe (1973), 8 Cal.3d 815, 106 Cal.Rptr. 369, 506 P.2d 193. Even so, we deem it significant that when Crim.R. 24(A) was adopted the emphasized portion of its counterpart, Fed.R.Crim.P. 24, was omitted. Had the federal procedure been intended to be adopted in Ohio, it would appear reasonable the phraseology of the federal rule would have been...