State v. TuckerState v. Tucker
Brian R. Hester, P.O. Box 1324, Hamilton, Ohio 45012, for defendant-appellant
O P I N I O N
RINGLAND, J.
{¶1} Defendant-appellant, Donald Wayne Tucker, appeals from his conviction in the Butler County Court of Common Pleas for the murder of Brian McKenzie. For the reasons outlined below, we affirm.
{¶2} On the morning of October 29, 2009, McKenzie, who had known appellant since 1998, rode his bicycle to appellant‘s nearby Middletown home. Upon McKenzie‘s arrival, appellant, who was busy stripping down old air conditioning units in the backyard in
{¶3} According to appellant‘s testimony, the events leading up to McKenzie‘s death are as follows:
{¶4} After a long day of drinking beer and watching television, McKenzie, who had “got pretty lushed” to the point where he exhibited slurred speech and had difficulty maintaining his balance, suddenly jumped up from the couch and grabbed a knife that was stuck in a dart board hanging above the television set. McKenzie then turned towards appellant, threw his hands in the air, “said this Indian thing,” and exclaimed that he wanted to die. Appellant, who was also “pretty drunk then,” told McKenzie to “go ahead.” Apparently frustrated with appellant‘s response, McKenzie gave appellant “a little smirk” before returning to the couch and placing the knife down on the coffee table in front of him.
{¶5} Appellant, not wanting McKenzie to have access to a knife in his intoxicated state, got up from his chair and made his way towards McKenzie. However, before appellant could get to the knife, McKenzie grabbed it off the coffee table and started acting “like he was in a rage or something.” Believing that he was in danger, appellant reached out and grabbed a “pressure point” on McKenzie‘s neck that allowed him to “wrestle” the knife away with one hand. According to appellant, because he was able to use these defensive maneuvers, he sustained only “a little nick” during the struggle.
{¶6} Once he procured the knife, appellant, “trying to back up to somehow get
{¶7} Upon arriving at the scene, Middletown police discovered McKenzie‘s body lying face down in a pool of blood between the coffee table and the couch with the knife lying across his buttocks. Appellant was then taken into custody while McKenzie was rushed to the hospital where he was pronounced dead. An autopsy report later revealed that McKenzie had been stabbed in the chest four times and had sustained ten additional abraded incised wounds all within a five by five inch area above his heart. According to Dr. Brian Casto, a forensic pathologist with the Montgomery County Coroner‘s Office, any of the four stab wounds would have been fatal.
{¶8} On December 9, 2009, the Butler County Grand Jury returned an indictment charging appellant with one count of murder in violation of
{¶9} On September 30, 2010, after his first trial resulted in a mistrial, the jury returned a verdict finding appellant guilty on both murder charges. Thereafter, upon merging the two offenses, the trial court sentenced appellant to a term of 15 years to life in prison.
{¶10} Appellant now appeals from his conviction, raising four assignments of error for review.
{¶11} Assignment of Error No. 1:
{¶12} “THE TRIAL COURT VIOLATED THE APPELLANT‘S CONSTITUTIONAL FAIR
{¶13} In his first assignment of error, appellant argues that the trial court erred by excluding the testimony of William Reynolds. Reynolds, a neighborhood acquaintance of both McKenzie and appellant, would have testified that McKenzie told Reynolds of his intentions to go to appellant‘s house later that day and kill appellant. In support of this claim, appellant argues that Reynolds’ testimony, although hearsay, was nonetheless admissible pursuant to
{¶14} The admissibility of relevant evidence rests within the sound discretion of the trial court. State v. Jones, Butler App. No. CA2006-11-298, 2008-Ohio-865, ¶10, citing State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus. Absent an abuse of discretion, as well as a showing that the party suffered material prejudice, an appellate court will not disturb a trial court‘s ruling as to the admissibility of evidence. State v. Martin (1985), 19 Ohio St.3d 122, 129. An abuse of discretion implies that the court‘s decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶130. When applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. State v. Wyatt, Butler App. No. CA2010-07-171, 2011-Ohio-3247, ¶7.
{¶15}
{¶16} At trial, mere moments before appellant was to call Reynolds to the stand, the trial court held a sidebar conference during which it determined that Reynolds could not testify as to McKenzie‘s statements indicating his intent to kill appellant. After a thorough review of the record, we find this to be error as Reynolds’ proffered testimony reflects McKenzie‘s then existing state of mind indicating his intent to take a future action admissible pursuant to
{¶17} As this court has stated previously, an accused has “a constitutional guarantee to a trial free from prejudicial error, not necessarily one free of all error.” State v. Swartsell, Butler App. No. CA2002-06-151, 2003-Ohio-4450, ¶31, quoting State v. Brown, 65 Ohio St.3d 483, 485, 1992-Ohio-61. In turn, pursuant to
{¶18} Initially, we note that Reynolds’ testimony indicating McKenzie told him that he
{¶19} That said, regardless of its cumulative nature, even if the trial court had not erroneously excluded Reynolds’ testimony, we find the state provided overwhelming evidence of appellant‘s guilt. Here, the state presented uncontroverted evidence indicating appellant stabbed McKenzie in the chest four times and inflicted ten additional abraded incised wounds all within a five by five inch area above his heart. The state also presented evidence from Jack Byrd, appellant‘s former cellmate, who testified that appellant admitted to stabbing McKenzie multiple times after McKenzie called him a “bitch” and refused to pay back money he was owed. In fact, while denying Byrd‘s claims, appellant even admitted to stabbing McKenzie in self-defense one time before he “blacked out.” The physical evidence, however, simply did not support appellant‘s version of the events leading up to McKenzie‘s death for he did not exhibit any defensive wounds and police did not find any signs of a struggle. In turn, because the state provided overwhelming evidence of appellant‘s guilt, we find any error the trial court committed by excluding Reynolds’ testimony to be harmless. Therefore, appellant‘s first assignment of error is overruled.
{¶20} Assignment of Error No. 2:
{¶21} “QUESTIONS ABOUT APPELLANT‘S SELF-DEFENSE CLAIMS SHOULD HAVE BEEN LEFT TO THE JURY, NOT PRE-DETERMINED BY THE TRIAL COURT WHO
{¶22} In his second assignment of error, appellant argues that the trial court erred by refusing to provide the jury with an instruction on self-defense. We disagree.
{¶23} Jury instructions are matters left to the sound discretion of the trial court. State v. Harry, Butler App. No. CA2008-01-013, 2008-Ohio-6380, ¶35, citing State v. Guster (1981), 66 Ohio St.2d 266, 271. This court, therefore, reviews the trial court‘s decision refusing to provide the jury with a requested jury instruction for an abuse of discretion. State v. Gray, Butler App. No. CA2010-03-064, 2011-Ohio-666, ¶23, citing State v. Wolons (1989), 44 Ohio St.3d 64, 68. As noted above, an abuse of discretion implies that the court‘s decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶130.
{¶24} Under Ohio law, self-defense is an affirmative defense a defendant must prove by a preponderance of the evidence. State v. Smith, Warren App. No. CA2010-05-047, 2011-Ohio-1476, ¶33. To establish self-defense in a case where a defendant used deadly force, such as the case here, “the defendant must prove: (1) he was not at fault in creating the situation giving rise to the affray; (2) he had a bona fide belief he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was the use of deadly force; and (3) he did not violate any duty to retreat or avoid the danger.” Gray at ¶43, citing State v. Robbins (1979), 58 Ohio St.2d 74, paragraph two of the syllabus. If the defendant “fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense.” State v. Jackson (1986), 22 Ohio St.3d 281, 284; State v. Voss, Warren App. No. CA2006-11-132, 2008-Ohio-3889, ¶54.
{¶25} A trial court does not err in failing to instruct the jury on self-defense where the evidence is insufficient to support the instruction. State v. Rice, Butler App. No. CA2003-01-015, 2004-Ohio-697, ¶26, citing State v. Palmer, 80 Ohio St.3d 543, 564, 1997-Ohio-312. In
{¶26} In this case, after a thorough review of the record, we find no error in the trial court‘s decision refusing to provide the jury with an instruction on self-defense. Here, although appellant claims that his only means of escape from McKenzie was to use deadly force, the evidence presented clearly demonstrates otherwise. As appellant testified, when McKenzie would become “loud and * * * angry enough to hurt you,” simply telling him that “you are going to call the police,” a tactic that he had used previously, would diffuse the situation and cause McKenzie to leave. In fact, when the state asked appellant if McKenzie “basically had a button that you could push” to get him to leave by threatening to call the police, appellant testified affirmatively. Appellant, therefore, certainly had other means available to him that could have diffused the situation thereby alleviating the need for the use of deadly force. Rice, 2004-Ohio-697 at ¶28 (finding no error in trial court‘s decision refusing to instruct jury on self-defense where defendant had other means of escape besides stabbing victim in the chest five times). In turn, based on the facts of this case, because appellant could have simply told McKenzie that he was going to call the police in order to get McKenzie to leave, we find no error in the trial court‘s decision refusing to instruct the jury on self-defense. Appellant‘s second assignment of error, therefore, is overruled.
{¶27} Assignment of Error No. 3:
{¶29} In his third assignment of error, appellant argues that the trial court erred by refusing to instruct the jury on involuntary manslaughter as a lesser-included offense of felony murder in violation of
{¶30} As noted above, jury instructions are matters left to the sound discretion of the trial court. Harry, 2008-Ohio-6380 at ¶35, citing Guster, 66 Ohio St.2d at 271. This court, therefore, reviews the trial court‘s decision refusing to provide the jury with a requested jury instruction for an abuse of discretion. Gray, 2011-Ohio-666 at ¶23, citing Wolons, 44 Ohio St.3d at 68.
{¶31} A jury instruction on a lesser-included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction on the lesser-included offense. State v. Carroll, Clermont App. Nos. CA2007-02-030, CA2007-03-041, 2007-Ohio-7075, ¶136, citing State v. Carter, 89 Ohio St.3d 593, 600, 2000-Ohio-172. However, an instruction is not warranted simply because the defendant offers “some evidence” to establish the lesser-included offense. Gray, citing State v. Shane (1992), 63 Ohio St.3d 630, 632-633. Instead, there must be “sufficient evidence” to “allow a jury to reasonably reject the greater offense and find the defendant guilty on a lesser included (or inferior-degree) offense.” (Emphasis sic.) State v. Anderson, Butler App. No. CA2005-06-156, 2006-Ohio-2714, ¶11, quoting Shane at 632-633. In other words, “[a] trial court does not abuse its discretion by not giving a jury instruction if the evidence is insufficient to warrant the requested instruction.” State v. Cutts, Stark App. No. 2008CA000079, 2009-Ohio-3563, ¶72, citing State v. Lessin, 67 Ohio St.3d 487, 494, 1993-
Involuntary Manslaughter
{¶32} Involuntary manslaughter is a lesser-included offense of felony murder. State v. Thomas, Lucas App. No. L-06-1331, 2009-Ohio-1748, ¶29, citing State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, ¶79. However, although involuntary manslaughter is a lesser-included offense, based on the evidence presented in this case, we find no jury could have reasonably concluded that appellant‘s acts constituted anything other than felonious assault with a deadly weapon, the predicate offense supporting his felony murder charge. See State v. Rader, Butler App. No. CA2010-11-310, 2011-Ohio-5084, ¶51; State v. Finley, Hamilton App. No. C-061052, 2010-Ohio-5203, ¶30. As noted above, the state presented overwhelming evidence indicating appellant caused McKenzie‘s death by stabbing him in the chest with a knife four times and inflicting additional ten abraded incised wounds all within a five by five inch area above his heart. The knife appellant used to stab McKenzie to death certainly constitutes a deadly weapon. See State v. Nichols, Brown App. No. CA2009-10-038, 2010-Ohio-4566, ¶26; State v. Cramer, Butler App. No. CA2003-03-078, 2004-Ohio-1712, ¶28. Therefore, because the evidence did not reasonably support an acquittal on his felony murder charge and a conviction on the lesser-included offense of involuntary manslaughter, the trial court did not err by failing to instruct the jury as such. Accordingly, appellant‘s argument claiming the trial court erred by refusing to instruct the jury on involuntary manslaughter is overruled.
Voluntary Manslaughter
{¶33} Contrary to appellant‘s claims, voluntary manslaughter is not a lesser-included offense of murder, but instead, merely an inferior degree of murder. Gray, 2011-Ohio-666 at
{¶34} Before giving a voluntary manslaughter instruction in a murder case, the trial court must determine “whether evidence of reasonably sufficient provocation occasioned by the victim has been presented to warrant such an instruction.” Shane at 635; Gray, 2011-Ohio-666 at ¶35. For provocation to be reasonably sufficient, “it must be sufficient to arouse the passions of an ordinary person beyond the power of his or her control.” State v. Bainum (Sept. 24, 2001), Butler App. No. CA99-12-217, at 5. In determining whether the provocation was reasonably sufficient to incite the use of deadly force, “the court must consider the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time.” Rice at ¶36, quoting State v. Deem (1988), 40 Ohio St.3d 205, 211.
{¶35} In this case, while appellant did testify that it is “kind of scary when someone is drunk and has a knife,” fear alone “is insufficient to demonstrate the kind of emotional state necessary to constitute sudden passion or fit of rage.” State v. Perdue, 153 Ohio App.3d 213, 2003-Ohio-3481, ¶12. Moreover, the evidence clearly indicates that appellant stabbed an intoxicated McKenzie after he secured the knife because McKenzie refused to stop “pushing” and “wailing” on him. This certainly does not rise to the level of reasonably
{¶36} In light of the foregoing, having found no error in the trial court‘s refusal to instruct the jury on the lesser-included offense of involuntary manslaughter or voluntary manslaughter as an inferior degree of murder, appellant‘s third assignment of error is overruled.
{¶37} Assignment of Error No. 4:
{¶38} “THE PROSECUTOR‘S INAPPROPRIATE COMMENTS, ALONG WITH THE OTHER ERRORS DISCUSSED, HAD A CUMULATIVE EFFECT OF DENYING APPELLANT‘S FAIR TRIAL RIGHTS.”
{¶39} In his fourth assignment of error, appellant argues that the state engaged in prosecutorial misconduct during its closing argument. Appellant also argues that he was denied a fair trial due to the cumulative errors committed by the trial court. These arguments lack merit.
{¶40} Initially, as it relates to his prosecutorial misconduct claim, appellant calls our attention to the following statement made by the state during its closing argument:
{¶41} “[THE STATE]: I hope your verdict reflects the truth and tells this defendant that here in Butler County, you can‘t stab somebody four times in the chest and get away with it.”
{¶42} According to appellant, by making this statement, the state advanced an
{¶43} When reviewing statements made during closing arguments for prosecutorial misconduct, a prosecutor is granted a certain degree of latitude. State v. Bates, Butler App. No. CA2009-06-174, 2010-Ohio-1723, ¶27, citing State v. Smith (1984), 14 Ohio St.3d 13, 13-14. In turn, prosecutorial misconduct will only be found when remarks made during closing were improper and those improper remarks prejudicially affected substantial rights of the defendant. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶62. The touchstone of the analysis is the fairness of the trial, not the culpability of the prosecutor. State v. Morgan, Clinton App. No. CA2008-08-035, 2009-Ohio-6050, ¶30, citing State v. Lott (1990), 51 Ohio St.3d 160, 166. In order to determine whether the remarks were prejudicial, the prosecutor‘s closing argument is reviewed in its entirety. State v. Layne, Clermont App. No. CA2009-07-043, 2010-Ohio-2308, ¶58, citing State v. Treesh, 90 Ohio St.3d 460, 464, 2001-Ohio-4.
{¶44} As this court recently stated, a “Golden Rule” argument “exists where counsel appeals to the jury to abandon their position of impartiality by imagining themselves in the position of one of the parties.” In re Johnson, Butler App. No. CA2010-07-189, 2011-Ohio-2466, ¶18, fn. 1. In other words, as it relates more to the criminal context, a “Golden Rule” argument “essentially involves a request by the prosecutor that the jury accord a defendant the same treatment that the defendant accorded his victim.” State v. Hairston (Jan. 18, 1984), Hamilton App. No. C-830127, 1984 WL 4184, *2. Such arguments, while generally prohibited, are “not per se prejudicial so as to warrant a new trial.” State v. Southall, Stark App. No. 2008 CA 00105, 2009-Ohio-768, ¶115. Instead, the test is whether such an argument “prejudicially affected substantial rights of the defendant.” State v. Ross, Montgomery App. No. 22958, 2010-Ohio-843, ¶126.
{¶46} Next, as it relates to his cumulative error claim, appellant argues that the prosecutor‘s statement made during its closing argument, when “coupled with the trial court‘s erroneous exclusion of any instruction on [his] affirmative self-defense claim or lesser included charges,” denied him a fair trial. We disagree.
{¶47} Under the cumulative error doctrine, “a conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of numerous instances of trial court error does not individually constitute cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 1995-Ohio-168, citing State v. DeMarco (1987), 31 Ohio St.3d 191, paragraph two of the syllabus. The doctrine is not applicable, however, “to cases where there has not been a finding of multiple instances of harmless error.” State v. Bai, Butler App. No. CA2010-05-116, 2011-Ohio-2206, ¶156.
{¶49} In light of the foregoing, having found no merit to either argument advanced by appellant under this assignment of error, appellant‘s fourth assignment of error is overruled.
{¶50} Judgment affirmed.
HENDRICKSON, P.J., and YOUNG, J., concur.
Young, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.