Opinion
No. 70-283
Decided July 7, 1971.
Courts — Trial to three-judge court — Appeal — Cause remanded — One judge of original panel resigned — Successor judge may participate, when — Judicial powers not personal to judge — May be exercised by successor — Common Pleas Court.
1. Where a case has been tried before a three-judge panel and after an appeal the case is remanded to the trial court for a hearing on a motion to inspect (see State v. White, 15 Ohio St.2d 146), a judge appointed as a member of the three-judge panel to replace a judge of the original panel, who had resigned his office, may participate in such further proceedings in the case.
2. The judicial powers of a judge of a Court of Common Pleas are not personal to him and, in a proper case, may be exercised by another judge legally qualified and assigned to assume the duties of a Court of Common Pleas judge.
APPEAL from the Court of Appeals for Cuyahoga County.
Appellant was convicted by a three-judge court on two counts of first degree murder, without a recommendation of mercy. In 1968 in an earlier review of this case, this court ( State v. White, 15 Ohio St.2d 146) ordered the cause remanded to the Court of Common Pleas with the following instructions, at page 158:
"We hold that defense counsel were entitled to inspect, under the procedure hereinabove outlined, the written statements of Dorothy Berts, and that the trial court erred in not allowing such inspection. Paragraph one of the syllabus of State v. Rhoads, supra ( 81 Ohio St. 397), is hereby overruled. Because of the vital nature of her testimony to the state's case, any further light that these statements may shed on the facts and her credibility will indeed be crucial in the final dispostion of this case. We therefore reverse the judgment and remand the cause to the Court of Common Pleas for a hearing on defendant's motion to inspect. At this hearing the court should also grant a request by defense counsel, if one is made, for inspection of the oral statement of Dorothy Berts if the police have a near verbatim account of it. Further, the court should grant defendant's request for an in camera inspection of the written statements of Pat Turner and Johnny Burke. The court may then determine whether any inconsistencies exist between the statements and the testimony.
"Finally, if the court finds that such variations prohibited defendant from receiving a fair trial and denied him due process of law, it should order a new trial. If, on the other hand, the court decides to reaffirm its former judgment, a new judgment should be entered upon the verdict of guilty. Authority for this type of limited reversal, under similar facts, may be found in State v. Richards, 21 Wis.2d 622, 124 N.W.2d 684."
Pursuant to our order, a three-judge trial court proceeded with the hearing, as instructed. Judge August Pryatel, however, replaced Judge Hugh A. Corrigan, who had resigned his office. The replacement was journalized by the following entry:
"On this 13th day of November, 1968 the Honorable Donald F. Lybarger, Chief Justice of the Common Pleas Court of Cuyahoga County, hereby appoints the Honorable August Pryatel, Presiding Judge, Criminal Division of the Common Pleas Court, to replace Hugh A. Corrigan, former Judge of the Court of Common Pleas, having resigned his office, on the three judge panel to preside with further hearings on the Kenneth White case, Common Pleas No. 81166, as ordered by the Ohio Supreme Court in Case No. 41142."
On December 20, 1968, the three-judge panel entered the following order:
"This case came on for hearing on December 10, 1968 upon remand from the Ohio Supreme Court as directed in State versus White, 15 Ohio St.2d 146.
"Prior to the hearing, the court granted request by defense counsel to inspect all available statements by Dorothy Berts, Patricia Turner and John Burke. After examining the record, inspecting the statements and after hearing arguments the court unanimously finds beyond a reasonable doubt, one, that there was some variation between the statements and the testimony; two, that the variation was of the nature that it did not prohibit the defendant from receiving a fair trial or of denying him of due process of law. The court, therefore, unanimously reaffirms the former judgment, finding the defendant guilty of murder in the first degree on both counts of the indictment, and that no mercy be extended."
The Court of Appeals affirmed the judgment of the Court of Common Pleas, and the cause is now before this court on appeal as a matter of right.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Harvey R. Monck, for appellee.
Mr. James R. Willis and Mr. Gerald S. Gold, for appellant.
Appellant objected and now raises the issue as to whether a judge appointed to replace another, who resigned his office, is disqualified to serve, because he was not one of the original three-judge panel.
Although this court has not previously passed on this specific issue, we believe that the applicable principles are clear. Where a case has been tried before a three-judge panel and after an appeal the case is remanded to the trial court for a hearing on a motion to inspect (see State v. White, 15 Ohio St.2d 146), a judge appointed as a member of the three-judge panel to replace a judge of the original panel, who had resigned his office, may participate in such further proceedings in the case
We find, after review of the record of the hearing before the three-judge panel, that the ruling in the court below is correct. The record does not reveal that the inconsistencies or variations between the statements and the evidence denied appellant a fair trial. Moreover, the procedures of the panel in response to its instructions did not deny appellant due process of law.
In our previous decision, we specifically referred to the reversal as a "limited reversal" to determine whether a new trial should be granted. Whereupon, the trial court followed instructions and made a determination. It was not within the scope of this court's remand order that the Court of Common Pleas relitigate other matters as if a new trial had been ordered. The other issues, including constitutional questions which appellant seeks to have reviewed, have previously been decided on appeal and, therefore, are negated by the doctrine of res judicata.
The judgment is affirmed.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, STERN and LEACH, JJ., concur.
REILLY, J., of the Tenth Appellate District, sitting for CORRIGAN, J.