Summary
In State v. Leigh (1972), 31 Ohio St.2d 97, we dutifully followed Furman when we ordered a sentence reduction from death to life imprisonment.
Summary of this case from Vargas v. MetzgerOpinion
No. 71-578
Decided July 19, 1972.
Criminal procedure — First degree murder — Punishment — Death penalty — Unconstitutional, when — Reduction of penalty.
APPEAL from the Court of Appeals for Hamilton County.
On September 24, 1969, a robbery of the Cabinet-Supreme Savings Loan Association, located in Delhi Township, Hamilton County, occurred. During the robbery, the lone woman teller and three female customers were shot and killed.
On September 28, 1969, John Leigh, defendant herein, and Watterson Johnson, a codefendant, were arrested in Arizona. At that time, the defendant provided a statement to an FBI special agent, in which he confessed that he had fired all the shots. He also provided a description of how the shooting occurred and what guns were used. The following day, the defendant repeated his confession to a Cincinnati police officer. Both statements were introduced in evidence at the trial.
Raymond Kassow, another codefendant who was arrested in Cincinnati on the day of the robbery, had led the police to three guns which met the specific descriptions provided by the defendant in his statement.
The prosecutor tried the case on the theory that the defendant was "the trigger man," and had shot and killed all four women by firing a .25-caliber automatic until it jammed, then firing a .22-caliber revolver until all four women quit moving. This theory corresponds to the statements provided to the police by the defendant.
At trial, upon one of four counts of first degree murder, the defendant testified that he had been at the Cabinet-Supreme Bank on September 24th; that he met the two other persons involved in the robbery that morning; that he had gone to Delhi with them and waited for the manager of the bank to leave; and that when the manager left, they drove to the bank. Thus, the defendant's participation in the crime is not disputed. However, the defendant refuted his prior statements insofar as they related to his active participation in the shooting. He stated that he remained in the car, and that Kassow did all the shooting.
After the case had been submitted to the jury, defense counsel learned that expert testimony had been available to the prosecutor's office prior to this trial. This evidence indicated that Kassow had fired more than one shot from some gun or guns on the day of the robbery. Such evidence had not been disclosed to this defendant.
The jury returned a verdict of guilty, without a recommendation of mercy, and judgment was entered upon the verdict. No motion for a new trial was filed by the defendant, nor was a request made to have the jury advised of this additional evidence.
The Court of Appeals affirmed the judgment of conviction.
The cause is now before this court upon appeal as a matter of right.
Mr. Simon L. Leis, Jr., prosecuting attorney, and Mr. Leonard Kirschner, for appellee.
Mr. John J. Getgey, Jr., and Mr. Jack G. Rubenstein, for appellant.
We modify the judgment of the Court of Appeals.
Appellant postulates his appeal upon (1) claiming that the suppression of evidence by the prosecution relating to ballistics tests would have been assistive to the jury in the determination of the penalty and (2) the infliction of the death penalty constitutes cruel and unusual punishment in violation of the Federal and State Constitutions. There being no denial by the defendant as to participation in the robbery, and no question raised as to the finding of guilt, this appeal is limited to the question of the degree of the penalty.
The United States Supreme Court, in Furman v. Georgia (decided June 29, 1972), 33 L. Ed. 2d 346, has held that the carrying out of a death penalty imposed at the discretion of the trier of the facts constitutes "cruel and unusual punishment" in violation of the Eighth and Fourteenth Amendments to the United States Constitution.
Under that holding, which we are required to follow, the infliction of any death penalty under the existing law of Ohio is now unconstitutional (with the possible exception of the taking of the life or attempting to take the life of the President, Vice-President, or a person in the line of succession to the presidency [R.C. 2901.09], or of the Governor or Lieutenant Governor [R.C. 2901.10], which statutes purport to impose a mandatory penalty of death).
Although the question of defendant's guilt is not before us, we have reviewed the record of the proceedings in this case and find ample evidence to support the jury's verdict of guilty of murder in the first degree.
Therefore, except as to the death sentence, the judgment of the Court of Appeals is affirmed. With regard to the death sentence, the judgment of the Court of Appeals must be modified and the sentence is reduced to life imprisonment, as prescribed in R.C. 2901.01.
Judgment accordingly.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN and LEACH, JJ., concur.
BROWN, J., not participating.
I concur except as to the parenthesized language contained in the third from last paragraph of the per curiam opinion.