In this cause, we must resolve the questions of whether the trial court committed plain error when it failed to instruct on lesser-included offenses (see Crim. R. 52) and whether the defendant received effective assistance of counsel at the trial level.
The facts surrounding this cause are essentially as follows. Appellee, Richard J. Clayton, became involved in a dispute with his wholesale tropical fish supplier, Carmen Zagaria. Appellee claimed that Zagaria had vandalized his fish store, whereas Zagaria claimed that appellee owed him money. When Zagaria went to the store on the morning of September 30, 1976, with a companion, an argument ensued. Appellee was punched by Zagaria several times and was knocked to the floor twice. Zagaria and his companion left the store and got into their car. Thereupon, appellee armed with a gun proceeded to fire numerous rounds at the car—once from his doorway and several times as he approached the vehicle. Both occupants of the car were injured and as Zagaria’s companion attempted to escape he was shot in the back. A witness who was present at the time of the incident claims to have heard appellee say, before the shooting occurred, “I’ll kill 'em,” or “I’ll shoot ‘em or something you know.”
The record shows that during its deliberations the jury asked the court whether a fit of anger would have any bearing on whether appellee was guilty. The court informed the foreman that the jury had all the law necessary to make its decision. As previously noted, appellee’s trial counsel limited his jury instructions and did not raise a Crim. R. 30 objection. Counsel appears to have been engineering a strategy to obtain his client’s acquittal by limiting the instruction. This strategy proved to be unsuccessful.
I.
In State v. Long (1978),
It suffices to say that plain error is not easily or readily definable and that each case must be considered on its own facts. In the case sub judice, it is evident that trial counsel’s strategy was to seek a total acquittal for his client. In State v. Wolery (1976),
“***this omission was the result of a deliberate, tactical decision of trial counsel.***Appellant and his counsel apparently believed that the admission of the evidence in question would so detract from the credibility of [the] witnesses*** as to render their entire testimony incapable of belief. Appellant cannot claim the protection of Crim. R. 52(B) to negate the effect of this tactical decision.”
This same reasoning applies to the instant cause.
Counsel’s decision to limit the instruction to attempted
II.
In State v. Hester (1976),
Looking at all the circumstances of this case, particularly the fact that defense counsel made a tactical choice not to include an instruction on attempted voluntary manslaughter, we cannot, in retrospect, state that counsel ineffectively assisted his client. Although a tactical error may have been made, we cannot state that substantial justice was not done.
Similar results were obtained in United States v. Denno (C.A. 2,1963),
In Gauze, supra, the defendant was convicted of burglary and assault with a deadly weapon. There was a question as to his sanity. The court, at page 225, stated, “*** [defendant] was not denied due process of law by his attorney’s decision to base the defense on alibi rather than diminished capacity. The defense based on alibi in this case, as***[defendant’s] own counsel recognized and stated on the record, would have an appearance of being inconsistent with a defense based on diminished capacity, and selecting one to the exclusion of the other is a sound trial tactic left to the discretion of counsel. Any error of judgment is neither a denial of due process nor denial of effective assistance of counsel***.”
In Miller, supra, counsel’s failure to interpose a defense of diminished responsibility while claiming self-defense did not
“Nothing is seen more clearly than with hindsight. The most that can be fairly said on this record, however, is that counsel’s decision to delay introducing his evidence of defendant’s mental state until the sanity phase was a debatable trial tactic. Yet as we reminded the bench and bar not long ago, even ‘debatable trial tactics’ do not ‘constitute a deprivation of the effective assistance of counsel.’ * * * When, as here, ‘there is no showing that counsel did not research the facts or the law, or that he was ignorant of a crucial defense’***and counsel makes a tactical choice to withhold certain evidence for a later stage of trial, sound policy reasons persuade us to defer to counsel’s judgment in the matter.”
Although trial counsel’s strategy was questionable, we must defer to his judgment. As we stated in State v. Lytle (1976),
“We deem it misleading to decide an issue of competency by using, as a measuring rod, only those criteria defined as the best of available practices in the defense field.” (Emphasis sic.) As in Lytle, supra, we do not think appellee established that there was a substantial violation of any of defense counsel’s essential duties to his client. Counsel chose a strategy that proved ineffective, but the fact that there was another and better strategy available does not amount to a breach of an essential duty to his client.
For the foregoing reasons, the judgment of the Court of Appeals is reversed.
Judgment reversed.
Notes
Our decision is not affected by State v. Muscatello (1978),