34198 | Ohio Ct. App. | Apr 8, 1976
The defendant-appellant, Richard Jenkins, appeals from the trial court's judgment following his conviction by jury on one count of aggravated murder, R. C.
On July 14, 1974 at approximately 10:30 p. m. a shooting incident occurred on the west side of Cleveland that resulted in the death of Patrick Kosman. The prosecution presented evidence from nine eyewitnesses who testified to what occurred that night. The substance of their testimony was as follows: The defendant was standing in the street next to his parked car talking to some friends when Mr. Kosman, the victim, drove by. Kosman was intoxicated and told the defendant, in effect, to get out of the street. The defendant responded by telling Kosman to pull his car over, which he did. The defendant then walked to his car and took a "pump" shotgun out of the trunk. He walked to the front of his car and fired one shot into the trunk of Kosman's car. The evidence is in conflict as to whether Kosman was in the car or just getting out when the first shot was fired. Kosman moved toward the defendant (who was about 25 feet away) and was shot, spun around, and was shot again. The defendant then got into his car and drove off.
The defendant's uncorroborated testimony was that Kosman had a gun and that he had gotten out of his car and moved menacingly toward him. The defendant testified that he had fired a warning shot into the parked car and that he then shot Kosman as Kosman went for his gun. The defendant claimed that he acted in self-defense.
The trial court charged the jury on aggravated murder and self-defense. The jury returned a verdict finding the defendant guilty of aggravated murder.
The appellant assigns six errors as follows:
"1. The judgment of the trial court finding the defendant guilty of aggravated murder is against the mani-weight of the evidence and contrary to law.
"2. The trial court erred in overruling defendant's renewed motion for acquittal at the close of all evidence, in that there was insufficient evidence upon which a reasonable *101 mind might fairly conclude that the defendant was guilty of aggravated murder beyond a reasonable doubt.
"3. The trial court erred in overruling defendant's motion for acquittal at the close of the prosecution's evidence, in that there was insufficient evidence upon which a reasonable mind might fairly conclude that the defendant was guilty of aggravated murder beyond a reasonable doubt, in violation of defendant's constitutional privilege against self-incrimination, and due process of law.
"4. The trial court committed prejudicial error in failing to instruct the jury upon the lesser included offenses of murder and voluntary manslaughter, contrary to law and in denial of due process of law.
"5. The trial court committed prejudicial and reversible error when it instructed the jury upon the issue of self-defense that `if the defendant had reasonable grounds and an honest belief that he was in imminent danger of death and great bodily harm, that the only means of escape from such danger was by killing such assailant * * *' all contrary to law.
"6. The trial court abused its discretion and committed prejudicial error in unduly restricting defendant's cross-examination of prosecution witnesses, through which defendant was endeavoring to establish the bias and prejudice of said witnesses."
The newly amended statute, R. C.
"(A) No person shall purposely, and with prior calculation and design, cause the death of another."
Prior calculation and design sets up a more demanding standard than the old first degree murder standard of "deliberate and premeditated malice."1 Prior calculation *102
and design requires the accused to have killed purposefully after devising a plan or scheme to kill. There must be some kind of studied analysis with its object being the means by which to kill. The kind of momentary deliberation or instantaneous premeditation that was the accepted standard under the old statute, as exemplified by State v. Schaffer (1960),
The trier of fact must look to the context in which the killing occurred to determine whether there was prior calculation and design. Some of the important factors to be examined and considered in deciding whether a homicide was committed with prior calculation and design include: whether the accused knew the victim prior to the crime, as opposed to a random meeting, and if the victim was known to him whether the relationship had been strained; whether thought and preparation were given by the accused to the weapon he used to kill and/or the site on which the homicide was to be committed as compared to no such thought or preparation; and whether the act was drawn out over a period of time as against an almost instantaneous eruption of events. These factors must be considered and weighed together and viewed under the totality of all circumstances of the homicide. When the evidence adduced at trial establishes that the victim was unknown to the accused prior to the crime, and that *103
there was little or no preparation, but rather that the crime was an instantaneous eruption of events, then the trial court shall not charge the jury on aggravated murder. If the evidence adduced at trial is legally insufficient to establish any essential element of the crime charged the trial court shall not charge the jury as to that offense. See, State v. Channer
(1926),
With this in mind, we turn to the facts of the case on appeal.
From the record it is clear that the defendant did not know the victim, that there had been no previous disagreement, and that the meeting was at random.3 There is no evidence to indicate any prior preparation to commit a homicide. The incident was not drawn out but was almost spontaneous. That the defendant went to his car, removed a shotgun, and fired a shot in the trunk of the car and two shots at the victim is not, standing alone, evidence of prior calculation and design. The court therefore was in error in allowing the case to go to the jury on the charge of aggravated murder as the evidence was "* * * insufficient to sustain a conviction of such offense * * *." Criminal Rule 29(A). The evidence produced was sufficient to sustain a finding of guilty to murder, R. C.
Because of the importance in giving proper instructions to the jury and the confusion as to when an instruction on a lesser included offense is required, we reach the merits of the fourth assignment of error. It is true that the defendant in the trial at bar interposed the affirmative defense of self-defense. Nevertheless, we are not precluded by that fact from permitting the jury to consider the lesser included offense of murder. Despite the fact that the prosecutor has so urged, the rule enunciated in State v. Nolton (1969),
In Nolton, the Supreme Court attempted to articulate "a more utilitarian rule" than the general formula that in all cases "where the evidence would support a lesser included offense,"Id. at 134, the jury should be so charged and permitted to return such a verdict. Formulating a new rule, the court said:
"If the evidence adduced on behalf of the defense is such that if accepted by the trier it would constitute a complete defense to all substantive elements of the crime charged, the trier will not be permitted to consider a lesser included offense for the reason that an unreasonable compromise would be invited on the state's evidence." Id. at 135.
This court does not interpret this language to mean *105 that in any case in which an accused asserts an affirmative defense, a trial or appellate court is, for that reason alone, prevented per se from considering the degree of homicidal guilt which the evidence in the record should permit to be submitted to the trier of fact. As to that aspect of the case-in-chief, the burden rests squarely on the prosecution; the court is accordingly compelled to consider whether the state has met its burden of proof, beyond a reasonable doubt, as to every element of the offense charged whether or not the accused interposes anaffirmative defense at trial. The rule is not automatic; its application depends on the state of the record in each case, whether on the evidence the jury could reasonably conclude that the state had proved only the elements of a lesser included offense, and not all of the elements of the principal charge. This must be so because if the bare assertions of an affirmative defense is a waiver of the right of the accused to have submitted to the jury the appropriate offenses which the evidence supports the defendant and the state are denied the right to have the verdict conform to the evidence.
The Nolton language which immediately follows the above quoted verbal formula is instructive; it limits substantially the previously stated Nolton rule:
"On the contrary, if the trier could reasonably find against the state and for the accused upon one or more of the elements of the crime charged and for the state and against the accused on the remaining elements, which by themselves would sustain a conviction upon a lesser included offense, then a charge on thelesser included offense is both warranted and required, not only for the benefit of the state but for the benefit of the accused." Id. at 135. (Emphasis added.)
The facts in Nolton bolster our interpretation of its holding. In that case, intentional shooting was clearly proved by the state. The only question was whether such intentional shooting was justifiable by reason of self-defense. To have permitted the jury to return a verdict on a lesser included offense without intent as one of its elements would have permitted the trier of fact the option to return *106 an unreasonable compromise verdict which the rule was specifically designed to avoid.
Similarly in State v. Fox (1972),
But with respect to the element of prior calculation and design which separates aggravated murder from its lesser incuded offense of murder the jury could reasonably have concluded, once having rejected the affirmative defense of self-defense, either that prior calculation and design had been proved or that it had not. Under such circumstances, the lesser included offense should have been charged to the jury, even though the affirmative defense, if believed by the jury, would have been a complete defense to all the substantive elements of the principal charge.
A modification of the judgment is required. The cause is hereby remanded to the trial court with the instructions that judgment be entered finding defendant-appellant guilty of murder under R. C.
Judgment accordingly.
DAY, P. J., and PARRINO, J., concur.