State v. Wilson

• Decision Date: 15 March 1972
• Docket Number: No. 71-503,71-503
• Citation: 58 O.O.2d 409,280 N.E.2d 915,29 Ohio St.2d 203
• Parties: , 58 O.O.2d 409 The STATE of Ohio, Appellee, v. WILSON, Appellant.
• Court: Ohio Supreme Court

Page 203

29 Ohio St.2d 203

280 N.E.2d 915, 58 O.O.2d 409

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

No. 71-503.

Supreme Court of Ohio.

March 15, 1972.

Syllabus by the Court

1. Upon examination of a prospective juror to determine whether he should be disqualified from a capital case because of his opposition to capital punishment, the court may properly excuse a prospective juror where it appears from his testimony that he could not exercise his own independent judgment in the case but would instead defer to the judgment of his fellow jurors. (State v. Watson, 28 Ohio St.2d 15, 275 N.E.2d 153, and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, discussed and distinguished.)

2. Questions involving the safe custody and control of exhibits, once admitted into evidence, fall within the sound discretion of the trial court, and that court does not abuse its discretion by permitting exhibits to be withdrawn for use in a second courtroom in which another defendant is simultaneously on trial for his alleged part in a related criminal act, where the security of the exhibits is insured by the use of photographs depicting them and where the actual exhibits, only, and not the identifying photographs, are used in presenting the case to the jury and are taken by the jury into its deliberations.

Appellant was indicted by the grand jury of Himilton County for the crime of murder in the first degree. Upon trial, the jury returned a verdict of guilty as charged, without recommending mercy. A motion for a new trial was overruled. The Court of Appeals affirmed the judgment of the Court of Common Pleas, and the cause is not before this court upon an appeal as of right. Section 2(B)(2)(a)(ii), Article IV, Constitution; R.C. §§ 2953.02 and 2953.05.

It appears that the decedent died from three bullet wounds in the head, inflicted during a robbery on November 28, 1969, of an establishment owned by him, known as Ernie's Pony Keg and located in the city of Cincinnati. Appellant was identified by his clothing as one of two men seen in the vicinity of Ernie's Pony Keg just before the shooting. Eyewitnesses testified that they saw two men in the deceased's office, fighting or struggling with the deceased at the time the shots were heard. The witnesses testified further that the appellant was one of two men they saw flee on foot just after they heard the shots. Money was found scattered around the office. A trail of blood led from the office, through a parking lot, and into the street.

Early the following morning, appellant's brother was admitted to Mercy Hospital in Hamilton, Ohio, suffering from a bullet wound in his hand. The bullet which was removed ballistically matched slugs removed from the head of the deceased. Money found on appellant's brother was identified as having been taken from the deceased. Blood found on the front right (passenger side) seat of appellant's car matched his brother's blood type. Called as a witness by the defense, appellant's brother admitted that he was on the premises at or about the time the deceased was killed. He contended that his brother was not with him, and claimed that he was involved only as an innocent bystander. But his story was inconsistent with testimony given by other witnesses, including two witnesses called by the defense-in particular, the defendant's wife-and it was laced with vague and evasive answers.

On the morning following the shooting, appellant's landlord stopped by the appellant's apartment to collect rent and found the appellant sitting with a large pile of money stacked in front of him. Appellant was apprehended in San Francisco, California, and returned to Ohio to stand trial. Choosing to testify in his own behalf, appellant denied or attempted to explain the evidence amassed against him. Evidently, the jury attached no more credibility to his testimony than they attached to that of his brother.

Such additional facts as are necessary to a full discussion of the case are included in the opinion.

Simon Leis, Jr., Pros. Atty., and Robert K. Sachs, Cincinnati, for appellee.

Richard D. Haney, and Arnold S. Levine, Cincinnati, for appellant.

SILBERT, Justice.

In substance, the appellant assigned six errors for consideration by the Court of Appeals, which he renews as propositions of law in his argument here:

1. 'Where the state * * * in a criminal case has in its possession certain evidence which * * * has not been made available to the defendant it is * * * (error) to overrule a motion for a bill of particulars * * * (seeking to obtain) a detailed statement of the particular acts, conduct, methods, manner or means by which the state claims the defendant committed the alleged act (,) and it is further error * * * to overrule a motion for discovery and inspection * * * (seeking to permit) the defendant or his counsel * * * to inspect, copy and * * * subject to scientific analysis certain evidence in the hands of the prosecution.'

2. 'It is the duty of the State of Ohio (and error not) to provide separate trials in a first degree murder case, one trial to be determinative of the guilt * * * or innocence of the defendant and the second hearing or trial to determine the degree of guilt * * * or * * * (whether mercy should be extended) to a defendant.'

3. 'Where a prospective juror indicates a general opposition to 'capital punishment' although indicating that she could vote for the death penalty in a proper case, it is error for the court to exclude said juror for cause * * * in a capital case.'

4. 'Where two or more persons are being tried * * * at the same time (for their respective roles in the same criminal act) it is * * * (error) to permit the prosecutor or the counsel for the defense to transfer exhibits from one cause to the other without properly seeing to the security of the exhibits.'

5. 'Where two (defendants) are being tried in separate court rooms for (the) commission of the same crime, it is error for the court * * * to permit the introduction of evidence relating solely to the * * * (defendant) on trial in * * * (the other) court room.'

6. 'Where the evidence given * * * contains discrepancies in the testimony * * * and where the testimony is not of such probative value as required to sustain a verdict of guilty of murder in the first degree without recommendation of mercy (,) it is error * * * not to grant a motion for a new trial timely filed.'

The first and second issues raised require only brief comment. The nature of the first of these is indicated by the following excerpt from appellant's brief:

'It is submitted that the overruling of * * * (these) Motions was prejudicial error * * * since * * * (this) prevented Appellant from receiving due process of law * * *. It is possible that there might have been evidence acquired at the scene by the prosecutor which might have conclusively shown or could have led to other facts which might conclusively have shown that the Appellant was not involved in the murder of the decedent.' (Emphasis added.)

Appellant admits that the trial court did not overrule his motion in its entirety. The court did grant that part of the motion requiring the state to specify the nature of the offense charged, but the court refused to grant that part of the motion for a bill of particulars and the whole of the so-called Motion for Discovery and Inspection, as they amounted to a 'fishing expedition' intended to force the state to disclose its evidence. Such is not a proper function of a bill of particulars, and if the scope of discovery permitted in criminal cases is limited and properly within the sound discretion of the trial court, this raises no problem of constitutional dimensions. R.C. § 2941.07. Cf. State v. DeRighter (1945), 145 Ohio St. 552, 556, 62 N.E.2d 332; State v. Petro (1947), 148 Ohio St. 473, 76 N.E.2d 355; State v. Hill (1967), 12 Ohio St.2d 88, 90, 232 N.E.2d 394; State v. Laskey (1970), 21 Ohio St.2d 187, 192, 257 N.E.2d 65.

Likewise, the second issue, the question of the need for the so-called bifurcated trial was considered by the United States Supreme Court's decision in McGautha v. California (1971), 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711, which upheld this court's decision in State v. Crampton (1969), 18 Ohio St.2d 182, 248 N.E.2d 614. As appellant admits, the issue is completely disposed of by those cases.

Turning to the third issue raised, this court has recently held that a venireman may not be excused for cause in a capital case simply because he has voiced general objections to the death penalty or has expressed conscientious or religious scruples against its infliction. 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. Applying the decisions of the United States Supreme Court in Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; Boulden v. Holman (1969), 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 443, and Maxwell v. Bishop (1970), 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221, in light of State v. Pruett (1969), 18 Ohio St.2d 167, 248 N.E.2d 605, reversed, 403 U.S. 946, 91 S.Ct. 2284, 29 L.Ed.2d 857; and State v. Wigglesworth (1969), 18 Ohio St.2d 171, 248 N.E.2d 607, reversed, 403 U.S. 947, 91 S.Ct. 2284, 29 L.Ed.2d 857, the court indicated that:

'Upon examination of a prospective juror * * * the most that can be demanded * * * is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed * * * to vote against the penalty of death regardless of the facts and circumstances which might emerge * * *.' (Emphasis added.) State v. Watson, supra, paragraph four of the syllabus.

That language was not meant to imply that qualms about capital punishment are a passkey to the jury box. The essential holding of the Witherspoon, Boulden and Maxwell decisions prohibits carrying out a...