Opinion
No. 41163
Decided June 11, 1969.
Criminal procedure — Selection of jurors — Challenge for cause in capital case — Prospective jurors opposed to death penalty.
A state statute may authorize challenge of a prospective juror for cause in a capital case where "his opinions preclude him from finding the accused guilty of an offense punishable with death." ( Witherspoon v. Illinois, 391 U.S. 510, followed; Section 2945.25, Revised Code, applied.)
APPEAL from the Court of Appeals for Ashtabula County.
ON REMAND from the United States Supreme Court.
Defendant was indicted for first degree murder, was found guilty by the verdict of a jury which did not recommend mercy, and was sentenced to death.
The statute with respect to first degree murder provides as far as pertinent [Section 2901.01, Revised Code]:
"Whoever violates this section is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommends mercy, in which case the punishment shall be imprisonment for life."
The judgment of conviction was affirmed by the Court of Appeals. This court denied an application for leave to appeal, and dismissed a claimed appeal as of right for the reason that it involved no substantial constitutional question.
The Supreme Court of the United States granted a petition for certiorari and remanded the cause to this court for reconsideration in the light of Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed. 2d 776, 88 S.Ct. 1770.
Since no question had previously been raised in this court in this case with respect to the exclusion of prospective jurors by reason of their opposition to capital punishment, this court had that question briefed and argued by the parties.
A failure to raise any question about a constitutional right in the courts of this state was held not to preclude a subsequent reliance by a defendant upon that right before the Supreme Court of the United States, after that right had been first established by a decision of the Supreme Court of the United States rendered subsequent to final determinations by the courts of this state, and where the written law of this state had previously negatived the existence of any such right. O'Connor v. Ohio (1966), 385 U.S. 92, 17 L.Ed. 2d 189, 87 S.Ct. 252, reversing State v. O'Connor (1966), 6 Ohio St.2d 169, 217 N.E.2d 685. However, in the instant case, it was the statutory law of Ohio for almost 100 years before the decision in Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed. 2d 776, 88 S.Ct. 1770, that a prospective juror could not be challenged for his opinions as to capital punishment unless they would "preclude him from finding the accused guilty of an offense punishable with death." Section 2945.25(C), Revised Code. Hence, since the defendant did not raise any question in the Ohio courts about the right so established by Witherspoon, and since that right had long existed under Ohio statutes, we believe that the defendant's failure to so raise that question should preclude him from raising it now. See Schmerber v. California (1966), 384 U.S. 757, 765, 16 L.Ed. 2d, 908, 86 S.Ct. 1826, footnote 9.
Mr. Robert D. Webb, prosecuting attorney, and Mr. Walter E. Thayer, for appellee.
Messrs. Nazor Nazor and Mr. Gordon L. Nazor, for appellant.
In the opinion by Mr. Justice Stewart in Witherspoon v. Illinois, supra ( 391 U.S. 510), it is stated that that case did not "involve the state's assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them."
That opinion further states:
"If the state had exluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply `neutral' with respect to penalty."
Also, it is stated in footnote 21 to that opinion:
"We repeat, however, that nothing we say today bears upon the power of a state to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them * * *."
Unlike the Illinois statute, our statute does not authorize a challenge for cause of anyone merely because he says he "has conscientious scruples against capital punishment, or that he is opposed to the same." Our statute has, since at least 1869 (66 Ohio Laws 287, 307), apparently agreed with the conclusion stated in the opinion in Witherspoon, and thus has authorized challenging a juror for cause only where such a juror had opinions which precluded him from voting for a verdict that would result in the death penalty.
Thus, Section 2945.25, Revised Code, reads, so far as pertinent:
"A person called as a juror on an indictment may be challenged for the following causes:
"* * *
"(B) That he has formed or expressed an opinion as to the guilt or innocence of the accused; but if the juror has formed or expressed such an opinion, the court shall examine such juror on oath, as to the grounds thereof, and if such juror says that he can render an impartial verdict notwithstanding such opinion, and the court is satisfied that such juror will render an impartial verdict on the evidence, the court may admit him as competent to serve as a juror in such cause;
"(C) In the trial of a capital offense, that his opinions preclude him from finding the accused guilty of an offense punishable with death."
In our opinion, Witherspoon and Boulden v. Holman (1969), ___ U.S. ___ , 22 L. Ed. 2d 433, recognize that a state statute may authorize challenge of a prospective juror for cause in a capital case where his opinions preclude him from finding the accused guilty of an offense punishable with death.
We recognize that, even if such a statute is followed, the record in a case might indicate selection of a jury composed only of those not opposed to the death penalty. There is no contention that the record in the instant case does indicate selection of such a jury.
The record does indicate that, of 43 jurors examined at length, 17 were excused pursuant to a challenge for cause as authorized by Section 2945.25(C), Revised Code.
The accused makes no complaint with respect to 14 of those so excused, apparently conceding, as the record discloses, that in each instance the prospective juror's opinions precluded him from bringing in a verdict of guilty without a recommendation of mercy.
The accused now complains only with respect to the sustaining of three challenges for cause. The most that can be said on behalf of the accused with respect to any one of these three prospective jurors is that some of the answers were evasive. We have examined the record made with respect to each of these three and are of the opinion that the court was justified in finding in each instance that the prospective juror's opinions precluded him from finding the accused guilty of an offense punishable with death. It is apparent from questions asked by the trial court that it was very much aware of the limitations on its authority set forth in the statute (Section 2945.25[C], quoted above) and conscientiously tried to and did stay well within those limitations.
We believe, therefore, that the trial court was fully justified in finding that each of the challenged prospective jurors would not under any circumstances ever vote for a death penalty verdict and, therefore, was also justified in sustaining the challenge for cause with respect to each of those three prospective jurors.
Unlike in Witherspoon, there is absolutely nothing in the instant case to indicate any effort either by state legislation or by court action to exclude prospective jurors from the jury simply because of their opposition to the death penalty.
For the foregoing reasons, we affirm the judgment of the Court of Appeals.
Judgment affirmed.
MATTHIAS, O'NEILL, SCHNEIDER, LEACH and DUNCAN, JJ., concur.
This decision was made after the death of JUSTICE ZIMMERMAN and before the appointment of a successor.
LEACH, J., of the Tenth Appellate District, sitting for HERBERT, J.