Case Information
*1
[Cite as
State v. Hamilton
,
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY Stаte of Ohio, :
:
Plaintiff-Appellee, :
: Case No. 09CA3330 v. :
: DECISION AND David Hamilton, Jr., : JUDGMENT ENTRY :
Defendant-Appellant. : File-stamped date: 6-02-11 ________________________________________________________________
APPEARANCES: Timothy Young, Ohio State Public Defender, and Katherine A. Szudy, Ohio State Assistant Public Defender, Columbus, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, Portsmouth, Ohio, for Appellee. ________________________________________________________________
Kline, J.: David Hamilton, Jr. (hereinafter “Hamilton”) appeals the judgment of the Scioto
County Court of Common Pleas, which convicted him of aggravated murder, murder, aggravated burglary, felonious assault, tampering with evidence, and violation of a protection order. Hamilton contends that the trial court abused its discretion when it refused to instruct the jury on a charge of voluntary manslaughter. Because the evidence did not support a voluntary manslaughter instruction, we disagree.
I. Hamilton killed Jonathan Jackson (hereinafter “Jackson”) in the early morning
hours of February 21, 2009. Jackson’s death represents the tragic conclusion of the tumultuous relationship between Hamilton and Stephanie Crump (hereinafter “Crump”). Hamilton and Crump had been in an on-again-off-again relationship for seven years. During that time, Hamilton and Crump had three children. Sadly, one child passed away. Hamilton and Crump’s relationship was marked by jealousy and violence.
Hamilton had been violent with Crump on more than one occasion, and Crump had obtained two protection оrders against Hamilton over the course of the relationship. Crump obtained the most recent protection order in February 2008. Although the protection order commanded Hamilton not to have contact with Crump, the two appear to have reconciled at some point during the year. Crump testified that Hamilton moved into her apartment in November 2008, but he had moved out just after Christmas that year. At the time of the incident, Hаmilton was living with his father, and Crump testified that Hamilton did not have a key to Crump’s apartment. On February 20, 2009, Hamilton had just received his income tax refund of about
$2,000. Hamilton and Crump were at Hamilton’s residence early in the evening. They apparently made plans to go out that night, so Hamilton arranged for a babysitter. Crump then left Hamilton’s residence to go to her apartment to shower. Hamilton expected her to return. Instead, Crump decided to go to her neighbor Shauna Williams’ (hereinafter “Williams”) apartment. Jackson and Zachary Fenimore (hereinafter “Fenimore”) were also at Williams’ apartment. When Crump did not return, Hamilton began calling her. Between 8:40 p.m. and
midnight, Hamilton had called Crump twelve times. And between midnight and 1:00 a.m., Hamilton had called Crump fourteen more times. Hamilton also sent Crump several text messages. Crump largely ignored Hamilton’s attempts to contact her, except for the occasional curt response to Hamilton’s text messages. While he had been trying to contact Crump, Hamilton received a ride to a local bar. He drank alcohol at the bar until around midnight, when he called a cab. The cab dropped Hamilton off near Crump’s apartment around 12:38 a.m.
{¶6} Hamilton claimed that he had to use the restroom, so he knocked on Crump’s front door. No one аnswered, and the door was locked. Hamilton next tried the back door, which was also locked. He then entered Crump’s apartment through the kitchen window. After entering the apartment, Hamilton went upstairs and vomited in Crump’s restroom. He then proceeded back down to the kitchen to get something to eat out of the refrigerator.
{¶7} Meanwhile, back at Williams’ apartment, Crump, Williams, Fenimore, and Jackson were “hanging out,” which involved listening to music, playing video games, and smoking marijuana. Williams did not have any beer, but Crump had some at her apartment. The group debated who would go over to Crump’s apartment to get the beer from her refrigerator. Eventually, Jackson volunteered to go, and he took Crump’s keys.
{¶8} Hamilton was standing by Crump’s refrigerator when Jackson unlocked Crump’s door and let himself into the apartment. On direct examination, Hamilton testified as follоws: “A. I opened the refrigerator up and I heard somebody open the front door.
(Witness crying) This guy had walked in that I’ve never seen before in my life, and I asked him, * * * ‘Who are you?’ I said ‘Where is Stephanie at?’ “Q. Who was this guy? “A. At that point I didn’t know who this guy was. “* * *
“A. After I asked him who he was and where Stephanie was, he told me I believe not to worry about it and he come over there to get some beer. And I told him, I was like ‘I don’t know who you are so you’re not going to gеt nothing.’ I said – I said, I asked him to leave.
“Q. You use the language that was used.
“A. I told him to fucking leave because I didn’t know who he was.
“Q. What’d he say?
“A. He said, he told me that he wasn’t leaving and he grabbed a hold of me. “Q. Now where are you at this time?
“A. Right here at the fridge. * * *
“Q. * * * What happened when he got a hold of you?
“A. After he grabbed hold of me he took me and he threw me up against the counter right here. (Witness referring to diagram)
“* * *
A. Once he threw me up against the counter I started heading this way. He comes and he hits me in the side of my face. (Witness crying) “* * *
“A. I tried to go to the back door to get away from him.
“* * *
“Q. What happened next? Tell these people.
“A. He grabs - - he grabs a hоld of me again and he’s just throwing me around. I get threw back up against the refrigerator, and at this point I don’t know who this person is, and I don’t know why he’s even trying to fight with me. I’m pretty scared. I remember grabbing a knife.
“* * *
“Q. What’d you do with the knife once you picked it up from the counter? “A. I headed to the front room. It was in my hand and I started going to the front room.
“Q. Did you show the knife to this person?
“A. Yes, I did.
“Q. And what did he do?
“A. He just seemed like it didn’t bother him. * * *
“Q. Did he back off?
“A. No, he did not.
“Q. What’d you do then?
“A. I went into the front room and he grabbed a hold of me again.
“* * *
“Q. What happened in the living room?
“A. After he tried to pull me back I just kept trying to go for the front door, and then he just kind of grabs a hold of me and I fall right there by the – by the stair steps. “Q. You still got the knife in your hand?
“A. Yes.
“Q. Has there been anybody cut yet?
“A. No. And I fall right there at the steps. When I fall, he’s – he falls on top of me and –
“Q. There’s been a fight, and you’re saying that he had a hold of you? Are you fighting?
“A. I’m not fighting back with him at this point, no.
“Q. Are you two fighting?
“A. Yes. Fighting – I’m not fighting with him. He’s still * * * coming at me. “Q. Are you outside the apartment yet?
“A. No.
“Q. What happened inside the apartment?
“A. After I fall down, he hits me in the back of my head two times.
“* * *
“A. He hits me in the back of the head twice. He said ‘I’ll fucking kill you.’ (Witness crying)
“Q. He said that to you?
“A. Yes, he did. He puts his аrms around my neck and he’s just standing there and choking me; and I can’t breathe and I’m, I’m really scared. (Witness crying) And I just want to get this guy off me so I take the knife and started stabbing him.
“Q. How were you stabbing him?
“A. I just stabbed him. He had a hold of me. I don’t know, I just stabbed him on this side. It didn’t last very long after that. I just – I just remember trying to get him off of me. And I believe he fought a little bit after – after I had stabbed him. We had fought a little bit and I stabbed him a few more times. I’m not sure how many times I stabbed him. (Witness crying)[.]” Tr. 950-956.
{¶61} Hamilton then testified that, at some point, Jаckson said, “Dude, get off me[,]” and that Jackson left Crump’s apartment followed almost immediately by Hamilton. Id. at 956. Hamilton also testified that he (i.e., Hamilton) weighed “140, 150 maybe[,]” and Hamilton noted that earlier testimony indicated that Jackson weighed 198 pounds. Id. at 960. Hamilton testified that Jackson was “[r]eally, really strong.” Id. And when Jackson had Hamilton by the neck, Hamilton testified that he “couldn’t breathe.” Id. Hamilton testified that he did not stab Jackson outside Crump’s аpartment. According to Hamilton, after the two left the apartment, Hamilton ran away. Hamilton threw the knife in a ditch, and he later passed out and slept outside. Eventually, Hamilton turned himself in to the police. Fenimore, however, had a different version of what happened just after Jackson
and Hamilton left Crump’s apartment. According to Fenimore, about three or four minutes after Jackson left Williams’ apartment, Fenimore saw Jackson running from Crump’s apartment “with blood all over him and stuff.” Id. at 431. Fenimore testified that he saw “David [Hamilton] following, running after him.” Id. Fenimore also testified that Jackson was yelling “Stop” while Hamilton chased Jackson with a knife. According to Fenimore, “it was hard for [Jackson] to run[,]” and eventually, Jackson stopped at a car and Hamilton “just started stabbing [Jackson] some more.” Id. at 433-434. Fenimore then testified that at that point, “I [i.e., Fenimore] rаn outside * * *, I yelled ‘Stop.’ I was like ‘Stop, stop.’ And then [Hamilton] took off running or whatever.” Id. at 434. The paramedics arrived shortly after the incident between Hamilton and Jackson,
but Jackson had already passed away.
{¶65} The case was tried to a jury. Hamilton requested that the trial court issue an instruction on voluntary manslaughter. The trial court, however, denied the request. The trial court determined that the evidence supported a self-defense instruction, but not a voluntary manslaughtеr instruction.
{¶66} The jury found Hamilton “not guilty of Count 1: Aggravated Murder, in violation of [R.C.] 2903.01(A)[;] * * * guilty of Count 2: Aggravated Murder, in violation of [R.C.] 2903.01(B)[;] * * * guilty of Count 3: Murder, in violation of [R.C.] 2903.02(B)[;] * * * guilty of Count 4: Aggravated Burglary, in violation of [R.C.] 2911.11(A)(1)[;] * * * guilty of Count 5: Felonious Assault, in violation of [R.C.] 2903.11(A)(2) / (D)(1)[;] * * * guilty of Count 6: Tampering with Evidence, in violation of [R.C.] 2921.12(A)(1)[; and] * * * guilty of Count 7: Violating a Protection Order, in violation of [R.C.] 2919.27(A)(1).” November 3, 2009 Judgment Entry. Hamilton appeals and asserts the following assignment of error: “The trial court
abused its discretion and deprived Mr. Hamilton of his right to due process under the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution by denying Mr. Hamilton’s request that the jury receive a voluntary- manslaughter instruction.”
II. In his sole assignment of error, Hamilton contends that the trial court erred when
it refused to give the jury an instruction on voluntary manslaughter. “Generally, a trial court has broad discretion in deciding how to fashion jury
instructions. A trial court must not, however, fail to ‘fully аnd completely give the jury all
instructions which are relevant and necessary for the jury to weigh the evidence and
discharge its duty as the fact finder.’ State v. Comen (1990),
person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another * * *.” “Before giving a jury instruction on voluntary manslaughter in а murder case, the
trial judge must determine whether evidence of reasonably sufficient provocation
occasioned by the victim has been presented to warrant such an instruction.” State v.
Shane (1992),
whether this actor, in this particular case, actually was under the influence of sudden
passion or in a sudden fit of rage. It is only at that point that the ‘* * * emotional and
mental state of the defendant and the conditions and circumstances that surrounded
him at the time * * *’ must be considеred.” Shane at 634, quoting State v. Deem (1988),
defense, i.e. , that the defendant feared for his own and other’s personal safety, does not
constitute sudden passion or a fit of rage as contemplated by the voluntary
manslaughter statute.” State v. Harris (1998),
satisfy the subjective prong of the voluntary-manslaughter test. There was insufficient evidence that Hamilton actually was under the influence of sudden passion or in a sudden fit of rage. Hamilton testified at length that he killed Jackson out of fear for his own safety. Hamilton claimed that he acted in self-defense, not under the influence of sudden
passion or in a sudden fit of rage. Hamilton testified that Jackson was the initial aggressor. Hamilton testified that Jackson threw him (i.e., Hamilton) against the refrigerator. Then, after Hamilton attempted to get away, Hamilton testified: “[Jackson] grabs hold of me again and he’s just throwing me arоund. I get threw back up against the refrigerator, and at this point I don’t know who this person is, and I don’t know why he’s even trying to fight with me. I’m pretty scared . I remember grabbing a knife.” Tr. at 952-53 (emphasis added).
Hamilton testified that he showed Jackson the knife, but it “just seemed like it didn’t bother [Jackson.]” Id. at 954. Hamilton then testified that he tried to make his way to the front door, but Jackson pulled him back. Hamilton testified: “I’m not fighting with him. He’s still * * * coming at me.” Id. at 955.
Hamilton testified that Jackson was choking him when Hamilton started stabbing Jackson. And Hamilton claimed that he (i.e., Hamilton) was really scared when he started stabbing Jackson: “[Jackson] puts his arms around my neck and he’s just standing there and choking me; and I can’t breathe and I’m, I’m really scared . * * * And I just want to get this guy off me so I take the knife and started stabbing him.” Id. at 955- 56 (emphasis added). Hamilton also testified that, when the stabbing began, “I started to panic. I couldn’t breathe. I just, I thought I was going to die.” Id. at 1027. Additionally, on cross-examination, Hamilton testified that he was not angry when the confrontation with Jackson began:
“Q. Now this guy comes in [to Crump’s apartment] and you’re telling him to leave.”
“A. Yes.
“Q. And what is he telling you?
“A. I just know that he was there to get the beer. He said something about getting some beer.
“Q. And he’s not leaving.
“A. He’s not leaving.
“Q. Did it make you angry?
“A. No.
{¶88} “Q. No?
{¶89} “A. No.” Tr. at 1009. Thus, Hamilton repeatedly testified that he was afraid of Jackson. And Hamilton
specifically stated that he was not angry when he confronted Jackson. The evidence before the trial court showed that neither rage nor passion motivated the killing. As the trial court properly determined, the evidence supported an instruction on self-defense, not voluntary manslaughter. Hamilton argues that, although he testified that he was scared when the
confrontation began, he did not testify that he remained scared. As evidence that Hamilton acted out of rage, Hamilton points to Fenimore’s testimony that Hamilton chased Jackson down the street and stabbed Jackson several more times before Hamilton ran off. [1] Hamilton notes that Dr. Susan Allen, the forensic pathologist who performed the autopsy on Jackson, testified that Jackson sustained eleven stab wounds. Hamilton also alludes to the on-again-off-again and jealous nature of Hamilton’s relationship with Crump to support the argument that Hamilton acted out of rage when he confronted Jackson in Crump’s apartment. This is not sufficient evidence to warrant a voluntary manslaughter instruction.
While it may be “some evidence,” at best, of rage or passion, the Supreme Court of
Ohio has cautioned that “some evidence” supporting a voluntary manslaughter
instruction does not mean that a voluntary manslaughter instruction must be given. See
Shane at 633 (“To require an instruction to be given to the jury every time ‘some
evidence,’ hоwever minute, is presented going to a lesser included (or inferior-degree)
offense would mean that no trial judge could ever refuse to give an instruction on a
lesser included (or inferior-degree) offense.”); see, also, State v. Young (Sep. 20, 1999),
Belmont App. No. 96-BA-34; State v. Collins (1994),
premeditated murder, the trial court’s decision not to give a voluntary-manslаughter instruction prejudiced the outcome of Mr. Hamilton’s trial.” Appellant’s Brief at 29. Hamilton apparently argues that the acquittal on the premeditated murder count demonstrates that, had the trial court given a voluntary manslaughter instruction, the jury would have convicted Hamilton of voluntary manslaughter rather than murder. We disagree. “Even though voluntary manslaughter is not a lesser-included offense of murder,
the test for whether a trial court should give a jury an instruction on voluntary
manslaughter when a defendant is charged with murder is the same test applied when a
defendant seeks an instruction on a lesser-included offense.” Levett at ¶24, citing
Shane at 632. “A trial court is required to instruct the jury on a lesser-included offense
‘only where the evidence presented at trial would reasonably support both an acquittal
on the crime charged and a conviction upon the lesser-inсluded offense.’” Levett at ¶25
quoting State v. Thomas (1988),
2903.02(B) without the elements necessary for voluntary manslaughter present (i.e., provocation by the victim and uncontrollable rage by the defendant). Thus, it does not follow that the acquittal on premeditated murder demonstrates that, had the jury been instructed on voluntary manslaughter, the jury would have convicted Hamilton of voluntary manslaughter, instead of the other counts of murder. Additionally, the lesser- included-offense test was not met because the evidence did not support a conviction for voluntary manslaughter. As detailed above, Hamilton did not satisfy the subjective prong of the voluntary-manslaughter test. Thus, the trial court did not abuse its discretion when it declined to give a jury
instruction on voluntary manslaughter. Accordingly, we overrule Hamilton’s sole assignment of error.
III. In conclusion, having overruled Hamilton’s sole assignment of error, we affirm
the judgment of the trial court.
JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
A сertified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, J. and McFarland, J.: Concur in Judgment and Opinion. For the Court
BY:_____________________________ Roger L. Kline, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
Notes
[1] Hamilton testified that he did not stab Jackson outside of Crump’s apartment, and Hamilton acknowledged that his testimony was different from Fenimore’s regarding the events outside Crump’s apartment.