State v. Vails

¶1The initial question in this appeal regards the excusing of Milton Thomas as a prospective juror. "While defendant contends that Thomas was excused because he was somewhat opposed to capital punishment and would probably recommend mercy, the record fails to support defendant’s argument. The record shows intensive questioning of Thomas by the state, defense counsel, and the court. The questioning shows diametrically opposite answers by Thomas depending upon which person was asking the questions.

¶2Defendant properly objected to the state’s challenge for cause under R. C. 2945.25(C), which excuses a juror when “his opinions preclude him from finding the accused guilty of an offense punishable with death.” See State v. Duling, 21 Ohio St. 2d 13. The court finally overruled the state’s challenge for cause under R. C. 2945.25(C).

¶3*105The trial judge did excuse Thomas for cause under E. C. 2945.25(B), because he was not satisfied that Thomas could render an impartial verdict on the evidence on account of the prospective juror’s contradictory answers to questions concerning preconceived opinions.1 E. C. 2945.25(C) requires that where a juror has a preconceived opinion the court must be satisfied that the juror could render an impartial verdict on the evidence or else the court may excuse the juror for cause. See, also, Cooper v. State, 16 Ohio St. 328, paragraph one of the syllabus. The trial judge exercised his sound legal discretion and did not commit reversible error. See Palmer v. State, 42 Ohio St. 596. Since the exclusion of Thomas was proper under R. C. 2945.25 (B), supra, the cases emanating from Witherspoon v. Illinois, 20 L. Ed. 2d 776, are inapplicable.

¶4The record fails to show any abuse of discretion in admitting rebuttal testimony. Bather it shows that the questioned testimony rebutted earlier testimony of the defend*106ant. Since we do not find the required patent abuse of discretion in admitting this testimony, the defendant’s objection is not well taken. See Cities Service Oil Co. v. Burkett, 176 Ohio St. 449.

¶5Evidence was presented which tended to show premeditated and deliberate malice on the part of the defendant. There was also evidence to the contrary. The conflicting testimony was sufficient evidence to both warrant submission of the issue to the jury and to support the verdict entered by the jury. Therefore, the trial court did not err in allowing the jury to decide whether the defendant acted with deliberate and premeditated malice. See State v. Stewart, 176 Ohio St. 156, 160.

¶6The judgment of the Court of Appeals is affirmed.

¶7Judgment affirmed.