State v. Allen

Wright, J.,

dissenting. The bedrock of our criminal justice system is the constitutional right tó a trial by jury. At the heart of this basic grant and due *645 process of law is the constitutional guaranty that the jurors who decide a defendant’s fate will be fair, impartial and free from bias or prejudice. Morgan v. Illinois (1992), 504 U.S. 719, 727 , 112 S.Ct. 2222, 2228 , 119 L.Ed.2d 492, 501 ; Ross v. Oklahoma (1988), 487 U.S. 81, 85 , 108 S.Ct. 2273, 2277 , 101 L.Ed.2d 80, 88 ; Wainwright v. Witt (1985), 469 U.S. 412, 418 , 105 S.Ct. 844, 849 , 83 L.Ed.2d 841, 845 ; Turner v. Louisiana (1965), 379 U.S. 466, 471-472 , 85 S.Ct. 546, 549 , 13 L.Ed.2d 424, 431 ; and Irvin v. Dowd (1961), 366 U.S. 717, 722 , 81 S.Ct. 1639, 1642 , 6 L.Ed.2d 751, 755 .

A prospective juror should be removed for cause when he “discloses by his answers that he cannot be a fair and impartial juror or will not follow the law as given to him by the court.” R.C. 2313.42(J). Additionally, a prospective juror should be excused “if the court has any doubt as to the juror’s being entirely unbiased.” (Emphasis added.) R.C. 2313.43. In the present case, the trial court deprived the defendant of important constitutional and statutory rights when it failed to remove for cause a juror who clearly demonstrated that she could not be impartial.

Before this trial began, the trial judge asked all of the prospective jurors en masse to advise the bailiff if they had any personal problems with serving as a juror. Ms. Worthington, one of the prospective jurors, approached the bailiff, indicating that she had some problems with serving as a juror. She was then brought before the judge. She advised the court that she was previously unaware that she had been called to serve in a criminal case and that she did not feel that she could serve as a juror in such a case because only a few years earlier her brother had been shot and killed. The trial court did not take any action, stating that her ability to serve as a juror, in light of her experiences, would be addressed during the general voir dire. 5

When Ms. Worthington was finally called as a juror, she was the twelfth juror to be seated on the panel. At that point, the defendant had exhausted all six of his peremptory challenges. Ms. Worthington was questioned in open court in the presence of the balance of the seated jurors. During questioning, she again related the facts surrounding her brother’s murder and the fact that she had sat through every day of that trial. She indicated without equivocation that she did not feel that justice was done in that case because the accused had been found not guilty. She stated without equivocation that she harbored feelings of bitterness and resentment as a result of the outcome of that trial. She further indicated that she was friendly with a number of police officers and the detectives and the prosecutor who were involved with her brother’s case. The detective in her *646 brother’s case apparently was still in contact with her mother. Ms. Worthington also stated that she did not know if she could hold back her emotions when the coroner testified as she believed, apparently as a result of listening to earlier questioning, that the facts in this case were very similar to those in her brother’s case. She then stated that the recent trial involving her brother’s murder could be a problem if she served as a juror in the present case.

Counsel for appellant asked that this juror be excused for cause, citing, among other reasons, her familiarity with potential state witnesses, her bitterness arising from the not guilty finding in her brother’s murder case, and her emotional involvement as a result of her brother’s case. As a result, counsel argued that she did not have the “detachment from these proceedings that ought to be required, particularly in a capital case.” Defense counsel, of course, also pointed out there were many other jurors available for seating in the event that the trial court sustained their challenge for cause. The trial court overruled the challenge, stating that “[t]he juror, when questioned, unequivocally stated that she could be fair and impartial. * * * I don’t see a problem with her serving.”

I do not see how any fair-minded individual can suggest that Ms. Worthington did not indicate a state of mind and view that cast the most serious sort of question on her ability to render an impartial verdict. In Palmer v. State (1885), 42 Ohio St. 596 , paragraph three of the syllabus, this court stated: “A person called as a juror in a criminal case, who clearly shows himself, on his voir dire, not to be impartial between the parties, is not rendered competent by saying that he believes himself able to render an impartial verdict, notwithstanding his opinions, although the court may be satisfied that he would render an impartial verdict on the evidence.” While it is true that the state made every effort to extract a statement to the effect that this juror believed herself capable of rendering an impartial verdict, I cannot think of a situation similar to this where this court or any other court has indicated that a juror with experience and perspective similar to Ms. Worthington should not have been excused for cause.

It is interesting to note that when questioned about this matter during oral argument to this court, the assistant prosecutor arguing this case indicated that Ms. Worthington was the type of juror he “wanted” on the jury. I must respectfully disagree. The state has an obligation to vigorously prosecute crime. However, the state also has a duty to uphold the law and protect the constitutional rights of those who are tried for crimes.

The state argues that our decision in State v. Broom (1988), 40 Ohio St.3d 277 , 533 N.E.2d 682 , upholds the posture taken by the trial judge. In Broom , we held that the relevant inquiry with respect to the impartiality of the jury is focused on the jurors who eventually sat and decided the case, not those jurors who were excused pursuant to peremptory challenges. Id. at 287-288 , 533 N.E.2d at 695 . *647 Consequently, we stated: “[I]n order to state a constitutional violation in this situation, the defendant must use all his peremptory challenges and demonstrate that one of the jurors seated was not impartial.” Id. at 288 , 533 N.E.2d at 695 . In Broom , the defendant’s impartiality challenge was unsuccessful because he had exercised a peremptory challenge to remove the juror who he alleged was biased.

Consistent with our holding in Broom , if a biased juror has sat on a jury that ultimately sentenced a defendant who had preserved his right to challenge the trial court’s failure to remove the juror for cause, the defendant’s sentence must be overturned. Accord Ross v. Oklahoma, supra, 487 U.S. at 85 , 108 S.Ct. at 2277 , 101 L.Ed.2d at 88 . That is exactly what occurred in this case. The appellant had exhausted all of his peremptory challenges by the time Ms. Worthington was seated on the panel. He challenged her for cause, but because the trial court failed to remove her, she was a member of the panel that found defendant guilty and sentenced him to death.

I do not relish taking a position that would require a retrial of this particular matter. However, better to retry this matter now than two or three years hence as a result of a successful action in habeas corpus. Furthermore,0 this is a purely circumstantial case. There are serious questions concerning the admissibility of certain evidence with respect to the defendant’s background and character and whether or not the defendant, if he did commit this crime, did so in the course of an armed robbery.

Accordingly, for the foregoing reasons, I would reverse the decision of the court of appeals and remand this matter for a new trial.

Moyer, C.J., and Pfeifer, J., concur in the foregoing dissenting opinion.

APPENDIX

“Proposition of Law No. I

“A prospective juror should be removed for cause when she discloses by her answer that she cannot be a fair and impartial juror or if the court has any doubt as to the juror’s being entirely unbiased.

“Proposition Law No. II

“Defense counsel should be permitted to question prospective jurors concerning their views on capital punishment and the trial court should not excuse a juror for cause based on views concerning capital punishment until such questioning is allowed and unless those views would prevent or substantially impair the performance of their duties.

*648 “Proposition of Law No. Ill

“The existence of a prior offense is such an inflammatory fact that it should not be revealed to the jury unless specifically permitted under statute or rule.

“Proposition of Law No. IV

“A conviction cannot stand when the state failed to present sufficient evidence to meet the legal requirements to sustain a conviction.

“Proposition of Law No. V

“Evidentiary exhibits, sought to be introduced into evidence, should not be displayed to the jury prior to their admission.

“Proposition of Law No. VI

“Victim character evidence is inadmissible in the guilt-innocence phase of a capital trial.

“Proposition of Law No. VII

“A trial court should not admit evidentiary exhibits absent proper authentication.

“Proposition of Law No. VIII

“Expert testimony should be excluded from evidence when no basis or foundation for such testimony is established and its admission is irrelevant.

“Proposition of Law No. IX

“The use of a single photograph for identification purposes is impermissibly suggestive and destroys any reliability of the identification.

“Proposition of Law No. X

“Duplicative and repetitive gruesome photographs are inadmissible in a capital prosecution.

“Proposition of Law No. XI

“When the state admits actual physical exhibits into evidence, the introduction of photographs of those items, having no independent evidentiary value, is error since it only serves to cumulate the quantity of evidence and overstate the state’s case.

“Proposition of Law No. XII

“Misconduct by the prosecuting attorney in either the guilt-innocence or penalty phase of a capital case will serve as the basis of a reversal if it denies the *649 capital defendant a fair determination of either his guilt or innocence or the appropriate sentence in the case.

“Proposition of Law No. XIII

“A jury in a criminal case must be instructed to find every element of the offense beyond a reasonable doubt.

“Proposition of Law No. XIV

“Erroneous jury instructions in either the guilt-innocence or penalty phase of a capital case mandate reversal of the conviction and/or death sentence.

“Proposition of Law No. XV

“An indigent defendant is entitled to the appointment of a defense expert, at state’s expense, to assure he has a fair opportunity to present his defense.

“Proposition of Law No. XVI

“The state may re-admit evidence from the guilt-innocence phase of a capital case into the penalty phase only if they are relevant to the death penalty specifications of which appellant was found guilty.

“Proposition of Law No. XVII

“A trial court’s use of the word ‘recommendation’ (when describing the jury verdict) in voir dire and penalty phase jury instructions denies a capital defendant a fair determination of his sentence by the jury.

“Proposition of Law No. XVIII

“A trial court should not engage in communications with a deliberating jury without notice to and consultation with the parties involved.

“Proposition XIX

“A capital defendant is entitled to the effective assistance of counsel throughout all stages of the capital prosecution.

“Proposition of Law No. XX

“When a capital defendant is indicted and later convicted under both Sections of R.C. 2903.01 when there is but one victim, the trial court should sentence the defendant under only one of the counts and vacate the other.

“Proposition of Law No. XXI

“When a trial court opinion in a capital case is replete with errors and fails to correctly weigh the aggravating circumstances and mitigating factors the appropriate remedy is vacation of the death penalty.

*650 “Proposition of Law No. XXII

“A capital appellant is constitutionally entitled to an independent review of his conviction and death sentence by both the court of appeals and the Ohio Supreme Court.

“Proposition of Law No. XXIII

“The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio Revised Code, Section[s] 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, Ohio’s statutory provisions governing the imposition of the death penalty, do not meet the prescribed requirements and thus are unconstitutional, both on their face and as applied.”

. The action of the trial judge in this instance appears to be inapposite to the judge’s treatment of prospective juror Townes. Mr. Townes indicated he had been convicted of manslaughter, and the trial judge immediately excused him.