In Williams, the court declined to consider a constitutional challenge to Ohio's traditional self-defense instruction, again because the defendant had not properly objected to the instruction at trial.Summary of this case from Engle v. Isaac
Decided July 20, 1977.
Criminal law — Appeal — Error not considered by appellate court, when.
1. An appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. (Paragraph one of the syllabus of State v. Glaros, 170 Ohio St. 471, approved and followed.)
2. The Supreme Court will not ordinarily consider a claim of error that was not raised in any way in the Court of Appeals and was not considered or decided by that court. ( Toledo v. Reasonover, 5 Ohio St.2d 22, approved and followed.)
APPEAL from the Court of Appeals for Cuyahoga County.
On Saturday, April 5, 1975, at approximately 10:30 p.m., Harry Feldman, age 71 years, left his apartment at 11732 Lake Avenue, Lakewood, Ohio, to visit his two taverns for the purpose of collecting the cash receipts. He first stopped at a tavern located at 1216 Prospect Avenue and then proceeded to the second tavern at 2402 St. Clair Avenue, both in the city of Cleveland.
According to the testimony of his surviving spouse, it was his custom to bring the cash home and deposit it the following day in a Lakewood bank. On that Saturday afternoon he had purchased some orange juice and a jar of peanut butter from a Kroger supermarket. Apparently, the jar of peanut butter had been inadvertently left in his car.
About 6:00 p.m., on the evening of the same day, Patricia Forgus, Donald Hicks and Robert Williams, appellant herein, were in a parking lot at East 55th and Central Avenue in the city of Cleveland "snorting" a recent purchase of heroin obtained from the proceeds of the sale of a tape recorder. These three then proceeded to a nearby hall where they participated in a pool game until 11:00 p.m. They then went to Williams' apartment where they talked with some people, and then the three went riding in Williams' borrowed car.
At approximately 2:00 a.m., on the morning of April 6, 1975, they returned to East 55th and Central Avenue where they picked up Kenneth Duncan, who knew Feldman and his customs. With Williams driving, the four proceeded to the area of 1216 Prospect Avenue looking for Feldman's automobile. They then drove over to the tavern on St. Clair and waited for Feldman to appear. Upon seeing Feldman get into his car and leave, they followed him west on St. Clair Avenue to Ninth Street, onto the Freeway and west to his apartment building. Feldman pulled into the driveway and Williams stopped just past the driveway. The garage was adjacent to the apartment building, but the pedestrian door required tenants to leave the garage, walk back onto the driveway area and then enter the apartment building.
As Feldman came out of the garage he was met by Duncan. Williams was also in the immediate area. There was some conversation, the subject matter of which is in dispute. However, Duncan, who was appellant's only witness, said he became apprehensive when Feldman reached into his pocket. In the course of the encounter someone fired a .38 caliber Smith and Wesson revolver four times, three bullets striking Feldman's back and the fourth entering his right arm above the elbow, passing through soft tissue, then into his chest cavity just below his armpit, then passing through his right lung, his heart and his breastbone and finally lodging just beneath the skin on the left side of his chest. The deputy coroner testified that it was the fourth bullet that killed Feldman. Before he fell, Feldman either threw or shoved the peanut butter at his assailants, for the broken glass, lid and most of the contents were found in the immediate area.
Duncan and Williams immediately fled the scene. Forgus, upon hearing the shots, got behind the wheel of the vehicle in which she and Hicks had been awaiting the return of the others, started the car and drove away leaving the other two to proceed on foot.
Two Lakewood policemen, cruising nearby, also heard the shots. It was they who discovered Feldman's body in the driveway. One of the officers found a loaded weapon in a holster in Feldman's right coat pocket.
The officer who drove Feldman's body to the hospital discovered $439.93 in various places on his person. It was approximately 3:21 a.m.
A citizen who was operating a vehicle in the area heard the police broadcast of the incident over his citizens' band radio, and noticing the car now driven by Forgus followed it. As the car continued west, the citizen, who had obtained the license number, informed another policeman at the scene. The fleeing vehicle was quickly spotted and stopped and the occupants, Forgus and Hicks, arrested. It was now approximately 3:30 a.m.
A newspaper delivery man, making a stop at a nearby motel, noticed that the desk clerk was not at his usual station. As he left he saw the desk clerk and another man step into a hallway. The delivery man notified the Lakewood police and, at 4:30 a.m., two officers arrested Duncan as he came into the motel lobby.
Another police officer who had also heard the police call was patrolling the eastern end of the city of Lakewood looking for suspects. At approximately 6:15 a.m., he noticed Williams walking east on Edgewater Drive and from the broadcast description he arrested the appellant. At the time of his arrest Williams had peanut butter on his leather coat and under his fingernails, and also a red substance which turned out to be blood of the same type as the decedent's.
The peanut butter, broken glass from the jar and the lid were retrieved from the death scene. The glass was favorably compared to particles from appellant's trouser cuff. Although the clothing of Hicks and Duncan was removed and examined, no glass, blood or peanut butter was found on it.
A diligent search of the area resulted in the finding of two weapons. A .357 caliber magnum revolver was found in a window well at 11833-11835 Edgewater Drive. Duncan claimed it had not been fired, though fully loaded. A .38 caliber Smith and Wesson revolver was found on the side of the building located at 12021 Edgewater Drive. It contained five spent casings in the cylinder and had peanut butter on the handle, trigger and hammer areas.
The evidence further discloses that the victim was shot by a .38 caliber Smith and Wesson revolver. This revolver was obtained by the defendant, Williams, a day before the shooting occurred. In addition, the .357 caliber magnum revolver bore Duncan's finger prints.
On April 10, 1975, Williams, Hicks, Duncan and Forgus were indicted for aggravated murder, with a specification of committing or attempting to commit aggravated robbery, and a second count of aggravated robbery.
Williams' case proceeded to a jury trial on May 12, 1975. The jury returned a guilty verdict to the charges in the indictment on May 16, 1975, and the court conducted a mitigation hearing on June 3, 1975. The court found no mitigating circumstances present and ordered the execution of Williams.
The decision was appealed to the Court of Appeals, and on June 17, 1976, the judgment of the trial court was affirmed.
The cause is now before this court as a matter of right.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Thomas J. Sammon for appellee.
Messrs. Gold, Rotatori, Messerman Schwartz and Mr. Gerald A. Messerman, for appellant.
Appellant presents four propositions of law.
In his first proposition of law, appellant contends that the trial court denied him a fair trial in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution. Appellant supports this contention with three arguments.
First, citing State v. Robinson (1976), 47 Ohio St.2d 103, 351 N.E.2d 88, and Mullaney v. Wilbur (1975), 421 U.S. 684, appellant complains that the trial judge improperly charged that the burden of proving the affirmative defense of self-defense is upon the defendant, and that it must be established by a preponderance of the evidence.
Second, appellant argues that the trial court failed to properly instruct the jury on all the essential elements of the crime of aggravated robbery.
Third, appellant contends that the statutory definitions of "reasonable doubt" and "proof beyond a reasonable doubt" are a substantial departure from constitutional principles measuring the adequacy of proof in criminal cases. Specifically, appellant complains of the following language contained in R.C. 2901.05(D):
R.C. 2901.05(D) reads as follows:
"`Reasonable doubt' is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. `Proof beyond a reasonable doubt' is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs."
"* * * `Proof beyond a reasonable doubt' is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs."
This court need not address this proposition of law as the appellant failed to object to the jury instructions. He likewise failed to raise any of these issues in the Court of Appeals. This court has consistently held that an appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. State v. Gordon (1971), 28 Ohio St.2d 45, 276 N.E.2d 243; State v. Lancaster (1971), 25 Ohio St.2d 83, 267 N.E.2d 291; State v. Davis (1964), 1 Ohio St.2d 28, 203 N.E.2d 357; State v. Glaros (1960), 170 Ohio St. 471, 166 N.E.2d 379. "Any other rule," this court stated in State v. Driscoll (1922), 106 Ohio St. 33, 138 N.E. 376, at 39, "would relieve counsel from any duty or responsibility to the court and place the entire responsibility upon the trial court to give faultless instructions upon every possible feature of the case, thereby disregarding entirely the true relation of court and counsel which enjoins upon counsel the duty to exercise diligence and to aid the court rather than by silence mislead the court into commission of error." See Crim. R. 30.
The fact that the appellant raises a federal constitutional question does not charge this court's conclusion. It is an established rule of long-standing in this state that a criminal constitutional question can not be raised in the Supreme Court unless it is presented and urged in the court below. State v. Phillips (1971), 27 Ohio St.2d 294, 272 N.E.2d 347; State v. Wallen (1971), 25 Ohio St.2d 45, 266 N.E.2d 561; State v. Lisiewski (1969), 20 Ohio St.2d 20, 252 N.E.2d 168; State v. Jones (1965), 4 Ohio St.2d 13, 211 N.E.2d 198; Toledo v. Reasonover (1965), 5 Ohio St.2d 22, 213 N.E.2d 179; State v. Davis, supra ( 1 Ohio St.2d 28); Stephenson v. State (1928), 119 Ohio St. 349, 164 N.E. 359; State v. Wirick (1910), 81 Ohio St. 343, 90 N.E. 937.
This principle is widely recognized by courts of last resort in other states, People v. Friola (1962), 11 N.Y. 2d 157, 182 N.E.2d 100; People v. Gallegos (1971), 4 Cal.3d 242, 481 P.2d 237; State v. York (Iowa 1973), 211 N.W.2d 314; State v. Albers (N.D. 1973), 211 N.W.2d 524; State v. Thomas (Minn. 1975), 232 N.W.2d 766; Shorey v. State (1962), 227 Md. 385, 177 A.2d 245, certiorari denied, 371 U.S. 928, and by the United States Supreme Court. Thus, in Mapp v. Ohio (1961), 367 U.S. 643, 659, in fn. 9, it is stated:
"As is always the case, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected."
Moreover, in so holding this court finds no miscarriage of justice in the instant cause. The exculpatory testimony of the appellant's witness finds little support in the record. Through an array of 19 witnesses and 51 exhibits, the state presented convincing evidence indicative of the appellant's guilt.
This proposition of law is rejected.
Appellant, in his second proposition of law, contends that the trial court denied him a fair trial by allowing the prosecutor to improperly cross-examine the appellant's defense witness.
Duncan, appellant's only witness, testified that he had shot the victim in self-defense. The prosecutor, in cross-examining Duncan, asked the following:
"Q. * * * Is it a fact that Mr. Williams was the leader of a Black Muslim Group?
"Mr. Peppers: Objection.
"Mr. Corsi: Objection.
"The Court: Overruled.
"Q. Is it a fact that Mr. Williams is a leader of a Black Muslim Group?
"Mr. Peppers: Objection your Honor. May we approach the bench?
"The Court: Overruled. Overruled.
"Q. Did you ever associate with Mr. Williams with other members of a Black Muslim community?
"Mr. Corsi: Objection.
"The Court: Overruled.
"Q. And isn't it a fact that you are testifying here today because Mr. Williams told you to testify here for him?
"Mr. Peppers: Objection, your Honor.
"The Court: Overruled.
The point of these questions was apparently to discredit Duncan by showing or suggesting to the jury a reason for his appearing and testifying on behalf of the appellant. There is nothing in the record to indicate any foundation for these questions. The attempt to communicate by innuendo through the questioning of witnesses when the questioner has no evidence to support the innuendo is improper. Richardson v. United States (C.A. 6, 1945), 150 F.2d 58; People v. Di Paolo (1962), 366 Mich. 394, 115 N.W.2d 78; State v. Flowers (1962), 262 Minn. 164, 114 N.W.2d 78. See, also, 6 Wigmore on Evidence (3 Ed.), Section 1808 (2) (1940); A.B.A. Standards Relating to the Prosecution Function, Section 5.7(d) (1970). Upon consideration of the record, this court holds this error to be harmless. Chapman v. California (1967), 386 U.S. 18.
This proposition of law is rejected.
Appellant contends, in his third proposition of law, that he was denied effective assistance of counsel. Three separate grounds are presented.
Appellant claims error in the court's failure to give notice to counsel of the prosecutor's motion to take a blood sample. This motion was apparently granted ex parte several days after arraignment and appointment of counsel.
This claim of error is well taken, because counsel certainly should have been notified of the proposed blood test. However, it is equally evident that this error did not prejudice the appellant. See State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 358 N.E.2d 623.
Appellant claims further that his counsel was ineffective in failing to file a motion to suppress and in failing to object to the court's charge.
The court need not address these arguments. They are of a constitutional nature and they were not raised in the Court of Appeals. State v. Phillips, supra.
This proposition of law is rejected.
In his fourth proposition of law, appellant complains that the statutory framework for the imposition of the death sentence in Ohio is unconstitutional. This proposition was rejected in State v. Bayless (1976), 48 Ohio St.2d 73, 357 N.E.2d 1035.
The judgment of the Court of Appeals is affirmed.
HERBERT, W. BROWN, P. BROWN and SWEENEY, JJ., concur.
LOCHER, J., concurs in the judgment only.
CELEBREZZE, J., not participating.
This decision is but a prelude to the score of forthcoming judicial waltzes necessitated by continued adherence to State v. Robinson (1976), 47 Ohio St.2d 103.
The majority's opinion aptly alleviates the visible symptoms and arrives at the correct judgment, but the underlying malady remains untreated. This cosmetic treatment of the instant cause not only infers acceptance of, but is a direct result of, State v. Robinson, supra.
I must, therefore, concur in the judgment only for the reasons I have stated in State v. Humphries (1977), 51 Ohio St.2d 95.