State v. Ruppert

Citation375 N.E.2d 1250,54 Ohio St.2d 263
Decision Date17 May 1978
Docket NumberNo. 77-1022,77-1022
Parties, 8 O.O.3d 232 The STATE of Ohio, Appellant and Cross-Appellee, v. RUPPERT, Appellee and Cross-Appellant.
CourtUnited States State Supreme Court of Ohio

Syllabus by the Court

1. Where an accused, charged with a capital offense, knowingly, intelligently, and voluntarily waives his right to a trial by jury pursuant to R.C. 2945.05 and Crim.R. 23(A), and is subsequently tried before a three-judge panel, the panel may render a verdict upon a majority vote of its members pursuant to R.C. 2945.06.

2. An accused, charged with a capital offense, has not knowingly, intelligently, and voluntarily waived his right to a trial by jury where, prior to waiving this right, he is misinformed that the three-judge panel may render a verdict pursuant to R.C. 2945.06 only by unanimous vote.

James U. Ruppert, (defendant herein), was indicted by the Butler County grand jury on March 30, 1975, in 11 counts for purposely, and with prior calculation and design, causing the deaths of Charity Ruppert, Teresa Lee Ruppert, Carol Diane Ruppert, Michael James Ruppert, David Scott Ruppert, John Anthony Ruppert, Alma Ruppert, Ann Delores Ruppert, Leonard Ruppert, Jr., Leonard Ruppert, III, and Thomas Frank Ruppert, in violation of R.C. 2903.01(A), with the specification to each count that the offense was part of a course of conduct involving the purposeful killing of two or more persons contrary to R.C. 2929.04(A)(5).

Defendant entered a plea of not guilty and not guilty by reason of insanity to each of the counts and specifications. On May 13, 1975, the trial court determined that defendant was sane and of sufficient soundness of mind to stand trial.

Accompanied by his co-counsel, Hugh Holbrock and H. J. Bressler, defendant waived his right to a jury trial in open court on June 6, 1975.

Trial commenced before a three-judge panel on June 16, 1975, and on July 3, 1975, a majority of the court found defendant guilty of each of the 11 counts of aggravated murder and specifications. The majority found further that defendant was sane at the time he committed the offense.

Unable to unanimously find that none of the mitigating circumstances set forth in R.C. 2929.04(B) was established by a preponderance of the evidence at the mitigation hearing, the court sentenced defendant to life imprisonment for each of the 11 counts, the sentences to run consecutively.

Defendant subsequently filed a motion for new trial, later amended, in which he contended, in part, that because he was misinformed about the number of judges necessary to render a verdict on a three-judge panel, his waiver of a jury trial was not knowingly, intelligently, or voluntarily made. In the alternative, defendant contended that he was denied a fair trial since the verdict was reached by a majority vote of the panel rather than by a unanimous vote.

On July 22, 1975, the three-judge panel conducted a hearing on defendant's motion for new trial based on the testimony and affidavits of James U. Ruppert and defense attorney Hugh D. Holbrock, and on the submitted affidavits of Judge Cramer (the judge who originally accepted appellee's jury waiver and who also sat on the three-judge panel which tried the cause), prosecutor John F. Holcomb, and defense attorney H. J. Bressler. The testimony and affidavits reflect that prior to the date of the trial, defense counsel informed their client that if his case were tried to a three-judge panel, a unanimous verdict would be required to find him guilty as charged.

Also, prior to trial, Judge Cramer indicated to the defense counsel that he agreed with this interpretation of the law.

When, on June 6, 1975, Ruppert appeared in open court before Judge Cramer to waive his right to trial by jury, the following colloquy took place between Ruppert and the judge:

"Q. (J. Cramer) Now, you understand that when you are tried by a jury which you are waiving, before you can be found guilty or not guilty of any one or all of the 11 counts, all 12 of the jurors must agree?

"A. (Ruppert) Yes, sir.

"Q. But where three judges hear the case as you have consented and asked to be done, just all three have to agree?

"A. Yes, sir.

"Q. You understand that?

"A. Yes, sir.

"Q. You also understand, do you, that if you have a jury that before they can find in accordance with your defense that you were sane or insane at the time of the alleged commission of said offenses, all 12 of the jurors must agree. However, if three judges hear your case as you have requested to be done before the three judges can find that you were sane or insane at the time of the alleged commission of the offenses, all three must agree on that?

"A. Yes, sir.

"Q. I'm pointing this out to you, the difference between when the jury hears a case and three judges.

"A. Yes, sir.

"Q. And you wish to without any question, to waive your trial by jury is that right?

"A. Yes, sir.

"Q. Is there anything you want to ask the Court in reference to this? Anything you don't understand about the jury waiver?

"A. No, sir."

On June 16, 1975, immediately prior to commencement of the trial before the three-judge panel, a conference took place among all the counsel and judges participating in the cause. The subject of the three-judge panel and the number of judges necessary to render a verdict was discussed. Although there was disagreement among the members of the conference concerning the matter, a decision as to the proper rule of law was not made at that time. Apparently, Ruppert was never told that there were serious questions concerning the number of votes necessary to convict under a three-judge panel. *

After hearing the testimony and reviewing the affidavits and evidence of record concerning the events surrounding the jury waiver, a majority of the trial court overruled defendant's motion for new trial on the basis that he must have decided to waive a jury trial not only because of his reliance on information furnished by defense counsel and the court concerning the unanimity of the three-judge panel in rendering a guilty verdict, but also because of several other important tactical considerations. The majority reasoned, inter alia, that defendant must have been informed by his counsel that in the sentencing stage of an aggravated murder trial tried by a three-judge panel a sentence of death requires the unanimity of three judges as compared with the decision of one judge in a jury trial.

On appeal, the Court of Appeals reversed the judgment and sentence of the trial court and remanded the cause for a new trial on the basis that defendant could not have knowingly, intelligently, and voluntarily waived his right to a jury trial where he was misinformed about the number of judges necessary to convict on a three-judge panel.

The cause is now before this court upon the allowance of a motion and cross-motion for leave to appeal.

John F. Holcomb, Pros. Atty., and Daniel G. Eichel, Hamilton, for appellant and cross-appellee.

Holbrock, Jonson, Bressler & Houser, Hugh D. Holbrock and H. J. Bressler, Hamilton, for appellee and cross-appellant.

SWEENEY, Justice.

The first issue confronting this court is whether an accused charged with an offense punishable by death who has waived his right to a trial by jury may be convicted only by a unanimous vote of the three-judge panel. R.C. 2945.06 clearly provides that in a criminal case involving the death penalty tried to a panel of three judges the " * * * judges or a majority of them may decide all questions of fact and law arising upon the trial, and render judgment accordingly."

Although the above portions of R.C. 2945.06 have never been repealed, it is contended that the provisions have been repealed by implication since under the new sentencing procedures set forth in R.C. 2929.03, it is provided that the death sentence may only be imposed by a three-judge panel when it unanimously finds that none of the mitigating circumstances listed in R.C. 2929.04(B) have been established by a preponderance of the evidence. R.C. 2929.03(E). It is reasoned that if a majority of the judges was empowered to enter a verdict in the guilt determining phase of the trial, then presumably, in this situation, there would be no need for a mitigation hearing, since the dissenting judge would prevent a unanimous finding with respect to the absence of any of the mitigating circumstances. If it happened, upon conducting a mitigation hearing in such a situation, that the three-judge panel were to agree unanimously that none of the mitigating circumstances existed by a preponderance of the evidence, a totally unacceptable situation would result.

In support of the contention that R.C. 2945.06 has been repealed by implication is the committee comment to R.C. 2929.03 reflecting the belief that no matter whether the capital case is tried to a twelve-member jury or a three-judge panel, the verdict must be unanimous.

Repeals by implication are disfavored in the law. State, ex rel. Toerner, v. Common Pleas Court (1971), 28 Ohio St.2d 213, 217, 277 N.E.2d 209; Cincinnati v. Thomas Soft Ice Cream (1977), 52 Ohio St.2d 76, 79, 369 N.E.2d 778. Only where the provisions of the two statutes are irreconcilable by any means of interpretation (In re Hesse (1915), 93 Ohio St. 230, 234, 112 N.E. 511) or are so repugnant to or contradictory with each other as to evidence an intent on the part of the General Assembly to change the statutory law will this court conclude that the earlier statute has been superseded by the later statute, and therefore of no force and effect. Goff v. Gates (1912), 87 Ohio St. 142, 100 N.E. 329; Henrich v. Hoffman (1947), 148 Ohio St. 23, 26, 72 N.E.2d 458.

For example, in State v. Miller (1977), 49 Ohio St.2d 198, at 204, 361 N.E.2d 419, this court was confronted with the issue of whether that portion of R.C. 2945.06 granting the court the power to reduce punishments for capital offenses to life imprisonment...

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