State v. Wilson

• Decision Date: 31 May 1972
• Docket Number: No. 71-786,71-786
• Citation: 30 Ohio St.2d 199,283 N.E.2d 632,59 O.O.2d 220
• Parties: , 59 O.O.2d 220 The STATE of Ohio, Appellee, v. WILSON, Appellant.
• Court: Ohio Supreme Court

Page 199

30 Ohio St.2d 199

283 N.E.2d 632, 59 O.O.2d 220

The STATE of Ohio, Appellee, v. WILSON, Appellant.

No. 71-786.

Supreme Court of Ohio.

May 31, 1972.

Syllabus by the Court

After a venireman has unambiguously stated, on jury voir dire, that he could not vote for the death penalty under any circumstances, a Witherspoon violation cannot be predicated merely upon his ambiguous response to a question of defendant's counsel as to whether there is 'anything about the nature of this case that would keep you from listening on the question of the death penalty.'

Appeal from the Court of Appeals for Hamilton County pursuant to the affirmance of the death penalty.

Appellant was convicted of murder in the first degree by a jury which withheld a recommendation of mercy. The Court of Appeals affirmed.

The state's evidence showed that appellant and hs brother, who was charged in the same indictment (see State v. Wilson (1972), 29 Ohio St.2d 203, 280 N.E.2d 915), entered a pony keg in Cincinnati in the early evening, robbed the proprietor, struck him, and shot him three times in the head with a .38 caliber revolver.

Two witnesses testified to hearing four shots and identified appellant as the man seen struggling with decedent and running from the scene of the crime.

During the robbery appellant was shot in the right hand with a .38 caliber revolver and entered Mercy Hospital in Hamilton the following morning to have the bullet removed, although he lived in Cincinnati. Police were notified and appellant was arrested.

At the hospital three two-dollar bills and some other cash were found under appellant's pillow by a nurse. Decedent's wife identified one of the bills and testified that her late husband collected and always carried them in his wallet.

There was testimony that the bullets taken from appellant and decedent were .38 caliber slugs fired from the same weapon used during the robbery; that blood stains found at the scene of the crime matched appellant's blood type; and that blood found on appellant's clothing matched decedent's blood type.

Appellant took the stand and admitted that he had been at the pony keg on the night in question, that he saw a robbery taking place, started to run, was shot in the hand, visited some friends and then went to the hospital to have the bullet removed. He denied having robbed and killed the decedent.

Simon L. Leis, Jr., Pros. Atty., and John D. Valentine, Cincinnati, for appellee.

Donald L. Weber and Robert H. Davis, Cincinnati, for appellant.

SCHNEIDER, Justice.

Appellant first contends that he was denied due process of law when the trial court overruled his motion to have the blood stains found on his clothing and the bullets taken from him and the decedent examined by an expert selected by him.

Prior to trial appellant filed a nine-part discovery motion pursuant to which the trial court allowed him to inspect his clothing, the bullet taken from his hand, the bullets and weapons taken from and around the pony keg, and the results of all ballistic, fingerprint and paraffin tests made on behalf of the state.

Appellant did not request the right to subjecdt to scientific analysis blood stains found on his clothing. Therefore, appellant's claimed error in this respect is without merit.

The trial court permitted appellant to inspect the results of the state's ballistic tests. The photomicrographs of the bullet removed from appellant's hand and the bullet removed from the decedent were made available to him. Sufficient information was given to appellant which could have been transmitted to an expert of his own choosing. He presented no such ballistics expert, nor did he request that one be provided him.

Considering counsel's comprehensive cross-examination of the state's expert witnesses and his failure to show how appellant was prejudiced in light of the evidence which was made available to him, we can find no clear abuse of that sound discretion which rests in the trial court in determining a defense motion for discovery. State v. Laskey (1970), 21 Ohio St.2d 187, 257 N.E.2d 65, and State v. Kassow (1971), 28 Ohio St.2d 141, 277 N.E.2d 435.

As to the composition of the jury, appellant contends that: (A) one venireman was improperly excused for cause contrary to Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; (B) two veniremen should have been excluded under R.C. § 2945.25 after they testified that because of the indictment against the accused he was 'probably guilty'; and (C) that a trial by a jury consisting entirely of persons of the Caucasian race is not a trial by a peer group from appellant's own religious, racial, environmental and social background, and therefore, violative of the Fourteenth Amendment of the United States Constitution.

(A) In State v. Watson (1971), 28 Ohio St.2d 15, 275 N.E.2d 153, approved and followed in State v. Patterson (1971), 28 Ohio St.2d 181, 277 N.E.2d 201, we held:

'In selecting the members of a jury, unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it cannot be assumed that this is his position.'

On examination by both the state and the defense venireman Carlton unambiguously stated that she could not vote for the death penalty. Even on further examination by the defense she reiterated that position:

'Q. After that consideration, I think you indicated to me that there would be a circumstance in which you would vote for the death penalty?

'A. No, sir I don't think so.

'Q. That could not happen even after you listened to the particular case?

'A. No, sir.'

Thereupon, appellant's counsel asked her the following question: 'Is there anything about the nature of this case that would keep you from listening on the question of the death penalty?' Her answer was: 'I could listen.'

That logical reply was in response to a question not designed to elicit an 'unambiguous response,' called for by Witherspoon, but falling outside the 'sufficient latitude' granted counsel during the voir dire examination of prospective jurors in a capital case. State v. Anderson (1972), 30 Ohio St.2d 66, 282 N.E.2d 568.

Although the venireman indicated that she might be able to listen on the death penalty question, her prior unambiguous responses showed that she was irrevocably committed before the trial began to vote against the death penalty regardless of the facts and circumstances that might emerge in the course of the proceedings.

Thus, there was no error in the trial court's sustaining of the state's challenge for cause.

(B) The record shows that although two prospective jurors indicated doubt as to the innocence of appellant in view of the indictment returned against him, each demonstrated that they could act fairly and impartially. See State v. Elliott (1971), 25 Ohio St.2d 249, 267 N.E.2d 806.

(C) Swain v. Alabama (1965), 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, holds that a proportionate number of an accused's race is not constitutionally required so long as the jury selection...