State v. Thomas
| Decision Date | 13 February 1980 |
| Docket Number | No. 79-207,79-207 |
| Citation | 61 Ohio St.2d 223,400 N.E.2d 401,15 O.O.3d 234 |
| Parties | , 15 O.O.3d 234 The STATE of Ohio, Appellant and Cross-Appellee, v. THOMAS et al., Appellees and Cross-Appellants; Rieder, Cross-Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Generally, a trial court has a legal duty to comply with the literal language of Crim.R. 23(B) and afford a misdemeanant a jury composed of eight members (State ex rel. Columbus v. Boyland, 58 Ohio St.2d 490, 391 N.E.2d 324); nevertheless, the providing of a jury of twelve in misdemeanor cases, where a misdemeanant is jointly indicted and tried with a felon pursuant to Crim.R. 8, is not prejudicial to the rights of the misdemeanant.
Statement of the Case.
Oscar Thomas, Tory J. Gainer and Richard A. Rieder were jointly indicted for one count each of gambling (R.C. 2915.02) and operating a gambling house (R.C. 2915.03). The indictment alleged that Rieder had a prior conviction for a gambling offense, thus raising the charges against him from misdemeanors of the first degree to felonies of the fourth degree.
Defendants filed a motion to suppress evidence and moved further to dismiss the second count of the indictment. Defendants Thomas and Gainer requested a severance from defendant Rieder. The trial court overruled the motions.
At trial, the state presented testimony of numerous law enforcement officers from several agencies detailing the defendants' presence, on various dates in August 1977, at a building in Roseville, Ohio. A search of the building was conducted pursuant to a search warrant on August 30, 1977.
Several officers testified concerning the search. The testimony of the officers, together with the items seized during the search, tended to establish that a bookmaking operation had been taking place on the premises. Other evidence tended to show that defendants had control of the premises during the course of the alleged bookmaking operation, and were participants therein. Defendant Rieder stipulated to a prior conviction for a gambling offense.
At the close of this evidence, the state rested. Defendants elected to present no evidence. The jury returned verdicts of guilty on all counts against the three defendants.
Defendants appealed. The Court of Appeals reversed the convictions of defendants Thomas and Gainer on the ground that, as alleged misdemeanants, they were improperly tried by a jury of twelve rather than a jury of eight, pursuant to Crim.R. 23(B). The court affirmed the felony conviction of defendant Rieder.
The cause is before this court upon allowance of the state's motion and defendants' cross-motion for leave to appeal.
Richard E. Bridwell, Pros. Atty., for the State of Ohio.
William W. Lamkin, Columbus, for Oscar Thomas, Tory J. Gainer and Richard A. Rieder.
Thomas J. Livingston, Pittsburgh, Pa., for Tory J. Gainer.
Appellant, state of Ohio, argues that the Court of Appeals erred in reversing the convictions of defendants-appellees, Thomas and Gainer, for noncompliance with Crim.R. 23(B), which, in part, provides that "(i)n misdemeanor cases juries shall consist of eight." Appellant urges this court to avoid a rigid and inflexible interpretation of Crim.R. 23(B), and argues that the rule must be read in light of the liberal joinder provisions of Crim.R. 8(B). In response, appellees assert that the language of Crim.R. 23(B) is mandatory in character. They also contend that the Court of Appeals correctly held that separate trials are required where an alleged misdemeanant is indicted jointly with an alleged felon.
While it is true in most instances that a trial court has a legal duty to comply with the literal language of Crim.R. 23(B), State ex rel. Columbus v. Boyland (1979), 58 Ohio St.2d 490, 493, 391 N.E.2d 324, we agree with appellant that a hypertechnical reading of the rule would defeat the purposes of the Rules of Criminal Procedure under the facts of this cause.
Crim.R. 1(B) provides that:
In an effort to effectuate these purposes, this court promulgated Crim.R. 8(B), which governs joinder of defendants, and provides as follows:
Joinder of defendants and the avoidance of multiple trials is favored in the law for many reasons. Joinder conserves judicial and prosecutorial time, lessens the not inconsiderable expenses of multiple trials, diminishes inconvenience to witnesses, and minimizes the possibility of incongruous results in successive trials before different juries.
In this cause, the three defendants were alleged to have participated in the same illegal acts. There was no misjoinder of defendants; the prerequisites of Crim.R. 8(B) were met. Thereafter, in order to obtain a severance, it was incumbent upon appellees to demonstrate that the joinder was prejudicial within the meaning of Crim.R. 14. In pertinent part, Crim.R. 14 provides that:
"If it appears that a defendant * * * is prejudiced by a joinder * * * of defendants in an indictment * * * the court shall * * * grant a severance of defendants, or provide such other relief as justice requires."
We cannot agree with appellees that the fact that the trial would take place before a jury of twelve, rather than before a jury of eight, could present a sufficient appearance of prejudice to warrant a severance of defendants.
First, no constitutional right has been interfered with here. In that Thomas and Gainer had been charged with misdemeanors having a maximum penalty of six months in jail, the state of Ohio could have subjected these defendants to a trial without a jury and still not infringed upon their rights under the United States Constitution. Cheff v. Schnackenberg (1966), 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629; Duncan v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491.
Ohio law does provide for a jury trial in misdemeanor cases where a jail penalty is provided. We hold that the meaning and intent of the language of this rule is that the misdemeanant will be afforded a jury of eight members, except in circumstances of joinder the jury may be composed of twelve members.
It is difficult to perceive any prejudice to the defendants by having a jury consisting of twelve rather than eight. Indeed it would seem that the state afforded Thomas and Gainer a greater right than they were entitled to under the Ohio Rules of Criminal Procedure. All research indicates that the larger the jury size the greater likelihood the defendant will escape conviction. This is particularly true in a jurisdiction such as Ohio where a unanimous verdict is required for a conviction. Ballew v. Georgia (1978), 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234, cited a number of studies which suggest that a larger jury inures to the benefit of the defendant in a criminal case.
We hold that Thomas and Gainer were properly joined with Rieder for trial, that such joinder was nonprejudicial, and that a jury of twelve was permissible under the circumstances. We therefore reverse that portion of the judgment of the Court of Appeals which reversed the convictions of defendants Thomas and Gainer.
Cross-appellants, Thomas, Gainer and Rieder, collectively present seven propositions of law as hereinafter set forth. We address them seriatim.
In examining the affidavit for a search warrant in the cause sub judice *, we are guided by the interpretive rules that such affidavits are to be tested in a common sense manner, United States v. Ventresca (1965), 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684, and include not only the facts averred, but also all reasonable inferences which may be drawn from those facts. Id. at 106, 85 S.Ct. 741. In light of these guidelines, we conclude that the affidavit herein was sufficient to impart probable cause to believe that bookmaking implements would be found on the premises described in the affidavit.
The affidavit established that agents of the Bureau of Criminal Investigation (B.C.I.) had conducted a surveillance of 10 Third Street in Roseville. This surveillance, along with information supplied by the Columbus Police Department and the Federal Bureau of Investigation, established that a telephone on the subject premises was listed in the name of a non-existent oil and gas company, that none of the three suspects had any association with the oil and gas business, that all the suspects purportedly operating this fictitious business were known gamblers and had previously been arrested on gambling charges and that most of the "business" activity of the fictitious business took place during the daytime.
We believe the magistrate was entitled to infer that there was some kind of improper activity occurring at the Third Street address from the fact that the premises housed a fictitious business. Furthermore, listing a telephone under a fictitious name is a common modus operandi for a bookmaking operation. Finally, the suspicion...
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