Summary
reversing and remanding for a new trial, where all of the members of the jury read a prejudicial newspaper report concerning the defendant's criminal record, even though each juror indicated the report would not have an effect on the verdict
Summary of this case from State v. BaileyOpinion
No. 72-837
Decided June 27, 1973.
Criminal procedure — Evidence — Cross-examination of defendant — Questions concerning commission of another offense — Newspaper report concerning defendant's criminal record — Seen and read by jurors — Prejudicial error requiring new trial, when.
APPEAL from the Court of Appeals for Hamilton County.
When the car driven by appellant, James P. Craven, was stopped by police it was discovered that the license plates were not registered to the car or to defendant. Arresting him for driving with ficticious tags, the officers discovered a loaded automatic pistol beneath the car seat. Appellant was tried before a jury in the Court of Common Pleas of Hamilton County on an indictment charging him with carrying a concealed weapon.
Gwendolyn Williams, a passenger in the car, was presented by the defense and testified that at the time in question she had a large sum of money on her person from her place of employment and was on the way to the bank to deposit it; that she had the weapon in question on her person; but that, when the car was stopped by the police, she panicked and laid the weapon on the floor of the automobile.
Upon cross-examination by the prosecutor, she was questioned concerning her place of employment, a pony keg, and during the said questioning was asked:
"Q. Heroin? Did you sell heroin there?
"Mr. Smith [counsel for defendant]: Objection to that and I ask the jury be specifically instructed to disregard that and the prosecutor be reprimanded.
"The Court: Whether or not they sold heroin has nothing to do with this case and you are to forget that the word was ever mentioned."
Appellant testified that he had not seen the gun that evening, but it "looks like the gun they keep at the store." He denied having the gun in his possession and stated that he was not aware that Miss Williams had the gun; that the weapon was not on the floor of the automobile when he got out of it.
Upon cross-examination, the prosecutor asked defendant:
"Q. Ever sell heroin?
"A. No.
"Q. Isn't it fact that police found $35,000 worth of heroin in your home?
"Mr. Smith: Objection.
"The Court: Sustained. And the jury will disregard it."
Although again admonished, the prosecutor persisted in attempting, unsuccessfully, to establish that defendant had been convicted of a felony, and the nature of the offense. The court again sustained the defense's objection. The case was submitted, without rebuttal testimony, to the jury which, after deliberation, indicated that it had arrived at a verdict. Just prior to the announcement of the verdict, the following occurred:
"Mr. Smith: There is something that has come to my attention while the jury has been deliberating and that is the intensive publicity on this case last night, so before the jury announces its verdict I would ask the court if any of them saw this and if it did affect them in their deliberation. I have no way of knowing what that verdict is, but I would ask the court to inquire.
"The Court: Let the record show that at the end of the defendant's case the defendant renewed his motion for dismissal, which motion was overruled. Bring the jury in."
The jury was brought into the courtroom (at 11:58 a.m.), after which the following colloquy occurred.
"The Court: Members of the jury: During your deliberations it was called to my attention that there was quite a bit of publicity in the newspaper last night and radio and television concerning this case. May I ask you how many of you heard or read anything about it? Ask you further if it had any effect whatsoever on your verdict?
"(Several jurors said, `No.')
"Mr. Smith: May we have the record exactly who of the jurors read this?
"The Court: I think all of them did.
"Juror 7: I didn't know nothing about it until it was in the paper.
"Mr. Smith: In view of that I would move for a dismissal if they read those newspapers.
"The Court: Your motion will be overruled.
"Mr. Smith: Against the admonition of the court.
"The Court: Overruled, because each juror indicated it in no way influenced them in arriving at a verdict.
"Members of the jury: Have you arrived at a verdict?
"Juror 11: Yes.
"The Court: If you will hand it to the clerk he will read it as it will be recorded.
"[The verdict of guilty was read by the clerk.]
"The Court: Anything further gentlemen?
"Mr. Smith: May we have the jury polled, Judge?
"The Court: Yes. Will you poll the jury?
"(The clerk polled the jury and each juror answered in the affirmative that the verdict just read was his true verdict.)"
Thus, the trial court made its determination that all members of the jury read this particular newspaper report concerning the criminal record of Craven. It further concluded that the newspaper account did not have any effect upon the verdict of each juror.
Motion for new trial with attached affidavit, stated that immediately following the jury verdict, defense counsel removed from the jury room, pursuant to the court's directive and with assistance of the bailiff, a newspaper containing the article about defendant and that the article read:
"CRAVEN BEING TRIED NOW ON CITY CHARGE
"James P. Craven, who was convicted of six drug and firearms charges by a federal jury Jan. 12 and is awaiting sentence in U.S. District Court, is on trial before a Hamilton County Common Pleas Court jury today on a charge of carrying a concealed weapon.
"Judge William R. Matthews, of Common Pleas Court, overruled a motion by Craven's attorney, Eugene Smith, to strike the evidence on the grounds of illegal search of Craven's Lincoln Continental car in December 1970, at Madison and Edwards road.
"Cincinnati patrolman Thomas Mehas and Ronald Kerby said they observed Craven's car straddling the center line just before it pulled into a service station at Madison and Edwards road.
"Kerby then searched the auto and found a loaded and cocked revolver under the front seat, he said.
"Smith said the search was illegal because the policemen had no knowledge of or reason to believe that a felony had or was about to be committed.
"Craven was convicted in federal court on charges which stemmed from a federal and local police raid on his home at 10180 Rustic lane in Woodlawn last April 30.
"Police said they found 302 grams of heroin and 79 guns in the home."
The defense moved for a new trial based upon the foregoing events. The motion was overruled and the Court of Appeals affirmed the judgment of the Court of Common Pleas.
"The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Simon L. Leis, Jr., prosecuting attorney, Mr. Leonard Kirschner and Mr. Clayton E. Shea, for appellee.
Mr. Peter F. Beasley and Mr. Ronald B. Finn, for appellant.
Two cases upon all fours with the facts of this case require its reversal.
In the first of these, State v. Doll (1970), 24 Ohio St.2d 130, the inflammatory effect that results from the introduction of evidence tending to show the commission of another offense by the defendant was recognized as generally so prejudicial as to justify a reversal under the facts of that case. The prejudice here is much more obvious than the prejudice in State v. Doll, and its lack of probative value on any material issue before the court is even more apparent. Standing alone, this error would require retrial of the matter.
When considered in conjunction with the holding of the United States Supreme Court in Marshall v. United States, the fact that the jurors saw and read newspaper articles, thus becoming aware of other inflammatory evidence in this improper manner together with the combination of prejudicial improprieties, cannot be cured by judicially solicited assurances from the jurors to the effect that each was not influenced thereby.
Marshall v. United States (1959), 360 U.S. 310, held:
"At a jury trial in a federal District Court in which petitioner was convicted of unlawfully dispensing certain drugs without a prescription from a licensed physician, in violation of 21 U.S.C. Section 331(k), the judge refused to permit the government to introduce evidence that petitioner had previously practiced medicine without a license; but some of the jurors saw and read newspaper articles alleging that he had a record of two previous felony convictions and reciting other defamatory matters about him. Upon being questioned, each of these jurors assured the judge that he would not be influenced by the news articles and that he could decide the case only on the evidence of record. Held: The harm to petitioner that resulted when prejudicial information denied admission into evidence was brought before jurors through newspapers requires that a new trial be granted."
Therefore, the judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Common Pleas for a new trial.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.