State v. Strong

• Decision Date: 28 June 1963
• Citation: 196 N.E.2d 801,119 Ohio App. 31
• Parties: , 26 O.O.2d 134 STATE of Ohio, Plaintiff-Appellee, v. Kenneth M. STRONG, Defendant-Appellant. *
• Court: Ohio Court of Appeals

Page 31

119 Ohio App. 31

196 N.E.2d 801, 26 O.O.2d 134

STATE of Ohio, Plaintiff-Appellee, v. Kenneth M. STRONG, Defendant-Appellant. ^*

Court of Appeals of Ohio, Fifth District, Stark County.

June 28, 1963.

Norman J. Putman, Pros. Atty., for plaintiff-appellee.

Nicholas C. Caplea and Harry W. Schmuck, Canton, for defendant-appellant.

McLAUGHLIN, Judge.

This is an appeal from a conviction and death sentence in a First Degree Murder case.

The defendant shot and killed his wife, Iris Strong, on March 2, 1962 at a Canton barroom known as the Gay Nineties, which they owned jointly.

They lived in Alliance, had no children of their own, but a four year old foster child lived with them. One, Audrey Ross, who worked for them as a barmaid also lived there.

Late on the night before the killing, the defendant took Audrey Ross to their home. Mrs. Strong, the deceased, in a jealous rage, threatened defendant with a shotgun. They had for sometime been quarreling, bickering, threatening each other, she had threatened suicide, and been making trouble calls to the Canton and Alliance police.

At about 6:00 A.M. on the morning of the shooting, the defendant and Audrey Ross came back to Canton to the barrom. Sometime later the wife followed and there were various events happening during the day in continuation of their quarreling. The wife, who had been drinking, hired a private detective. She took the money bag from the bar's cash register and it was cut open in the detective's office and she stored the defendant's car in a garage. Then she returned to the bar where the quarrels continued.

Immediately prior to the shooting, the private detective came to the barroom and the wife followed him into the men's room. She came out after awhile and said to the defendant, 'I have enough on you to send you to jail for life'. In the meantime, the defendant had procured a gun and sat down at a back table concealing the gun under his leg. He later stated, 'I waited for her to say something that would inflame me to commit such an act'. He waited for about a half an hour. The wife whispered to a customer sitting at the bar who laughed. The defendant went behind the bar and shot and killed Iris Strong. He fired four bullets, three of which entered her body. The private detective then fired three shots, two of which entered the defendant's abdomen. Then the defendant shot at the detective but missed.

The defendant gave the investigating authorities three statements which were reduced to writing and received over objection at the trial.

First was a rather full confession of the murder of his wife, Iris strong.

The second was a like confession that in August 1961 he, with the aid of Iris Strong, his wife, robbed and killed one, James Crawford, an antique dealer, at his home in Reedurban between Canton and Massillon. Iris Strong drove the defendant to the Crawford home and picked him up after the Crawford murder.

The third was a statement that he and another man on or about June 20, 1961 with the aid of Iris Strong had disguised themselves and by pretense of being police officers obtained entry into the home of one, Ben Adelman, and at gun point robbed and looted that home. Iris Strong's participation in this crime consisted in helping the two men disguise themselves.

The defendant was tried, found guilty without a recommendation of mercy, and sentenced accordingly. He has perfected his appeal to this court.

The First Assignment of Error is that the court erred in failing to discharge the entire panel of jurors for prejudicial remarks and comments by a juror during the voir dire examination. One, Sarah Davis, was called as prospective juror, her number being 29. She was examined by the Prosecutor, who asked the following questions:

'DIRECT EXAMINATION BY MR. PUTMAN

'Q Mrs. Davis, the record in the Jury Commission Office indicates that when they inquired of you concerning your service here, that you told them in substance that you were opposed to capital punishment. Is their record correct?

'A I usually don't believe in capital punishment but in this case I do.

'Q I see. Would it--I understand you to mean in cases of where the facts are some way it makes a difference as distinguished from other sorts of cases, is that what you mean?

'A Yes. This man, he killed two people and----

'Q Now before----

'A (Continuing) and a dog.

'Q Now before I mislead you somehow to giving some answers that might affect the other prospective jurors, let me ask you--without going into detail--would--is it fair to say you have an opinion about this particular case,--and I am not asking you what it is.

'A Yes, I definitely do.

'Q See, we have certain legal rules and I want to be very careful----

'A (Interrupting) I certainly do.

'Q (Continuing) and don't want to cause someone to cross over them. I gather from the feelings you expressed, you probably couldn't put those feelings aside and begin this case impartially?

'A That's right, I couldn't and be fair about it.

'THE COURT: All right, Mrs. Davis, the Court appreciates your being frank and honest about it, so you will be excused.

(AT THIS POINT MRS. DAVIS STEPS DOWN FROM WITNESS STAND)

'Mr. SCHMUCK: (Quietly) Now comes the defendant and moves the Court to dismiss the entire jury by reason of the highly prejudicial and inflammatory statements made by the previous juror--member of the Venire--in the presence of the entire other jurors.

AT THIS POINT ABOVE MOTION MADE BY MR. SCHMUCK READ TO THE COURT (QUIETLY) BY THE REPORTER.

'THE COURT: Ladies and Gentlemen of the Jury--of the Jury Panel, during--you are in a position to hear the answers of some of these prospective jurors, and, of course, you are to give no significance whatever to any opinions expressed by any juror who is being qualified to sit on this jury, so whatever you may hear from any juror you are not to give that any consideration. In the event that you are selected to sit on this jury, that isn't your reason--your function at all.'

Two questions immediately arise from the particular words of this prospective joror, 'This man killed two people and a dog', as to whether or not these remarks in the presence of other prospective jurors were so highly prejudicial and inflammatory as to constitute reversible error per se. It must be remembered that this was at the very beginning of this trial in which the supreme death penalty was demanded by the State. When this prospective juror said, 'I usually don't believe in capital punishment but in this case I do', the Prosecutor should have stopped any further interrogation and it was the duty of the court to make him do so. The court should on its own motion have protected the defendant from this kind of a court room atmosphere and the failure so to protect him especially after his counsel moved and demanded such protection was erroneous and prejudicial. Eight other prospective jurors were seated in the box and heard this statement. Six of them actually served upon the jury which meted out the death penalty. It should be noted also that it was impossible for defense counsel to object and stop this interrogation or engage in questioning them without emphasizing before the panel the very words which the prospective juror had said. It is also noted that the defense did not have enough preemptory challenges to remove all of those prospective jurors who had heard the damaging words. We are cognizant of the fact that the defendant used only five of his six preemptory challenges. Yet it is apparent that his use of the one remaining would have still left on the jury five jurors who had heard the damaging remarks of Mrs. Davis.

The second question arising with respect to this claimed error is whether or not the admonition of the court was sufficient to cure the alleged error of these remarks.

It must be remembered that the defendant in this particular case was on trial for his life and these remarks coming at the very beginning of the trial while the stage was being set, were particularly damaging to the constitutional rights of the defendant to be tried for the murder of Iris Strong only, and for the defendant to have the guaranteed presumption of innocence carried through the whole course of this trial until all the evidence has been presented. Who is to say to what extent these remarks by this prospective juror may or may not have contributed to the jury's verdict which carried with it the death penalty. Such remarks as this prospective juror made at that particular time might have been the difference between life and death to this defendant. The conduct of the Prosecutor in continuing his examination after the juror had definitely expressed an opinion, and the neglect of the court to stop the proceedings at that point, in our opinion, constitute such prejudicial error and created such an atmosphere that must have affected the whole course of the trial including the jury's deliberations to such an extent that it cannot be said that the defendant in this particular case was afforded that fair trial guaranteed by the Federal and State constitutions. A man on trial for his life is entitled to insist that the State observe all the rules and limitations which the State itself has enacted which are conducive to a fair and impartial trial.

It is urged that because the evidence of guilt in this case is so overwhelming that this alleged error should be ignored. Such argument has merit in the ordinary criminal case. To our minds it does not apply in a capital case.

It is also urged that the error is cured by the court's admonition to the jury and without citation of authority, the prosecution has said that the same rule applies as to any improper argument or misconduct by the Prosecutor where such an admonition, as was given here, is made. Such contention has merit in the ordinary criminal case but in a capital case where a man is on trial for his life, in our opinion, such an error was...