Petition — Ruppert v. Ohio

Office - Supreme Cour, Ue

81-1026 FILED

CASE NO i.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

JAMES U. RUPPERT,

Petitioner,

-VS-

STATE OF OHIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF OHIO

HUGH D. HOLBROCK

TIMOTHY R. EVANS

315 South Monument Avenue

P. 0. Box 687

Hamilton, Ohio 45011

Telephone: (513) 868-7600

Attorneys for Petitioner

The Petitioner, James U. Ruppert

respectfully prays that a Writ of Certiorari

issue to review the Opinion of the State of

Ohio Twelfth District Court of Appeals from

which Decision the Ohio Supreme Court refused

to review on October 21, 1981.

QUESTIONS PRESENTED FOR REVIEW

1. When a defendant is tried by a three-

judge panel under a statute providing that only

if the accused is charged with an offense

puhishable by death will he be tried by three

judges and the death penalty is later found to

be unconstitutional, the defendant is only

properly tried by the presiding judge, the one

originally assigned to the case, and where that

judge finds the defendant not guilty, he may not

be retried.

INDEX

QUESTIONS PRESENTED FOR MVIE NV. ...

STATEMENT OF JuRTSDICTT¶NNSVSdNSSdn.

CONSTITUTIONAL PROVISIONS INVOLVED.....

STATEMENT OF THE cage.

STATEMENT OF FACTS .cccscccccccscecesess

REASONS FOR GRANTING IRI.

1. This Court should grant a

Writ of Certiorari to review

this decision since the defendant

who was originally tried by a

three-judge panel was tried under

a statute in the State of Ohio

providing for a three-judge panel

only when the death penalty

could be imposed. Since the death

penalty could not be imposed

constitutionally in Ohio the

defendant was improperly tried

and the only person with authority

to try the defendant was the

presiding Judge, Fred Cramer, who

found the defendant not guilty

by reason of insanity. Therefore,

to re-try the defendant now

would violate his Fifth Amendment

protection against double jeopardy

under the United States

Const tut Loneccccccccccccccecsccece

APPENDIX

Memorandum Decision and Judgment

Entry, dated June 26, 1981..

Appeal from the Court of Appeals.

— 2

ny Oo KE K —

AUTHORITIES

Bell vs. Ohio, 438 US 637 t

Lockett va. Ohio, 428 US 366

Ohio Revised Code 2945.06..+.sseeeceeeees

State vse. Thomas, 61 08 2d 254 .

Constitution of the United States of

America, Amendment WWW.

vu @ WO ©

STATEMENT OF JURISDICTION

The Ohio Supreme Court declized to hear

this matter on October 21, 1981. The jurisdiction

of this Court is invoked under 28 U.S.C. Section

1257 (3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitution of the United States of

America, Amendment V:

"No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a Grand Jury, except in

cases arising in the land or naval

forces, or in the malitia, when in

actual service in time of War or public

danger; nor shall any person be subject

for the same offence to be twice put

in jeopardy of life or limb; nor shall

be compelled in any criminal case to

be a witness against himself, nor

deprived of life, liberty or property,

without due process of law; nor shall

private property be taken for public use,

without just compensation.

STATEMENT OF THE CASE

The defendant, James U. Ruppert, was

indicted in 1975 for the murder of eleven (11)

members of his family, and this Court is no

doubt familiar with the surroundings of this

case having once heard it previously on appeal.

James U. Ruppert was convicted by a majority,

i.e., two out of three, of a Three-Judge Panel,

Judge Fred Cramer finding the defendant not

guilty, the other two Judges finding the defendant

guilty. *

The case was appealed on the grounds that

a majority verdict was not constitutional and

contrary to the law of Ohio and furthermore that

James U. Ruppert had been advised that it would

take all three judges to convict him and was yet

convicted by a majority of the Judges. The

Court of Appeals reversed the conviction on

the basis that James U. Ruppert had been

misinformed on his Jury Waiver, which decision

was affirmed by the Ohio Supreme Court and

certiorari was denied by the United States

Supreme Court. A new trial was ordered for

the defendant. The defendant filed a Motion

To Acquit based upon the grounds that to

re-try him would constitute double jeopardy.

The case was argued before visiting Judge

A. Ross Siverling who denied the Motion To

-5-

Acquit the defendant. The Ohio State

Twelfth District Court of Appeals affirmed

this decision and the Ohio Supreme Court

refused to hear said case. It is now urged

that this Court should grant a Writ of

Certiorari.

STATEMENT OF FACTS

James U. Ruppert was convicted by two out

of three of a Three-Judge Panel. Judge Fred B.

Cramer presided at the trial and because the

Jury Waiver was signed, a three-judge panel was

selected, composing of Judge Cramer, the

presiding Judge, Judge Marrs, and Judge Fiehrer.

Judge Cramer acquitted the defendant; however

Judge Marrs and Judge Fiehrer found the

defendant guilty.

REASONS FOR GRANTING WRIT

1. This Court should grant a Writ of

Certiorari to review this decision since the

defendant who was originally tried by a three-

judge panel was tried under a statute in the

State of Ohio providing for a three-judge panel

only when the death penalty could be imposed.

Since the death penalty could not be imposed

constitutionally in Ohio the defendant was

improperly tried and the only person with

authority to try the defendant was the presiding

Judge, Fred Cramer, who found the defendant not

guilty by reason of insanity. Therefore, to

re-try the defendant now would violate his

Fifth Amendment protection against double

jeopardy under the United States Constitution.

The defendant has appealed from the .

denial of the motion to Acquit on the

grounds of double jeopardy. There

can be no doubt that even though the

defendant has not gone to trial yet

for the second time, such an order is

immediately appealable. In the case of

State vs. Thowas, 61 OS 2d 254, the Supreme

Court of Ohio held:

"The overruling of a Motion to

Dismiss on the grounds of double

jeopardy is a final appealable

order... "

a

The Court reasoned that it not only

protects the accused from mltiple prosecu-

tions for the same offense, but it also

protects the defendant from having to

stand trial a second time, even if he is

not punished. Therefore, there is no

doubt that the order is immediately appeal-

able. The question then is has James

Ruppert been placed in double jeopardy.

There are two propositions of law which

are such plain law that no citations

are needed. The first is that where

the defendant appeals a conviction and

obtains a reversal, he is not placed

in double jeopardy by a subsequent trial.

The second is likewise that where a

defendant has been acquitted on a

previous trial, he may not be retried.

Thus the question becomes has James

Ruppert been acquitted?

As the Court will remember, James

Ruppert was convicted by two out of

three of a three judge panel with the

presiding Judge, the Judge to whom the

case was originally assigned having

found James Ruppert not guilty by reason

of insanity. James Ruppert was tried

by a three Judge panel by virtue of

Ohio Revised Code 2945.06 which provides

V

that if the accused waives a jury if he

is charged with an offense punishable

by death, he will be tried by three

judges, the three judges consisting

of the presiding judge and two others

appointed by the presiding judge.

However, James Ruppert was not charged

with aggravated murder with specifica-

tions for which the death penalty was

available at the time. However, the

United States Supreme Court, in Bell

vs. Ohio 438 US 637, and Lockett vs.

Ohio, 438 US 586, held that the death

penalty was unconstitutional and that

no one could be sentenced to death

under that statute.

Thus, since James Ruppert was not

charged with an offense punishable by

death, he could not legally be tried by

a three-judge panel, and Judge Cramer

then had no authority to appoint a three-

judge panel. If a Statute is unconstitu-

tional it is void from its inception, and

since the death penalty was unconstitu-

tional, then it was void. Thus, the

two judges who sat with Judge Cramer were

mere surplusage and the only Judge who

was properly sitting in the case, Fred

-9-

B. Cramer, found the defendant Not

Guilty by reason of insanity. His

decision was the only valid judgment

and therefore the defendant has in effect

been acquitted of the charge and been

found Not Guilty by reason of insanity

and therefore the State's attempt to

try him is double jeopardy and the

defendant should have been dismissed.

-10-

CONCLUS ION

Therefore, petitioner James Ruppert

submits to this Court that he has been

acquitted of the charge and it was error

for the Courts to refuse to grant his

Motion To Acquit and Motion to Dismiss the

defendant and the State is barred from

re-trying him a second time and that this

Court should grant Certiorari to determine

this question.

Respectfully Submitted,

HOLBROCK, JONSON, BRESSLER & HOUSER

315 South Monument

P. O. Box 687

Hamilton, Ohio 45012

Telephone: (513) 868-7600

By 4

Hugh D. Holbroc

and

By

Timothy R. Evans

alia

APPENDIX

Filed in the Court of Appeals

Butler County, Ohio

June 26, 1981

Edward S. Robb, Jr.

Clerk

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY, OHIO

STATE OF OHIO, * Case No. CA80-04-0037

Plaintiff-Appellee

vs. * MEMORANDUM DECISION

AND

* —

Defendant-Appe l lant 6-26-81

4

S A A A A A A * *

John F. Holcomb, Butler County Prosecutor,

Butler county Courthouse, Hamilton, OH 45011

Counsel for Plaintiff-Appellee

H. J. Bressler, Hugh D. Holbrock, Timothy R.

Evans, Holbrock, Jonson, Bressler & Houser,

315 So. Monument Avenue, Hamilton, OH 45011

PER CURIAM

This cause came on to be heard upon the

appeal, transcript of the docket, journal

entries, original papers, transcript of the

proceedings from the Court of Common Pleas

App. 1

of Butler County, Ohio, and the brief and

arguments of counsel.

Now, therefore, the assignment of error

having been fully considered, is accordingly

passed upon in conformity with App. R. (12)

A as follows:

Def endant-appe Ilant, James U. Ruppert,

was indicted on April 4, 1975, for aggravated

murder with specifications, in violation of

R. C. 2903.01 (A) and 2929.04 (A) (5). He is

alleged to have mrdered his mother, brother,

sister-in-law, and their eight children. To

the indictments, pleas of not guilty and not

guilty by reason of insanity were entered in

his behalf. Preliminarily, he was found

competent to stand trial. A written jury

waiver was signed by appellant and entered

into the court records; the waiver included

a consent to be tried by three judges of

the Common Pleas Court of Butler County,

Ohio. Judge Cramer signed an Entry relative

to that panel, to wit:

The defendant herein having duly,

and in accordance with law, waived

his right to a trial by jury in this

cause and having elected to be tried

by a panel of three judges, I, as

Presiding Judge of the Court of Common

Pleas of Butler County, Ohio, do

designate Arthur J. Fiehrer, Robert L.

Mar d the th

rn. ne —

App. 2

Nowhere does the record indicate that the

cause had been assigned to Judge Cramer; the

Entry merely acknowledges that Judge Cramer

was the Presiding Judge and that, as such,

the statutory duty to form the panel fell

upon him.

Following the trial to the three-judge

panel, Judge Fiehrer and Judge Marre signed

a majority verdict indicating that the

state had proved beyond a reasonable doubt

that appellant was guilty of aggravated

murder, and that he was sane at the time of

the commission of the offenses. Judge

Cramer did not agree and would have found

him not guilty by reason of insanity.

Appellant thereafter filed a Motion

For a New Trial stating as one of the

grounds that the jury waiver was not

knowingly, intelligently, and voluntarily

given because it was given upon the

invalid premise that the verdict was required

to be unanimous. The motion was overruled

in the Common Pleas court, and appellant

was sentenced to eleven consecutive live

terms. Since the verdict of the panel

was not unanimous, the death penalty was

not imposed.

Notice of appeal was timely filed,

and in due course, the appeal was

App. 3

heard and decided in the First District

Court of Appeals wherein the judgment

was reversed. State ve. Ruppert

No. CA75-08-0067 (lst Dist. August 3,

1978). The Ohio Supreme Court

affirmed the court of appeals. State

vs. Ruppert (1978), 54 Ohio St. 2d 263,

375 N. E. 2d 1250. The United States

Supreme Court denied certiorari. The

reversal was based upon invalidity

of the jury waiver. At the same time,

the appellate court, pursuant to

another assignment of error, held that

the judgment and conviction were not

against the manifest weight of the

evidence.

A new trial was ordered for Mr.

Ruppert. A motion for change of venue

was granted, and this cause is currently

docketed in Hancock County, Findlay, Ohio,

for trial, pending the outcome of this

appeal.

The instant appeal was taken from the

trial court's denial of appellant's motion

for acquittal based upon a claim of

double jeopardy. His single proposition

of law is stated as follows:

The Court erred in overruling

the Defendant's Motion for Acquittal

App. 4

for the reason that the Defendant has

been found Not Guilty in a previous

trial and therefore could not be

retried.

The overruling of a Motion to Dismiss on

the grounds of double jeopardy is a final

appealable order. State v. Thomas (1980),

61 Ohio St. 2d 254, 400 K. E. 2d 897.

Appellant asserts that Judge Cramer

was the only judge before whom appellant

was validly tried. His claim is that Judge

Cramer, as presiding judge, was the judge

to whom the case was originally assigned.

The record does not support that conten-

tion. Judge Cramer, as presiding judge,

was following the dictates of R. C.

2945.06 in assembling a panel, and that

is reflected in his Entry. His decision

carried no more weight than did the

decision of the other two judges. The fact

is, appellant was improperly tried by

the three-judge panel because there was

no valid jury waiver. Surely, if one of

the other two judges who found appellant

guilty had been presiding judge at that

time, appellant would not now attempt to

argue that his decision was binding. No

one person's decision carried more weight

than the others. R. C. 2945. 06

contemplates a majority vote. State vs.

App. 5

Ruppert (1978), 54 Ohio St. 2d 263,

375 K. E. 2d 1250. Therefore, the only

decision was the collective one.

The jurisdictional provisions of

R. C. 2945.06 have never been repealed

and remain vaild. Although Lockett vs.

Ohio (1978), 438 U.S. 586, 98 8. Ct. 2954

and Bell vs. Ohio (1978), 438 U. 8. 637,

98 8. CT. 2977 held that Ohio's death

penalty statutes were unconstitutional,

those decisions only invalidated the

portion of the judgment pertaining to the

death penalty. Although those cases

would void the portions of those statutes

relative to imposition of the death

penalty itself, as a penalty, it had no

effect upon the remainder of this statute.

Use of the three-judge panel has been

upheld as constitutional. State ys.

Cotton (1978), 56 Ohio St. 2d 8, 381 N. E.

2d 190.

However adeptly appellant attempts to

obfuscate the issue, the essential

element presented is whether there may

be a retrial following reversal of a

conviction on appeal. There is only one

instance in which conviction will prevent

a retrial; when a conviction is reversed on

the weight or sufficiency of evidence, the

App. 6

defendant must be discharged. Burks v.

United States (1978), 437 U.S.1, 98 S. Ct.

2141

When a criminal's trial has been

reversed in the Court of Appeals because

of an invalid jury waiver, a retrial does

not conflict with the constitutional rule

against double jeopardy. Beatty v. Alston

(1975), 43 Ohio St. 2d 126, 330 N.E. 2d 921;

cert. denied 423 U.S. 1000, 96 8. Ct. 432;

Foran v. Maxwell (1962), 1973 Ohio St.561,

184 N. E. 2d 398; Crim. R. 33(D).

Appellant's assignment of error is

accordingly not well taken.

The assignment of error properly before

this Court having been ruled upon as

heretofore set forth, it is the Order of this

Court that the judgment or final order

herein appealed from be, and the same

hereby is, affirmed, and remanded for

further proceedings according to lav.

It is further Ordered that a mandate

be sent to the Court of Common Pleas of

Butler County, Ohio, for execution upon

this judgment.

Costs to be taxed in compliance

with App. R. 24.

And the Court being of the opinion

that there were reasonable grounds for

this appeal, allows no penalty.

App. 7

It is further Ordered that a certified

copy of this Memorandum Decision and Judg-

ment Entry shall constitute the mandate

pursuant to App. R. 27.

To all of which the appellant, by

his counsel, excepts.

CASTLE, P.J., HENDRICKSON, KOEHLER, JJ.

To the Clerk:

Enter upon the journal of the Court,

per Order of the Court.

Presiding Judge

App. 8

THE SUPREME COURT OF OHIO

1981 Term

THE STATE OF OHIO, To wit: October 21, 1981

City of Columbus,

State of Ohio,

Appellee,

vs.

James U. Ruppert, No. 81-1513

Appel lant APPEAL FROM THE COURT OF

APPEALS

for Butler County

This cause, here on appeal as of

right from the Court of Appeals for Butler

County, was heard in the manner prescribed

by law, and no motion to dismiss such appeal

having been filed, the Court sua sponte

dismisses the appeal for the reason that no

substantial constitutional question exists

hereon.

It is further ordered that

a copy of this entry be certified to the

Clerk of Court of Appeals for Butler

County for entry.

I, Thomas L. Startzman, Clerk of

the Supreme Court of Ohio, certify that

App. 9

the foregoing entry was correctly copied

from the Journal of this Court.

Witness my hand and the seal of the Court

this day of 19

Clerk

Deputy

App. 10