Summary
finding prior calculation and design where defendant argued with the victim, assaulted the victim, retrieved a sword and then stabbed the victim to death because defendant had sufficient time to formulate a plan and carry it out
Summary of this case from State v. ConleyOpinion
No. 78-906
Decided May 2, 1979.
Criminal law — Aggravated murder — Finding of "prior calculation and design" — Justified, when — Self-defense — Defense established, how.
1. Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified. ( State v. Cotton, 56 Ohio St.2d 8, paragraph three of the syllabus, approved and followed.)
2. To establish self-defense, the following elements must be shown: (1) the slayer was not at fault in creating the situation giving rise to the affray; (2) the slayer has a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) the slayer must not have violated any duty to retreat or avoid the danger. ( State v. Melchior, 56 Ohio St.2d 15, approved and followed.)
APPEAL from the Court of Appeals for Franklin County.
On December 14, 1977, defendant-appellant, Barry M. Robbins, Jr., was found guilty of aggravated murder in violation of R.C. 2903.01(A). Evidence adduced at the trial before a jury indicates that the decedent, Jan Canterbury, and appellant were drinking together on the day of decedent's death, September 16, 1977. Hastine Clark, an eyewitness on behalf of the state, testified that she was in appellant's apartment when the incident occurred. Appellant asked the victim to go out and buy some food and the victim returned some time later having used appellant's food money to buy liquor instead. An argument thereupon ensued. Clark, who saw appellant strike the victim, testified as follows: that appellant was the first one to hit anybody; that "[h]e [appellant] just drawed his fist and hit him"; and that after the victim had fallen to the ground, "[h]e [appellant] turned and come back into the room. He got something like a sword, I think, and went back out. That is when I seen him draw back. He stabbed him once."
Essentially, state's witness Clark testified that, after the victim was on the floor, appellant came back into his apartment, raised up his bed and extracted a weapon. Then, appellant pushed the witness back and went outside the apartment to stab the victim. The victim never got up after appellant's initial blow that sent him to the floor. Clark was able to view the incident since the apartment door was partially open. She testified that "I was just looking out the door when I seen him do that." Appellant had Clark mop the floor and help him move the body to another apartment.
Paul McNeil was living in the apartment next to appellant's when the incident occurred. Because of the plywood walls, McNeil was able to hear what transpired at the time of the stabbing. He testified that appellant told Canterbury that he (the victim) was no good. The last words that McNeil heard the victim speak were to leave him (the victim) alone, and that he was down and out already. McNeil then heard the victim being dragged back to the victim's own apartment. The next day he saw Hastine Clark mopping the hallway floor, which activity was unusual. Finally, he testified that he was the one who found the victim's body.
Police officer Robert Shirey testified that appellant made various statements to the police. In one such statement, appellant stated that, when the victim returned empty-handed, appellant became angry and hit the victim in the face. Appellant then returned to his apartment, closed his door and heard a seuffle in the hallway. Appellant maintained that, three days prior to the incident, the victim had stolen his sword. When Officer Shirey indicated his disbelief of appellant's first story, appellant then stated that, after he had knocked the victim to the floor, David Martinez entered the scene and asked for appellant's knife. After appellant gave him the knife, Martinez then cut the victim's throat. Finally, no bruises or contusions were noticed on appellant by Officer Shirey, and, when appellant was asked if he was sick or injured, he replied, "No."
At the trial, appellant testified that, on the morning of the incident, appellant and the victim drank together. The victim was sent out to buy food, but instead bought two shots of liquor. Appellant stated further, "[t]hat is when I hit him in the mouth. He went back to the banister and we got to fighting out there." The door to appellant's apartment remained open. The men continued their fight and appellant was cut on his chest. Appellant "rushed" the victim, struggled with him, and the knife fell to the floor. When appellant went to pick up the knife, the victim started to choke appellant while appellant was on his knees. Appellant stated that, as he grew dizzy, "I fell on the knife and I started shooting back." Appellant continued to testify that, in a little while, the victim released his grip. Appellant got up and went back to his room. He later went out to help the victim but the victim told appellant to leave. At that time, appellant "didn't think he [the victim] was hurt bad."
Appellant stated that his various stories were a result of being "high" at the time. Finally, when asked if he was thinking in terms of self-defense during the fight, appellant replied, "No."
Dr. Robert E. Zipf, Jr., conducted the autopsy upon the victim on September 18, 1977. The cause of death was a stab wound which cut one the main arteries in the neck. The victim had throat wounds, cuts on the back of his head and on his arms. Further, there were multiple abrasions over the nose and cheek of the victim. The weapon used was long, sharp on one edge, and blunt on the other edge. The direction of the stabbings occurred from top to bottom. Wounds on the victim's right hand appeared to be defensive type wounds. The bruising occurred just before the victim's death.
On cross-examination, Dr. Zipf testified that the victim's "blood contained .42 grams percent of alcohol, .07 milligrams of Diazepan and .08 milligrams of Desmethyl-diazepan." He stated that the victim could have lived for about 30 minutes after the attack.
On redirect, Dr. Zipf was asked to explain the effect upon the victim of having a .42 blood alcohol content, and he stated as follows:
"* * * He would not be able to have the physical reflexes and strength at that level since it is so high and just whether such an individual could actually produce enough force to actually choke or strangle somebody, I would — I find that hard to envision * * * [w]ith that alcohol content, it is not probable that the victim could have been a real threat to anyone else * * * [h]is inability to talk coherently, his marked loss of coordination, his inability to even walk without falling over would certainly be apparent."
The trial court sentenced appellant to life imprisonment, and upon appeal the Court of Appeals affirmed.
the cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. George C. Smith, prosecuting attorney, and Mr. Steve Robins, for appellee.
Mr. James Kura and Mr. Gregory L. Ayers, for appellant.
Appellant's first proposition of law states:
"The element of prior calculation and design in the offense of aggravated murder, Ohio Revised Code Section 2903.01(A), requires that the defendant exercise studied care in planning or analyzing the means or instrument with which to kill another, as well as the scheme by which it is to occur. Prior calculation and design is not established where, as here, the evidence clearly shows that the killing occurred on the spur of the moment or after momentary deliberation during a heated brawl which resulted from an instantaneous eruption of events."
Appellant was convicted of aggravated murder pursuant to R.C. 2903.01(A), which reads:
"No person shall purposely, and with prior calculation and design, cause the death of another."
Although we agree with appellant's contention that prior "calculation and design" is a more stringent element then the "deliberate and premeditated malice" which was required under prior law, we do not agree with appellant's contention with regard to the evidence. The state's evidence, which the jury evidently believed, indicates that the appellant was the aggressor and, contrary to appellant's interpretation, the evidence was not such as indicating a heated brawl which resulted from an instantaneous eruption of events, but, on the contrary, as noted by the Court of Appeals, the appellant accosted the decedent in the hallway of their apartment building and struck the decedent, knocking him to the floor. Further, the state's evidence was that the appellant went into his adjacent apartment and got a long knife, or "sword," from under his mattress, returned to the hallway and stabbed the victim to death. The victim tested .42 percent blood alcohol content, which, according to the medical examiner, would probably result in a condition where the victim could not have been a real threat to anyone and that his stupor would have been obvious. The appellant and Hastine Clark, who testified for the prosecution, moved the victim's body to another apartment and attempted to clean the hallway.
The actions of appellant as adduced by the state's evidence established that appellant used extreme aggression against a helpless victim, then leaving the victim in the hallway and returning to his apartment to secure the weapon which he used to stab the victim to death instants later. This evidence is sufficient to support a jury's finding of "prior calculation and design."
These facts as could be interpreted by the jury do not so much speak of a heated brawl, but of appellant's holding the victim's life in such cheap regard. This court similarly construed "prior calculation and design" in State v. Cotton *1978), 56 Ohio St.2d 8, at paragraph three of the syllabus, stating:
"Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified."
The appellant's first proposition of law must be rejected.
Appellant's second proposition of law is that the appellant presented sufficient evidence to raise the defense of self-defense, and that it was prejudicial error for the trial court to refuse to instruct the jury on that defense. The trial court charged the jury on aggravated murder and the lesser included crimes of murder and voluntary manslaughter. The trial court found that the plea of self-defense was not available to the appellant since the appellant was the aggressor and had not withdrawn from the affray. The Court of Appeals in its opinion held that appellant's testimony constituted sufficient evidence to raise the affirmative defense of self-defense, but that the failure of the trial court to charge thereon was not prejudicial. We find from a thorough reading of the record that there was insufficient evidence to raise a question in the minds of reasonable men concerning the existence of such issue of whether the appellant acted justifiably in self-defense. In the recent case of State v. Melchior (1978), 56 Ohio St.2d 15, at pages 20-21, this court stated:
"To establish self-defense, the following elements must be shown: (1) the slayer was not at fault in creating the situation giving rise to the affray, Stewart v. State (1852), 1 Ohio St. 66, 75; State v. Doty (1916), 94 Ohio St. 258; State v. Morgan (1919), 100 Ohio St. 66, 72; (2) the slayer has a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force, Marts v. State (1875), 26 Ohio St. 163, paragraph two of the syllabus; State v. Champion (1924), 109 Ohio St. 281, paragraph one of the syllabus; State v. Sheets (1926), 115 Ohio St. 308, 310; and (3) the slayer must not have violated any duty to retreat or avoid the danger, State v. Peacock (1883), 40 Ohio St. 333, 334; Graham v. State (1918), 98 Ohio St. 77, 79."
In the instant cause, appellant admitted striking the first blow and being the aggressor. From his own testimony the affray took a turn for the worse as far as he was concerned in that the victim was choking him. He claims that this was the reason he struck back with a knife. However, from the evidence adduced it appears that appellant had many opportunities to retreat and avoid danger, which he failed to do. Appellant testified as follows:
"Q. At the time you killed Jan Canterbury, were you thinking about the right of self-defense?
"A. Sir?
"Q. At the time you killed Jan Canterbury, did you think about self-defense? Did it occur to you that you may have had a right to self-defense?
"A. No, sir."
State v. Melchior, supra, in paragraph one of the syllabus, states:
"The proper standard for determining in a criminal case whether a defendant has successfully raised an affirmative defense under R.C. 2901.05 is to inquire whether the defendant has introduced sufficient evidence, which, if believed, would raise a question in the minds of reasonable men concerning the existence of such issue."
The evidence in the record is clear that the appellant was at fault in creating the situation giving rise to the affray and nowhere in the record is there evidence indicating an attempt on the part of the appellant to withdraw from the conflict and his intention of abandoning his actions to do harm to the victim.
We find that the trial court did not err in its refusal to instruct the jury on the charge of self-defense, and appellant's second proposition of law is not well taken.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY and HOLMES, JJ., concur.
DONOFRIO, J., of the Seventh Appellate District, sitting for LOCHER, J.