Summary
finding trial court's decision to read portions of transcribed testimony to deliberating jury within court's discretion
Summary of this case from STATE v. COXOpinion
No. 70-404
Decided March 17, 1971.
Criminal procedure — First degree murder — Trial — Selection of jurors — Peremptory challenges in capital case — R.C. 2945.21 — Constitutional — Expression of satisfaction with jury by counsel — Not waiver of right to challenge, when — Failure to exercise challenge in turn — Remainng peremptory challenges may be used, when — Refusal to excuse juror for cause — Not error, when — Evidence — R.C. 2315.06 — Testimony read to jury after retiring — Not abuse of discretion, when.
1. On voir dire examination, where counsel expresses satisfaction with a jury "as it is now constituted," in response to the court's offer of an opportunity to exercise a peremptory challenge, that statement does not amount to a waiver of the right to use any remaining peremptory challenges if the membership of the jury changes.
2. Under R.C. 2945.21, a declination in turn to exercise a peremptory challenge to dismiss a juror does not render the state or the defendant unable reasonably to use any remaining peremptory challenges to dismiss a juror seated either before or after the declination.
3. Athough neither the state nor a defendant may be deprived of any of the challenges by reason of the order of exercising the same, the trial court has the obligation to supervise the peremptory challenge procedure so that the opportunity to challenge is presented to the parties alternately.
4. After jurors retire to deliberate, upon request from the jury, a court in the exercise of sound discretion may cause to be read all or part of the testimony of any witness, in the presence of or after reasonable notice to the parties or their counsel.
APPEAL from the Court of Appeals for Hamilton County.
Defendant, Jefferson Thomas Berry, was indicted on two counts of first degree murder for the killing of Juanita Perkins and James Arthur Hartman. On August 6, 1968, the bodies of both victims were found in a badly decomposed state in the Beverly Apartments, located on Gilbert Avenue in Cincinnati, Ohio. The testimony of a medical expert indicated that the approximate time of their deaths was four days prior to August 6, 1968. Another expert witness testified that a .38 caliber weapon was used in the killings.
At the time of the voir dire examination, the defendant sought to have juror number 5, Marion C. Rogers, excused for cause. This challenge was denied. After the seating of twelve jurors, the defense and the prosecution began the alternate exercise of peremptory challenges to dismiss jurors, each using five.
The prosecutor then stated: "The state is satisfied with the jury as it is now constituted." Defendant then exercised his sixth, and final, peremptory challenge, on juror Rogers. After overruling a defense objection, the court allowed the prosecutor to exercise his final peremptory challenge on juror number 6, Martha Herche, who had been seated at the time of the prosecutor's above-quoted statement.
At trial, the state introduced evidence showing that, at about 10:00 p. m. on August 2, 1968, the defendant was seen by participants in a "crap" game being held in front of the K.T. Lounge on Gilbert Avenue, across the street from the apartment where the bodies were found. Defendant approached and entered the game. Two players in the game testified that they noticed a bulge under his (Berry's) shirt, and stated that it appeared to be the outline of a gun. After an argument, Berry left the game.
Ernest Zanders, Robert Smith and Maurice Smith, witnesses for the prosecution, testified as to the events following Berry's departure from the game. The former two testified that after leaving the game Berry walked "down the street," while Maurice Smith stated that after leaving Berry headed "in the direction" of the Beverly Apartments.
The testimony of those three witnesses next reveals that shots (or what sounded like a cap pistol to Maurice Smith), and the sound of a woman screaming "Oh, my God," were heard from the direction of the Beverly. There was no testimony as to how much time elapsed between Berry's departure from the game and those sounds; but the witnesses did state that about three to five minutes thereafter, Berry appeared in the middle of Gilbert Avenue, seemingly crossing the street towards the "crap" game. After asking for a ride, and being refused, Berry began walking up Gilbert Avenue towards Deerfield.
State's witness Arthur Wright, a former co-worker of the defendant's, testified that prior to August 2, 1968, he had twice seen Juanita Perkins at the defendant's residence; that he had seen Berry with a .38 special gun and had tried unsuccessfully to purchase it from him. Wright also stated that, in a conversation at work sometime in the summer before August, Berry had told him that Juanita Perkins had left him and gone with "Arthur * * * a cab driver"; that Berry had threatened to "catch them, them two together, he was going to kill them."
During their deliberations, the jury twice requested information from the court with respect to certain testimony. In response to the requests the trial judge related to the jury his recollection of one witness's testimony, and had read to the jury from the transcript certain portions of testimony of one witness, and the complete testimony of four witnesses.
The jury returned a verdict of guilty on both counts of the indictment, without a recommendation for mercy. Defendant's motion for a new trial was overruled, and his appeal to the Court of Appeals resulted in an affirmance of the trial court's judgment. Defendant's appeal is now before this court as a matter of right.
Mr. Melvin G. Rueger, prosecuting attorney, and Mr. Robert K. Sachs, for appellee.
Mr. Thomas Stueve and Mr. Jerry R. Jung, for appellant.
Appellant sets forth five basic contentions, and we deal with them in the order presented.
I.
It is urged that the trial court erred in allowing the state to exercise its sixth peremptory challenge on a juror after the prosecutor had expressed satisfaction with the jury as it was then constituted. Appellant argues that the prosecutor had forfeited the use of a peremptory challenge on a juror who had been seated at the time he made the statement.
We do not believe that the prosecutor's statement, "the state is satisfied with the jury as it is now constituted," made after he had exercised five peremptory challenges, can reasonably be interpreted as a waiver or forfeiture of the right to exercise the state's remaining peremptory challenge.
A number of factors are generally evaluated by trial counsel in the exercise of peremptory challenges. Among these are the character and balance of a jury, which counsel may view as substantially alterable by the removal or addition of any one person. Such an alteration might serve to change a litigant's view as to the propriety of allowing any particular juror to remain seated, even though that juror's presence had been approved as the jury was then constituted.
We understand the prosecutor's words of satisfaction with the jury, as then constituted, to imply that should the prospective jury membership change, the remaining peremptory challenge might be exercised.
If, as appellant urges, a peremptory challenge must actually be used to dismiss a juror when the alternate opportunity to challenge is presented, express words of reservation, no matter how explicit, of the right to reserve the exercise of a challenge could not be effective to extend that right beyond the time of the first declination. That argument assumes that once a party "passed" his alternate turn to peremptory challenge, the right could not thereafter be resurrected, even to challenge a newly seated juror. Such a view of the utilization of challenges, which we reject, would be a marked departure from the well-established practice in Ohio trial courts.
Appellant contends further that the provision in R.C. 2945.21, that "challenges shall be exercised alternately," is in such conflict with the provision of the same section prohibiting a party from being deprived of any of the challenges by reason of the order of exercising the same, or the time and manner of exercising the same, that the statute is unconstitutional.
R.C. 2945.21 suffers no constitutional infirmity. We are obligated to uphold the validity of an act of the General Assembly whenever possible. Reckner v. Warner (1872), 22 Ohio St. 275, 294; Wilson v. Kennedy (1949), 151 Ohio St. 485, 492; State, ex rel. Mack, v. Guckenberger (1942), 139 Ohio St. 273, 277. Moreover, our commitment is to attempt to construe a statute in such a way as to preserve its validity should it have more than one possible interpretation. See Panama Rd. Co. v. Johnson (1924), 264 U.S. 375, 390; Bratton v. Chandler (1922), 260 U.S. 110, 114.
R.C. 2945.21 clearly provides: "Neither the state nor a defendant may be deprived of any of the challenges by reason of such order of exercising the same, or the time and manner of exercising the same." Even prior to the original enactment of this statute in 1929 (113 Ohio Laws 123, 183), in Koch v. State (1877), 32 Ohio St. 352, this court held that a defendant was granted the absolute right to his statutory number of peremptory challenges, in spite of his failure to exercise one in turn.
The provision of the statute that such challenges "shall be exercised alternately" furnishes a procedural device to be employed by a trial judge in conducting the selection and seating of a jury. We do not believe that the General Assembly, in enacting the statute, intended to prohibit a party from "passing" an alternate turn which would foreclose the use of any remaining peremptory challenges. It is uncommon for the General Assembly to insulate a granted right by articulating such well-chosen words of protection. Not only does the statute provide (1) the state and the defendant each with six peremptory challenges, but also provides (2) that "neither the state nor a defendant may be deprived of any of the challenges by reason of such order of exercising the same, or the time or manner of exercising the same." Such strong language needs no interpretation and must be afforded our highest regard.
We therefore hold that under R.C. 2945.21, while the parties shall alternately exercise their peremptory challenges, the passing of a turn does not operate as an absolute waiver, precluding a party from later making use of his full statutory number of challenges. The statute is complied with as long as the opportunity to challenge peremptorily is alternately offered to the parties by the court.
II.
Appellant urges that the state's evidence consisted of inferences based upon inferences, and should not be allowed to sustain a conviction. Apparently appellant raises the issue of whether the verdicts of guilty were against the manifest weight of the evidence.
In State v. Martin (1955), 164 Ohio St. 54, 57, it was stated:
"It has been established, as a general policy, that the Supreme Court will not determine as to the weight of the evidence.
"This court may, however, examine the record with a view of determining whether the proper rules as to the weight of the evidence and degree of proof have been applied."
See, also, State v. Stewart (1964), 176 Ohio St. 156, 160; State v. Cliff (1969), 19 Ohio St.2d 31, 33.
In keeping with our general policy, we have reviewed the record and the court's instructions to the jury. Obviously, the state's case consists solely of circumstantial evidence. Nevertheless, from the evidence adduced we find that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt, and that the question was properly one for determination by the jury. See State v. Antill (1964), 176 Ohio St. 61.
III.
Appellant complains that the trial court's refusal to excuse juror Rogers for cause deprived him of a fair and impartial jury. He argues that he then was forced to exercise a peremptory challenge on Rogers which could have been used otherwise.
A defendant is prejudiced by the refusal to allow a proper challenge for cause only when he has exhausted his peremptory challenges before the full jury is seated. Hartnett v. State (1885), 42 Ohio St. 568, paragraph four of the syllabus. We find no error, however, in the trial court's refusal to excuse juror Rogers for cause. The record discloses that this juror had, at one time, a casual business relationship with a person named Juanita Perkins, but the voir dire examination did not disclose that such person was one of the victims involved in this case; that he vaguely remembered reading about the murders in the paper, and that, prior to an explanation of a jury's function, he believed that a defendant should offer some evidence of his innocence. Upon inquiry by the trial judge, Rogers stated that he could follow the court's instructions regarding the applicable law, regardless of what he had thought the law to be.
Under R.C. 2945.25, there is no basis upon which the trial court was required to excuse juror Rogers for cause. See Palmer v. State (1885), 42 Ohio St. 596; Dew v. McDivitt (1876), 31 Ohio St. 139.
R.C. 2945.25 reads in pertinent part as follows:
"A person called as a juror on an indictment may be challenged for the following causes:
"(A) That he was a member of the grand jury which found such indictment;
"(B) That he has formed or express an opinion as to the guilt or innocence of the accused; but if a juror has formed or expressed such an opinion, the court shall examine such juror on oath, as to the ground 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 * * *."
IV.
Appellant urges that the trial court allowed the prosecution to pursue a line of improper questioning which was prejudicial. Appellant generally asserts that the prosecution was allowed to bring out new testimony on re-direct examination of witness Wright, and that many of the questions themselves were prejudicially worded.
We find appropriate here the words of Justice Cardozo in Snyder v. Massachusetts (1934), 291 U.S. 97, 122, cited in Dutton v. Evans (1970), 39 L.W. 4015, 4019, 27 L. Ed. 2d 213, 227, when he stated:
"* * * There is danger that the criminal law will be brought into contempt — that discredit will even touch the great immunities assured by the Fourteenth Amendment — if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free."
Our reading of the record convinces us that the trial judge's rulings on the admissibility of evidence were not erroneous to the prejudice of appellant.
V.
Finally, appellant submits that the trial court abused its discretion in allowing certain testimony taken at trial to be read to the deliberating jury. It is claimed that this procedure presented to the jury certain testimony out of context and without the opportunity to observe the witnesses' demeanor.
While we agree with appellant's contention that a witness's demeanor on the stand is important to a jury's consideration of his testimony, we fail to see how such observation is lost, to the prejudice of a defendant, when a jury merely asks to have the testimony of a particular witness repeated to it. The jury's recollection of the witness cannot be assumed to have so diminished as to give the reading of the testimony credibility that was not present when it was originally given.
R.C. 2315.06 specifically provides that should a jury disagree on the testimony, "in the presence of or after notice to the parties or their counsel, the court may state its recollection of the testimony upon a disputed point." Although it is a well settled rule in most jurisdictions that a court may, in its sound discretion, read part of the testimony taken at trial to a jury which is in deliberation (see, generally, 50 A.L.R. 2d 176, 180, 192), this court has not heretofore passed on this question. We hold that after jurors retire to deliberate, upon request from the jury a court may, in the exercise of sound discretion, cause to be read all or a part of the testimony of any witness, in the presence of or after reasonable notice to the parties or their counsel. Our reading of the record reveals no abuse of discretion in allowing the testimony to be read to the jury. See, also, Itskin v. State (1935), 51 Ohio App. 211; State v. Jessop (1952), 71 Ohio Law Abs. 429.
Accordingly, we affirm the decision of the Court of Appeals.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, STEPHENSON, STERN and LEACH, JJ., concur.
STEPHENSON, J., of the Fourth Appellate District, sitting for CORRIGAN, J.