State v. Thomas William Fulton
| Decision Date | 28 December 1989 |
| Docket Number | 89-LW-4441,CA-394 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Thomas William FULTON, Jr., Defendant-Appellant. |
| Court | United States Court of Appeals (Ohio) |
Criminal Appeal from the Court of Common Pleas Case No. 87-CR-08 9-951.
Richard Benson, Special Holmes County Prosecutor, Wooster, for plaintiff-appellee.
Richard B. Hauser, Willard, for defendant-appellant.
Before MILLIGAN, P.J., and HOFFMAN and GWIN, JJ.
A Holmes County Common Pleas Court jury found defendant guilty of aggravated robbery, two counts of kidnapping, theft of firearms, and grand theft, with specifications. Defendant appeals:
I.THE COURT ERRORED (SIC) IN REFUSING TO DISMISS THE INDICTMENT BECAUSE HOLMES COUNTY OFFICIALS ARE SYSTEMATICALLY EXCLUDING FROM JURY SERVICE THOSE PROSPECTIVE JURORS BELIEVED TO BE MEMBERS OF AMISH FAITH.
II.THE DEFENDANT WAS PREJUDICED FROM HAVING A FAIR TRIAL BECAUSE AMISH WERE SYSTEMATICALLY EXCUSED FROM PETIT JURY SERVICE ON AN EX PARTE BASIS BEFORE TRIAL.
III.THE COURT ERRORED (SIC) IN NOT ENFORCING THE PLEA BARGAIN MADE WITH OFFICER THOMAS LUDBAN AS WAS ORDERED BY THE TRIAL COURTS IN HURON AND SENECA COUNTIES IN COMPANION CASES.
IV.THE COURT SHOULD HAVE SUPPRESSED THE IDENTIFICATION OF THE DEFENDANT BY VICTIM OLIVIA ANN WYATT AS A MATTER OF LAW.
V.THE COURT COMMITTED REVERSIBLE ERROR BY NOT EXCLUDING JUROR FOREST CHENY FOR CAUSE.
VI.THE COURT ERRORED (SIC) IN NOT SUPPRESSING THE FIREARM SEIZED FROM INSIDE WIFE'S PURSE LOCATED IN DEFENDANT'S AUTOMOBILE.
VII.THE COURT ERRORED (SIC) BY NOT SUPPRESSING EVIDENCE OBTAINED AS A RESULT OF SEARCH OF DEFENDANT'S APARTMENT.
VIII.THE COURT ERRORED (SIC) IN OVERRULING DEFENDANT'S MOTION FOR NEW TRIAL ON GROUNDS OF JUROR MISCONDUCT.
IX.THE CASE SHOULD HAVE BEEN DISMISSED AS PER 2945.71 ET SEQ. BECAUSE THE DEFENDANT WAS NOT AFFORDED A SPEEDY TRIAL.
X.THE COURT ERRORED (SIC) BY NOT DISMISSING THE FIREARM SPECIFICATION ON GROUNDS OF LACK OF EVIDENCE CONCERNING ITS OPERABILITY.
XI.THE COURT ERRORED (SIC) BY NOT FINDING THE CRIMES OF AGGRAVATED ROBBERY AND KIDNAPPING TO BE "ALLIED OFFENSES OF SIMILAR IMPORT."
XII.THE COURT ERRORED (SIC) IN NOT HOLDING GRAND THEFT AND THEFT OF FIREARMS TO BE LESSER INCLUDED OFFENSES OF AGGRAVATED ROBBERY OR IN THE ALTERNATIVE AN ALLIED OFFENSE OF SIMILAR IMPORT.
XIII.THE TRIAL COURT ERRORED (SIC) BY CONSIDERING THE CRIME OF KIDNAPPING TO BE AN AGGRAVATED FIRST DEGREE FELONY INSTEAD OF AN AGGRAVATED SECOND DEGREE FELONY.
XIV.THE COURT ERRORED (SIC) IN SENTENCING BY EXCEEDING THE MAXIMUM MINIMUM PERMITTED BY LAW.
Defendant claims that Grand Jury selection in the case sub judice violates Ohio law and his rights to due process because members believed to be of the Old-Order Amish Faith were excluded from Grand Jury duty. Defendant does not claim to be a member of the class excluded from jury service.
Defendant was indicted on March 30, 1987, and arraigned on April 10, 1987.
On October 19, 1987, defendant made a "Motion to Dismiss Based on Objections to Grand Jury Array" claiming:
Now comes the Defendant by and through his attorney, Stephen D. Knowling, and pursuant to Ohio Criminal Rule 6(B)(2), moves this Court to dismiss the Indictment in the above captioned matter based upon the following objections to the Grand Jury Array:
1.Names were selected from a jury wheel from which members of the Amish faith were systematically excluded in violation of Ohio Revised Code Sections 2313.12, 2313.16 and 2939.03.
2.Jurors after being selected from a jury wheel were improperly excused by the Court and/or the jury commissioners in that no record was kept and filed with the jury commissioners of the persons so excused and the reasons as required by Ohio Revised Code Sections 2313.12, 2313.16, and 2939.03.
3.The above stated statutory violations also violate the Defendant's rights under the Sixth and Fourteenth Amendments to the United States Constitution in that they deny him a "fair cross section of the community" for his trial by jury.®1¯
With the above motion, the defendant filed a memorandum, and a supplemental memorandum. Three evidentiary hearings were held. The court heard testimony of two jury commissioners serving at the time of the drawing of the Grand Jury venire, the Clerk of Courts, and the Sheriff of Holmes County. An affidavit by the court was also submitted concerning the procedures commonly followed in the drawing and selection of prospective jurors to form a grand or petit jury venire.
Defendant submitted testimony of a member from the Holmes County Planning Commission concerning the percentage of Holmes County residence who were of the Old-Order Amish Religious Faith and testimony of a Bishop of the Old-Order Amish Religious Faith who presented a statement from the National Steering Committee.
From the testimony so taken various factual conclusions were made by the Court as follows. There has been a concerted effort made by all the parties to systematically exclude from jury service both, grand and petit, persons who were recognized to be members in good standing of the old order Amish religious faith. Jury Commissioner Elliott testified that it has been his practice over a number of years to take the list of registered voters and the key number as obtained from the court and to ascertain from the persons who are well acquainted with the various townships and communities containing members of the Old-Order Amish Religious Faith as to whether or not certain individuals belong to that group and, if so, he would at that point in time, exclude them from his list of prospective jurors
Mr. Morganti of the Planning Commission testified to the fact that it has been estimated through studies made by his Commission and otherwise that thirty-five (35%) percent of the population of Holmes County consists of members of the Old-Order Amish Religious Faith, this being based upon an estimated percentage from thirty-three (33%) percent to forty (40%) percent of the total population.
The testimony of the Bishop Henry E. Mast and Ben J. Raber both confirm that it was contrary to the beliefs and tenets of the Old-Order Amish Religious Faith for any member to serve as a member of a grand or petit jury, and although this was an individual determination of each Bishop within his respective church district, this has been a general belief in holding within the Old-Order Amish Religious Faith to the extent of his memory and recollection. And Mr. Mast also testified that in the event a church member would so serve he or she would be subject to church punishment or chastisement for having violated the tenets of the Amish belief in that regard.
Judgment Entry, April 13, 1988.
Because of the steadfast beliefs of the Amish faith in "Judge not, that ye not be judged," Matthew 7, New Testament, Verse 1, along with other "Biblical admonitions which govern the old-order Amish Religious Faith in their relationship with the governmental system and also in their effort to preserve a lifestyle," the trial court found "it would be an exercise in futility to require a member of the Amish faith to appear for jury duty when it is commonly known that such a person would object to being seated and would not consent to perform the functions of a juror as required by law if he or she was so seated." Judgment Entry, April 13, 1988. The trial court overruled the defendant's motion.
"R.C. 2313.12 authorizes commissioners of juries to exempt those who are statutorily entitled to exemption." State v. Puente (1982), 69 Ohio St.2d 136, 431 N.E.2d 987. A commissioner may do so only upon a request of the person so entitled. Id. Further, "said commissioners shall keep a record of all proceedings before them or in their office, and all persons exempted and the time and reasons for such exemptions." R.C. 2313.12. Here, the commissioners exempted prospective jurors from the jury wheel by setting aside the names of those persons drawn from the wheel who were members of the Old-Order Amish Religious Faith. Exclusion was the result of personal knowledge of the clerk, sheriff, or others present.
The commissioners failed to keep a record of all proceedings before them. See R.C. 2313.12.
Failure to follow R.C. 2313.01 et seq. does not ipso facto equate with denying defendant a fair trial. If the jurors impaneled possess the requisite qualification to act as jurors, irregularities in their selection and drawing are not prejudicial. State v. Puente, supra, (jury commissioners failed to follow statutory requirements by automatically exempting doctors, dentists, lawyers and others entitled to statutory exemptions, rather than placing such exempted persons' names in the jury wheel); In Re: Appropriation (1963), 120 Ohio App. 273, 201 N.E.2d 889; R.C. 2313.41.
This record is devoid of evidence that leads us to conclude that defendant was prejudiced by the jury commissioners' failure to follow the requirements of R.C. 2313.01 et seq. Further, we find no evidence that the jurors who indicted and convicted defendant were not qualified. See State v. Puente, supra.
Because defendant is not a member of the Amish faith, we find he lacks standing to challenge the Grand Jury array. Ford v. Seabold (6th Cir.1988), 841 F.2d 677, cert. denied, 109 S.Ct. 3156; Aldridge v. Marshall (6th Cir.1985), 717 F.2d 63, cert. denied, 106 S.Ct. 810.
[C]ases challenging the makeup of state grand juries are analyzed under the equal protection clause of the Fourteenth Amendment, [citations omitted] while the right to a representative...
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