observing that accident defense is a complete defenseSummary of this case from State v. Wilson
Decided February 16, 1983.
Criminal law — Failure to object to jury instruction on voluntary manslaughter — Waiver.
O.Jur 3d Criminal Law § 1445.
The failure to object to a jury instruction constitutes a waiver of any claim of error relative thereto, unless, but for the error, the outcome of the trial clearly would have been otherwise. ( State v. Long, 53 Ohio St.2d 91 [7 O.O.3d 178], approved and followed.)
APPEAL from the Court of Appeals for Hamilton County.
The defendant, Jerry E. Underwood, was indicted for the aggravated murder of Linda D. Walker. The defendant and Mrs. Walker had a long and stormy relationship, with frequent and lengthy separations. The relationship produced at least one child, Antonio, who was five years old when his mother died. During one separation, Linda married Richard Walker, through whom she conceived her second son, Teddy. Linda's third child, Lachanda, was born in January 1979. The defendant believed Lachanda was his daughter.
In early April 1980, the defendant and Linda contemplated living together in an apartment on Colerain Avenue in Cincinnati. The defendant moved various items of furniture into the apartment, as well as some personal items. When the defendant returned to the apartment on April 16, he found that Linda had taken nearly all of the household goods. He later discovered that Linda and her children had moved in with a friend, Debra Black, and her two infant children.
On May 27, 1980, the defendant, armed with a knife, went to the apartment where Linda was living. An altercation ensued, resulting in Linda suffering nine stab wounds, one bullet wound and eventual death.
The most important witness for the state was Patricia Black, the fourteen-year-old sister of Debra Black. Patricia testified that she was in the living room of her sister's apartment with the infant Lachanda and Debra's two children, when the defendant arrived about 5:25 p.m. She further testified that the defendant entered the apartment with a knife in his right hand and asked her where Linda was. Linda then entered the room. The defendant and Linda began arguing and yelling. He began to slap and beat Linda and told her:
"* * * you better kiss your little girl goodby because you are going to die."
During the struggle Linda was able to obtain a gun, evidently from her purse. The gun was fired twice. The first shot hit the apartment ceiling. The second shot penetrated Linda's chest, lung and heart. Patricia testified that she saw the gun in the defendant's hand immediately prior to the second shot.
The chief deputy coroner testified that the decedent also received nine stab wounds, five of which were superficial. Two stab wounds in the back struck a lung and two went to the bone of the shoulder.
The defendant's defense was accident. The defendant testified that he and Linda argued about the children. "I got angry for the reason Teddy and them were outside with nobody guarding them and Lachanda was laying there naked." The defendant also testified that prior to May 27, 1980, he had last seen Linda on April 25, 1980.
The trial court charged the jury on aggravated murder, murder and voluntary manslaughter. The jury was also charged on the complete defense of accident.
The charge on voluntary manslaughter placed the burden upon the state to prove "extreme emotional stress," as described in former R.C. 2903.03, beyond a reasonable doubt. The charge was the same as the charge found to be improper in State v. Muscatello (1978), 55 Ohio St.2d 201 [9 O.O.3d 148].
No objection was made to the charge. To the contrary, defense counsel stated that he had been given a copy of the prepared charge a full day before the trial ended and that he was in complete agreement with the charge. Upon deliberations, the jury found the defendant guilty of murder.
On appeal the court of appeals reversed the defendant's conviction finding the charge on voluntary manslaughter to be plain error.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Simon L. Leis, Jr., prosecuting attorney, and Mr. William E. Breyer, for appellant.
Mr. Robert Blackmore and Mrs. Elizabeth Agar, for appellee.
The sole issue in this case is whether the charge on voluntary manslaughter was plain error.
The same charge was found to be plain error in State v. Muscatello (1977), 57 Ohio App.2d 231 [11 O.O.3d 320]. The Court of Appeals for Cuyahoga County reversed Muscatello's murder conviction for this reason as well as two other assignments of error not relevant to this opinion. We affirmed that court's decision in State v. Muscatello (1978), 55 Ohio St.2d 201 [9 O.O.3d 148]; however, we did not address the plain error issue.
Absent plain error, the failure to object to improprieties in jury instructions, as required by Crim. R. 30, is a waiver of the issue on appeal. State v. Williams (1977), 51 Ohio St.2d 112 [5 O.O.3d 98]; State v. Humphries (1977), 51 Ohio St.2d 95 [5 O.O.3d 89].
The trial court's instruction on voluntary manslaughter at least inferentially placed upon the defendant the burden to prove beyond a reasonable doubt the emotional stress, as described in former R.C. 2903.03. After the amendment of R.C. 2901.05, effective November 1, 1978, the defendant had the burden of proof by only a preponderance of the evidence.
We agree with the court of appeals that there was sufficient evidence to raise the issue of the mitigating circumstances of extreme emotional stress, which, if believed by the trier of fact, would support a verdict of voluntary manslaughter. We are also of the opinion that under the facts of the instant case the charge on the lesser included offense of voluntary manslaughter was not inconsistent with the complete defense of accident.
We have held that a jury instruction which improperly places the burden of proof upon a defendant "does not constitute a plain error or defect under Crim. R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise." State v. Long (1978), 53 Ohio St.2d 91 [7 O.O.3d 178], paragraph two of the syllabus. In the same case we concluded that the plain error rule should be applied with utmost caution and should be invoked only to prevent a clear miscarriage of justice.
The evidence on extreme emotional stress was barely sufficient to warrant a charge on voluntary manslaughter. The state's evidence of murder was overwhelming.
The facts in this case fall far short of meeting the criteria for plain error. We see no miscarriage of justice in this case.
The judgment of the court of appeals is reversed.
CELEBREZZE, C.J., SWEENEY and LOCHER, JJ., concur.
W. BROWN and C. BROWN, JJ., concur in the syllabus and judgment.
HOLMES, J., concurs.
WILSON, J., of the Second Appellate District, sitting by assignment.
I concur in the syllabus and the judgment herein, and that part of the opinion which holds that the defendant was not prejudiced by the error of the charge regarding the burden of proof of emotional stress in light of the totality of the evidence overwhelmingly supporting a finding of guilt. However, I disagree with the analysis of the evidence here by the majority which results in the conclusion that such evidence is reasonably supportive of a charge on voluntary manslaughter, and do so for two reasons. First, in my view, the evidence is not supportive of the necessary element of emotional stress occasioned by the immediate circumstances of the parties. The problems between these two persons had occurred over an extended period of time, and on the date of the killing the defendant had initiated the contact after more than a month's separation. Upon seeing the deceased, the defendant attacked her with a knife.
Second, the defendant advanced the affirmative defense of accident, claiming the killing was unintentional. This was a complete defense which would have occasioned an acquittal if believed, and the jury was so charged. As a general rule, the advancement of a complete defense bars the trial court from charging on a lesser included offense. State v. Nolton (1969), 19 Ohio St.2d 133 [48 O.O.2d 119]. Of course, the court can still charge on a lesser included offense if the state's evidence would support one, but here the lowest offense shown by the state's evidence was murder.
Therefore, it would be my conclusion that the defendant had not been entitled to a charge on voluntary manslaughter and, accordingly, any error contained within such charge would not constitute reversible error.
W. BROWN and C. BROWN, JJ., concur in the foregoing concurring opinion.