Summary
noting that Ohio Rev. Code Ann. § 2929.03(E), now codified at § 2929.03(D), required unanimity of the panel of three judges in imposing the death sentence
Summary of this case from Jells v. MitchellOpinion
No. 77-1022
Decided May 17, 1978.
Criminal law — Capital offense — Waiver of jury trial — Not properly made, when — Three-judge panel — Majority may render verdict.
1. Where an accused, charged with a capital offense, knowingly, intelligently, and voluntarily waives his right to a trial by jury pursuant to R.C. 2945.05 and Crim. R. 23 (A), and is subsequently tried before a three-judge panel, the panel may render a verdict upon a majority vote of its members pursuant to R.C. 2945.06.
2. An accused, charged with a capital offense, has not knowingly, intelligently, and voluntarily waived his right to a trial by jury where, prior to waiving this right, he is misinformed that the three-judge panel may render a verdict pursuant to R.C. 2945.06 only by unanimous vote.
APPEAL from the Court of Appeals for Butler County.
James U. Ruppert, (defendant herein), was indicted by the Butler County grand jury on March 30, 1975, in 11 counts for purposely, and with prior calculation and design, causing the deaths of Charity Ruppert, Teresa Lee Ruppert, Carol Diane Ruppert, Michael James Ruppert, David Scott Ruppert, John Anthony Ruppert, Alma Ruppert, Ann Delores Ruppert, Leonard Ruppert, Jr., Leonard Ruppert, III, and Thomas Frank Ruppert, in violation of R.C. 2903.01(A), with the specification to each count that the offense was part of a course of conduct involving the purposeful killing of two or more persons contrary to R.C. 2929.04(A)(5).
Defendant entered a plea of not guilty and not guilty by reason of insanity to each of the counts and specifications. On May 13, 1975, the trial court determined that defendant was sane and of sufficient soundness of mind to stand trial.
Accompanied by his co-counsel, Hugh Holbrock and H.J. Bressler, defendant waived his right to a jury trial in open court on June 6, 1975.
Trial commenced before a three-judge panel on June 16, 1975, and on July 3, 1975, a majority of the court found defendant guilty of each of the 11 counts of aggravated murder and specifications. The majority found further that defendant was sane at the time he committed the offense.
Unable to unanimously find that none of the mitigating circumstances set forth in R.C. 2929.04(B) was established by a preponderance of the evidence at the mitigation hearing, the court sentenced defendant to life imprisonment for each of the 11 counts, the sentences to run consecutively.
Defendant subsequently filed a motion for new trial, later amended, in which he contended, in part, that because he was misinformed about the number of judges necessary to render a verdict on a three-judge panel, his waiver of a jury trial was not knowingly, intelligently, or voluntarily made. In the alternative, defendant contended that he was denied a fair trial since the verdict was reached by a majority vote of the panel rather than by a unanimous vote.
On July 22, 1975, the three-judge panel conducted a hearing on defendant's motion for new trial based on the testimony and affidavits of James U. Ruppert and defense attorney Hugh D. Holbrock, and on the submitted affidavits of Judge Cramer (the judge who originally accepted appellee's jury waiver and who also sat on the three-judge panel which tried the cause), prosecutor John F. Holcomb, and defense attorney H.J. Bressler. The testimony and affidavits reflect that prior to the date of the trial, defense counsel informed their client that if his case were tried to a three-judge panel, a unanimous verdict would be required to find him guilty as charged.
Also, prior to trial, Judge Cramer indicated to the defense counsel that he agreed with this interpretation of the law.
When, on June 6, 1975, Ruppert appeared in open court before Judge Cramer to waive his right to trial by jury, the following colloquy took place between Ruppert and the judge:
"Q. [J. Cramer] Now, you understand that when you are tried by a jury which you are waiving, before you can be found guilty or not guilty of any one or all of the 11 counts, all 12 of the jurors must agree?
"A. [Ruppert] Yes, sir.
"Q. But where three judges hear the case as you have consented and asked to be done, just all three have to agree?
"A. Yes, sir.
"Q. You understand that?
"A. Yes, sir.
"Q. You also understand, do you, that if you have a jury that before they can find in accordance with your defense that you were sane or insane at the time of the alleged commission of said offenses, all 12 of the jurors must agree. However, if three judges hear your case as you have requested to be done before the three judges can find that you were sane or insane at the time of the alleged commission of the offenses, all three must agree on that?
"A. Yes, sir.
"Q. I'm pointing this out to you, the difference between when the jury hears a case and three judges.
"A. Yes, sir.
"Q. And you wish to without any question, to waive your trial by jury is that right?
"A. Yes, sir.
"Q. Is there anything you want to ask the Court in reference to this? Anything you don't understand about the jury waiver?
"A. No, sir."
On June 16, 1975, immediately prior to commencement of the trial before the three-judge panel, a conference took place among all the counsel and judges participating in the cause. The subject of the three-judge panel and the number of judges necessary to render a verdict was discussed. Although there was disagreement among the members of the conference concerning the matter, a decision as to the proper rule of law was not made at that time. Apparently, Ruppert was never told that there were serious questions concerning the number of votes necessary to convict under a three-judge panel.
Shortly, after trial commenced on June 16, 1975, Judge Cramer again questioned Ruppert concerning his jury waiver:
"Q. [J. Cramer] Alright, Mr. Ruppert, last week you appeared here in court with counsel and waived in writing your right to trial by jury and it was accepted at that time. We want to now make an inquiry of you if you are standing by and reaffirming that written waiver of trial by a jury and submit to be tried by the panel of three judges who are seated here?
"A. [Ruppert] Yes, sir.
"Q. You do not wish to withdraw your waiver of trial by jury?
"A. No, sir.
"Q. And you reaffirm the fact, do you, that such waiver was executed in accordance with what we stated at the time you did execute it that you were doing it voluntarily and knowingly and fully understanding all of your rights that you have under the Constitution of the United States and Ohio and the law of this state respecting your right to trial by jury having been fully explained to you by the Court as well as your counsel? Is that correct?
"A. Yes, sir.
"Q. And you are standing by that waiver and wish not to withdraw it at this time which you are permitted to do if you wish to and the jury will try this case?
"A. No, I want it to be as it is.
"Q. And it is and you want to stand by your waiver of trial by jury?
"A. Yes, sir." (Emphasis added.)
After hearing the testimony and reviewing the affidavits and evidence of record concerning the events surrounding the jury waiver, a majority of the trial court overruled defendant's motion for new trial on the basis that he must have decided to waive a jury trial not only because of his reliance on information furnished by defense counsel and the court concerning the unanimity of the three-judge panel in rendering a guilty verdict, but also because of several other important tactical considerations. The majority reasoned, inter alia, that defendant must have been informed by his counsel that in the sentencing stage of an aggravated murder trial tried by a three-judge panel a sentence of death requires the unanimity of three judges as compared with the decision of one judge in a jury trial.
On appeal, the Court of Appeals reversed the judgment and sentence of the trial court and remanded the cause for a new trial on the basis that defendant could not have knowingly, intelligently, and voluntarily waived his right to a jury trial where he was misinformed about the number of judges necessary to convict on a three-judge panel.
The cause is now before this court upon the allowance of a motion and cross-motion for leave to appeal.
Mr. John F. Holcomb, prosecuting attorney, and Mr. Daniel G. Eichel, for appellant and cross-appellee.
Messrs, Holbrock, Jonson, Bressler Houser, Mr. Hugh D. Holbrock and Mr. H.J. Bressler, for appellee and cross-appellant.
The first issue confronting this court is whether an accused charged with an offense punishable by death who has waived his right to a trial by jury may be convicted only by a unanimous vote of the three-judge panel. R.C. 2945.06 clearly provides that in a criminal case involving the death penalty tried to a panel of three judges the "* * * judges or a majority of them may decide all questions of fact and law arising upon the trial, and render judgment accordingly."
Although the above portions of R.C. 2945.06 have never been repealed, it is contended that the provisions have been repealed by implication since under the new sentencing procedures set forth in R.C. 2929.03, it is provided that the death sentence may only be imposed by a three-judge panel when it unanimously finds that none of the mitigating circumstances listed in R.C. 2929.04(B) have been established by a preponderance of the evidence. R.C. 2929.03(E). It is reasoned that if a majority of the judges was empowered to enter a verdict in the guilt determining phase of the trial, then presumably, in this situation, there would be no need for a mitigation hearing, since the dissenting judge would prevent a unanimous finding with respect to the absence of any of the mitigating circumstances. If it happened, upon conducting a mitigation hearing in such a situation, that the three-judge panel were to agree unanimously that none of the mitigating circumstances existed by a preponderance of the evidence, a totally unacceptable situation would result.
In support of the contention that R.C. 2945.06 has been repealed by implication is the committee comment to R.C. 2929.03 reflecting the belief that no matter whether the capital case is tried to a twelve-member jury or a three-judge panel, the verdict must be unanimous.
Repeals by implication are disfavored in the law. State, ex rel. Toerner, v. Common Pleas Court (1971), 28 Ohio St.2d 213, 217; Cincinnati v. Thomas Soft Ice Cream (1977), 52 Ohio St.2d 76, 79. Only where the provisions of the two statutes are irreconcilable by any means of interpretation ( In re Hesse, 93 Ohio St. 230, 234) or are so repugnant to or contradictory with each other as to evidence an intent on the part of the General Assembly to change the statutory law will this court conclude that the earlier statute has been superseded by the later statute, and therefore of no force and effect. Goff v. Gates (1912), 87 Ohio St. 142; Henrich v. Hoffman (1947), 148 Ohio St. 23, 26.
For example, in State v. Miller (1977), 49 Ohio St.2d 198, at 204, this court was confronted with the issue of whether that portion of R.C. 2945.06 granting the court the power to reduce punishments for capital offenses to life imprisonment was still valid in light of the newly enacted sentencing provisions of R.C. 2929.03 and 2929.04. We held that the former provision, although not formally repealed, was superseded. Clearly, the provision granting to the court the power of extending mercy in the sentencing phase of an aggravated murder trial was in direct conflict with newly established sentencing procedures.
However, those portions of R.C. 2945.06 under consideration in this cause are not in direct conflict with any of the newly-enacted provisions of the Ohio Criminal Code (Am. Sub. H.B. No. 511, 134 Ohio Laws 1866). Clearly, R.C. 2929.03(E), requiring unanimity of the panel of three judges in imposing the death sentence, and R.C. 2945.06, allowing a majority of the panel to render a guilty verdict, deal with separate phases of the aggravated murder trial.
Nor is this court convinced that in some way R.C. 2945.06 and 2929.03 are so repugnant to or inconsistent with each other as to evidence an intent on the part of the General Assembly to repeal the former section, R.C. 2945.06.
An additional consideration convinces this court that the General Assembly never intended that the requirements of unanimity of the three-judge panel under R.C. 2929.03(E) supersede the provisions of R.C. 2945.06 relating to the prescribed number of votes necessary to convict.
The power to hear and try criminal cases in which the accused has waived his right to a jury trial is specifically granted judges under R.C. 2945.06. State v. Smith (1931), 123 Ohio St. 237, 241 (decided under former G.C. 13442-5). Under this section, any judge of the court may hear the case so long as it does not involve an offense punishable by death. If an offense is punishable by death, then only a three-judge panel, composed of specifically designated members of the court, may hear the case and render a verdict upon a majority vote of its members. Clearly, these jurisdictional provisions have not been superseded by subsequent statutes having nothing to do with the authority of judges to try criminal cases without a jury.
Finally, the court is aware of language found in State v. Bell (1976), 48 Ohio St.2d 270, 276, indicating that in a case tried to a three-judge panel, the defendant need only convince one of the three judges "of the absence of evidence of guilt beyond a reasonable doubt." However, this statement did not constitute a holding in the case, but rather served as part of an analogy to support the proposition that a defendant under R.C. 2929.03(C)(1)(2) and (E) is not coerced or compelled in waiving his right to a jury trial. Our holding in this cause in no way weakens the analogy made in Bell, supra.
This court, having determined that the three-judge panel may render a guilty verdict in an aggravated murder trial by a majority vote of its members, is confronted with the issue of whether application of majority rule in the first phase of an aggravated murder trial is in some way constitutionally defective.
In State v. Robbins (1964), 176 Ohio St. 362, this court was presented with a similar issue in upholding the constitutionality of former R.C. 2945.07 (repealed under the new Ohio Criminal Code). That section provided that in felony cases other than capital cases, an accused could waive his right to a trial by jury and file a request with the court to be tried before a three-judge panel, and further provided that if the request were granted, a majority of the panel could determine the guilt or innocence of the accused.
Although Robbins, supra, involved a non-capital felony case tried to a three-judge panel under former R.C. 2945.07, the court finds the reasons given in that case for upholding the constitutionality of less-than-unanimous verdicts by a three-judge panel applicable in this cause.
As noted in Robbins, supra, at pages 363-364, a defendant in a criminal case may waive his constitutional right to a jury trial or to a jury of 12. If a defendant may waive this right, he may also waive his right to have a unanimous verdict. The right to a unanimous verdict attaches to the right of a jury trial, and as the latter may be waived, so may the former.
The court, as in Robbins, finds nothing inherently unlawful in permitting a three-judge panel to render a verdict based on a majority vote of its members. Requiring less than a unanimous verdict in a non-jury trial in no way lessens the prosecution's burden of proving the accused guilty of the charge beyond a reasonable doubt. Robbins, supra, at pages 364-365. See, also, Johnson v. Louisiana (1972), 406 U.S. 356, 360-362. Furthermore, the requirement of unanimity of the triers of fact in a criminal trial has historically been associated with a jury trial and not a trial before the court. Patton v. United States (1930), 281 U.S. 276, 288; Apodaca v. Oregon (1972), 406 U.S. 404. In short, nowhere can this court find support for the proposition that unanimity of the three-judge panel is constitutionally mandated where an accused has waived his right to a jury trial in a capital case.
The court concludes, therefore, that the provision of R.C. 2945.06 empowering a majority of the three-judge panel to render a guilty verdict in a capital case is constitutional.
The final issue confronting this court is whether the accused knowingly, intelligently and voluntarily waived his right to a jury trial under Crim. R. 23. As noted in Patton, supra, at page 312, trial by jury is the normal, if not preferable, mode of disposing of issues of fact in criminal cases and the right must be jealously preserved. See Estrada v. United States (C.A. 7, 1972), 457 F.2d 255. It "reflect[s] a profound judgment about the way in which law should be enforced and justice administered." Duncan v. Louisiana (1968), 391 U.S. 145, 155. Therefore, the court must insure that the accused's decision to waive such right is made with a sufficient awareness of the relevant circumstances and likely consequences of his waiver. Brady v. United States (1970), 397 U.S. 742, 748; State v. Sharp (Mo. 1976), 533 S.W.2d 601; State v. McKay (1977), 280 Md. 558, 375 A.2d 228. Whether or not there is a valid waiver depends on the unique circumstances of each case. Adams v. United States (1942), 317 U.S. 269, 278.
In the instant cause, Ruppert was misinformed that only a unanimous verdict of a three-judge panel could convict him of the offenses if he were to waive his right to a jury trial. Clearly, the defendant was not informed of an important consequence of his decision to waive a jury trial. As observed previously, by waiving his right to a jury trial, Ruppert not only was foregoing the right to be tried before a panel of 12 jurors, but also was waiving his right to a unanimous verdict. Irrespective of whether other important tactical considerations entered into his decision to waive a jury trial, Ruppert could not have knowingly, voluntarily and intelligently waived this right where he was misinformed as to the consequences of his decision in being tried before the court.
In conclusion, because this court finds that under R.C. 2945.06 only two of the three judges need concur in determining the guilt or innocence of the accused in an aggravated murder trial tried before the court, and because Ruppert was misinformed of this important consequence resulting from his jury waiver, the judgment of the Court of Appeals reversing the conviction and sentence of Ruppert and remanding the cause for new trial is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, STEPHENSON, P. BROWN and LOCHER, JJ., concur.
CELEBREZZE, J., concurs in the judgment.
STEPHENSON, J., of the Fourth Appellate District, sitting for W. BROWN, J.