Opinion
No. 69-513
Decided April 29, 1970.
Criminal procedure — First degree murder — Voir dire examination of prospective jurors — Challenge for cause — Juror's contradictory answers to questions — Preconceived opinion — Evidence — Premeditated malice — Conflicting testimony.
APPEAL from the Court of Appeals for Hamilton County.
Defendant, Ellis Vails, here appeals his conviction and sentence to death on two counts of first degree murder, without a recommendation of mercy. On July 6, 1968, defendant went to the apartment of one Beatrice Thomas. While the fact is disputed, there is competent evidence that defendant took a shotgun and shells to the Thomas apartment. Upon arriving at the apartment, he found James Garner who began wrestling with defendant over the gun. During the scuffle the gun went off, killing Beatrice Thomas. There is evidence also showing that defendant used the butt of the same gun to inflict injuries which caused the death of Maria Simpson, mother of Beatrice Thomas.
The defendant was a former boyfriend of Beatrice Thomas. The record contains testimony tending to prove that defendant had made threats to kill Beatrice Thomas and her mother, as well as denials and testimony to the contrary.
Defendant maintains that he was deprived of his right to a fair trial when Milton Thomas, a prospective juror, was excused for cause because he said he would probably recommend mercy. The state contends that the prospective juror was properly excused under R.C. 2945.25(B), because the voir dire questioning showed he had a predetermined opinion of guilt.
Defendant also challenges the admission of some rebuttal testimony as constituting new matter. In rebuttal, the state produced the testimony of one Lee Smith, who stated he owned the gun used in the killings, and that he kept the gun at his house. He testified that Vails had access to the gun, the gun having been in his house when he went to bed that night before the incident.
Defendant denied ever being in Smith's apartment or knowing the weapon was owned by Lee Smith.
Further, defendant asks this court to reverse the Court of Appeals affirmance of the conviction and to modify the judgment to a lesser included offense because the evidence was insufficient to show premeditated and deliberate malice.
Mr. Melvin G. Rueger, prosecuting attorney, Mr. Calvin W. Prem and Mr. Donald Guy Montfort, for appellee.
Mr. Donald Weber and Mr. Bernard J. Gilday, Jr., for appellant.
The initial question in this appeal regards the excusing of Milton Thomas as a prospective juror. While defendant contends that Thomas was excused because he was somewhat opposed to capital punishment and would probably recommend mercy, the record fails to support defendant's argument. The record shows intensive questioning of Thomas by the state, defense counsel, and the court. The questioning shows diametrically opposite answers by Thomas depending upon which person was asking the questions.
Defendant properly objected to the state's challenge for cause under R.C. 2945.25(C), which excuses a juror when "his opinions preclude him from finding the accused guilty of an offense punishable with death." See State v. Duling, 21 Ohio St.2d 13. The court finally overruled the state's challenge for cause under R.C. 2945.25(C).
The trial judge did excuse Thomas for cause under R.C. 2945.25(B), because he was not satisfied that Thomas could render an impartial verdict on the evidence on account of the prospective juror's contradictory answers to questions concerning preconceived opinions. R.C. 2945.25(C) requires that where a juror has a preconceived opinion the court must be satisfied that the juror could render an impartial verdict on the evidence or else the court may excuse the juror for cause. See, also, Cooper v. State, 16 Ohio St. 328, paragraph one of the syllabus. The trial judge exercised his sound legal discretion and did not commit reversible error. See Palmer v. State, 42 Ohio St. 596. Since the exclusion of Thomas was proper under R.C. 2945.25(B), supra, the cases emanating from Witherspoon v. Illinois, 20 L. Ed. 2d 776, are inapplicable.
The following sample of questions and answers shows a basis for the trial court's position concerning the preconceived opinions of the prospective juror, Milton Thomas:
By the Court:
"The Court: As I understand it now, Mr. Thomas, and I don't want you to tell me what your idea is, but you already have some idea about whether he is guilty or not guilty?
"Mr. Thomas: Well, I got an idea he's guilty then if he murdered somebody, killed some one.
"The Court: I don't want you to tell me what your idea is but as you sit there now you have already formed some idea about the case?
"Mr. Thomas: Yes."
By the prosecution:
"Q. Mr. Thomas, what I'm asking you is, this idea that you have about this man's guilt or innocence is this an idea that you would not be able to set out of your mind?
"A. Yes, sir."
By the defense counsel:
"Q. As a matter of fact, sir, you really don't have any opinion at all about the guilty [sic] or innocence of Vails because you haven't heard any of the testimony, right? You don't know anything about the case, isn't that accurate?
"A. Yes."
The record fails to show any abuse of discretion in admitting rebuttal testimony. Rather it shows that the questioned testimony rebutted earlier testimony of the defendant. Since we do not find the required patent abuse of discretion in admitting this testimony, the defendant's objection is not well taken. See Cities Service Oil Co. v. Burkett, 176 Ohio St. 449.
Evidence was presented which tended to show premeditated and deliberate malice on the part of the defendant. There was also evidence to the contrary. The conflicting testimony was sufficient evidence to both warrant submission of the issue to the jury and to support the verdict entered by the jury. Therefore, the trial court did not err in allowing the jury to decide whether the defendant acted with deliberate and premeditated malice. See State v. Stewart, 176 Ohio St. 156, 160.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN and CORRIGAN, JJ., concur.
CHIEF JUSTICE TAFT participated in this case which was, however, decided after his death.
MATTHIAS, J., not participating.