State v. Duling

CoRRigan-, J. The principal contention of appellant in this appeal is that he was denied his right to a fair trial by — 15 — an impartial jury when veniremen were excused for cause because they were opposed in principle to the death penálty in the absence of a conclusive showing that their opinions precluded them from finding the accused guilty of an offense punishable by death. In other words, appellant claims that the manner of questioning some prospective jurors who were excused for cause due to their opposition to the death penalty did not completely conform to the principles laid down in Witherspoon v. Illinois, supra (391 U. S. 510). An examination of the record reveals that there were instances during the questioning of prospective jurors on the voir dire when the standards set forth in Witherspoon were not literally met, namely, some were excused without categorically stating that they would automatically vote against the imposition of capital punishment, no matter what evidence the trial would reveal. It should be pointed out that our statute (Section 2945.25, Revised Code) contains language which conforms to the requirements of Witherspoon. There is no doubt that the trial judge in this case conscientiously tried to impanel a jury within the framework of our Constitution and statutes which would furnish appellant a trial by an impartial jury as guaranteed by the Sixth Amendment to the Constitution of the United States and Section 10, Article I of the Ohio Constitution. Furthermore, as the court stated in People v. Speck, 41 Ill. 2d 177, 242 N. E. 2d 208: ‘ ‘ The circumstances under which the voir dire examination here was conducted were quite different from those in Witherspoon. In that case the. court noted that the tone was set when the trial judge said early in the voir dire, ‘Let’s get these conscientious objectors out of the way without wasting any time on them. ’ In this case there was no hint of a desire for haste or for a perfunctory examination to see how many jurors could be disqualified on the statutory basis alone.” At the time of the voir dire in the instant ease, Section 2945.25, Revised Code, provided that a person called as a juror could be challenged for cause in a capital case if “his — 16 — opinions preclude him from finding the accused guilty of an offense punishable with death.” In State v. Pruett, 18 Ohio St. 2d 167, 169, we noted that: “Unlike the Illinois statute, our statute does not authorize a challenge for cause of anyone merely because he says he ‘has conscientious scruples against capital punishment, or that he is opposed to the same.’ Our statute has, since at least 1869 (66 Ohio Laws 287, 307), apparently agreed with the conclusion stated in the opinion in With-erspoon, and thus has authorized challenging a juror for cause only where such a juror had opinions which precluded him from voting for a verdict that would result in the death penalty.” Inasmuch as our statute is in conformity with the requirements set forth in Witherspoon, it is apparent that, at the time of the voir dire in this case, appellant could have raised questions which were subsequently decided in With-erspoon. We are of the opinion, as we indicated in Pruett, supra (18 Ohio St. 2d 167), at page 168, footnote 2, that “since the defendant did not raise any question in the Ohio courts about the right so established by Witherspoon, and since that right had long existed under Ohio statutes * * * the defendant’s failure to so raise that question should preclude him from raising it now. See Schmerber v. California (1966), 384 U. S. 757, 765 * * *.” Moreover, because this appeal stems from a postcon-viction remedy proceeding, our holding in State v. Perry, 10 Ohio St. 2d 175, also prevents the raising of the issue by appellant now. Paragraph seven of the syllabus in that case reads: “Constitutional issues cannot be considered in post-conviction proceedings under Section 2953.21 et seg., Revised Code, where they have already been or could have been fully litigated by the prisoner while represented .by counsel, either before his judgment of conviction or on direct appeal from that judgment, and thus have been adjudicated against him.” — 17 — Since the other questions raised by appellant in this appeal were considered, or conld have been considered, in his direct appeal, we deem it necessary only to pass on his contention that the trial conrt erred in overrnling his motion for new trial, filed in January 1968, on the basis of newly discovered evidence. The newly discovered evidence consisted of reports of two state psychiatrists made in 1967 in which they expressed the opinion that appellant could not distinguish right from wrong at the time of commission of the crime. Such evidence is cumulative to former evidence, and it fails to disclose any strong probability that the result would be changed by a new trial, and, therefore is not sufficient evidence to warrant the granting of a new trial. The trial court did not err in overruling the motion. State v. Petro, 148 Ohio St. 505. For the foregoing reasons, the judgment of the Court of Appeals is affirmed. Judgment affirmed. Taft, C. J., Matthias, Schneider and Gbay, JJ., concur. Duncan, J., dissents. Geay, J., of the Fourth Appellate District, sitting for HERBERT, J.