holding that "in a criminal case, where the record affirmatively shows that a trial court has been fully apprised of the correct law governing a material issue in dispute, and the requesting party has been unsuccessful in obtaining the inclusion of that law in the trial court's charge to the jury, such party does not waive his objections to the court's charge by failing to formally object thereto."Summary of this case from State v. Mincey
Submitted March 7, 1989 —
Decided July 5, 1989.
Criminal law — Failure to object formally to court's charge does not waive objections, when — Crim. R. 30(A), construed — Giving instruction on intoxication within court's sound discretion — Charge not warranted, when.
O.Jur 3d Criminal Law §§ 1576, 1577.
1. A party does not waive his objections to the court's charge by failing to formally object thereto (1) where the record affirmatively shows that a trial court has been fully apprised of the correct law governing a material issue in dispute, and (2) the requesting party has been unsuccessful in obtaining the inclusion of that law in the trial court's charge to the jury. (Crim. R. 30[A], construed.)
O.Jur 3d Criminal Law § 1007.
2. It is within the sound discretion of the trial court to determine whether the evidence presented at trial is sufficient to require a jury instruction on intoxication where the accused claims that his inebriated condition negated the mental state required as an element of the crime charged.
APPEAL from the Court of Appeals for Cuyahoga County, No. 52622.
Friday, March 7, 1986, was payday at Overseas Packing Company where defendant-appellee, Edward Wolons, was employed. At 4:30 in the afternoon, defendant and co-workers, Russell Klein, Robert Corrao and Ronnie Cantwell, went to the Nottingham Tavern to cash their checks. The four stayed at the Nottingham Tavern for approximately one and one-half to two hours and according to Klein and Corrao each had four or five beers. Defendant testified that he drank about eight beers. They left the Nottingham Tavern and went to the Corner Cafe across the street and each consumed three to four more beers, staying approximately one hour. Defendant testified that after the group left the Corner Cafe, they stopped to buy a twelve-pack of beer. None of the other witnesses mentioned this purchase.
The group proceeded from the Corner Cafe to Cantwell's apartment where they stayed approximately one hour. Here, the testimony conflicts as to whether any alcohol was consumed. Defendant testified that they had one or two more beers, but Klein did not recall that they had anything to drink during their stay at Cantwell's apartment. Klein also testified that he was sober at this point and that the others seemed to be conducting themselves well.
At approximately 8:30 p.m., Corrao, Klein and defendant left Cantwell's apartment and went to defendant's parents' home. Defendant invited his brother, Robert Wolons, to come to his apartment to spend the night. The group was in good spirits at this time in the evening. Corrao testified that no one seemed intoxicated when they left the Wolonses' house and that Edward Wolons showed no signs that alcohol affected him either after their visit to the Nottingham Tavern or to the Corner Cafe.
Corrao left for his own home after dropping off Klein and the Wolons brothers at defendant's apartment at approximately 9:00 p.m. Edward and Klein had an argument as they entered the building and as they reached the landing that separated their apartments at the top of the stairs. Klein then went to his apartment and Edward and Robert entered Edward's apartment.
Five to ten minutes later, Klein crossed the hall to apologize, but Edward refused the apology and rudely ordered Klein to get out. Robert tried to mediate without success.
As the argument between Klein and Edward ended, Edward's cousin, Jeffrey Sams, arrived with another friend, John Ruffing. According to Sams, the Wolons brothers appeared glad to see each other, as they had not been together for a couple of weeks. Sams testified that he and Ruffing each had one beer, that Edward and Robert also drank, but that he could not say that Edward was completely intoxicated at that point. The four men then went to two discotheques, where each had a total of three drinks. They then purchased a twelve-pack of beer before returning to Edward's apartment. They had three or four more beers before Sams and Ruffing left sometime before midnight. Sams characterized Robert as "very intoxicated" and Edward as "intoxicated."
After Sams and Ruffing left, Edward and Robert had a few more beers. The brothers began arguing, although Edward testified that they had no physical altercation. However, at about 3:00 a.m. the argument was loud enough to wake Klein who was across the hall and Tracy Koester who was in the apartment below Klein's. Sometime between 3:00 and 3:30 a.m., Edward was in the kitchen cutting sausage for a pizza. He testified that, as he stood with the dining room to his left, he heard a noise, and, as he turned around with the kitchen knife in his hand, he saw Robert coming at him and that the knife went into Robert. When Robert dropped to the floor from the knife wound, Edward left the apartment to seek help. He ran down the stairs to knock on Tracy Koester's apartment door since she had the only phone in the building. When he got no answer, Edward went to Klein's apartment, knocked, and asked for help. Klein emerged and crossed the hall with Edward. Klein went into Edward's apartment, where he saw the dining room table upside down, and crates smashed. Robert was on the kitchen floor, apparently unconscious. He died four days later.
A Cuyahoga County Grand Jury returned an indictment charging defendant with murder pursuant to R.C. 2903.02 for the stabbing death of his brother Robert. A jury returned a verdict of guilty, and defendant was sentenced to an indefinite term of incarceration of fifteen years to life.
At trial, the court stated that it would instruct on "accident, murder, no lesser or included, no alcohol, or call it intoxication * * *." When defense counsel asked why no instruction on intoxication would be given, the court responded that he had read all the cases and that the defendant must show that he "was totally out of it, and had no recollection, knowledge or otherwise, or evidence on the factual picture which is certainly not the case from his own testimony in this case."
"THE COURT: * * *
"That is when I intended to give it to you, and I am going to instruct you, instruct on accident, murder, no lesser or included, no alcohol, or call it intoxication, I guess.
"MR. HAFFEY [defendant's counsel]: Why are you not going to instruct on intoxication?
"THE COURT: Because I have read all of the cases, and you must show from the evidence that the defendant was totally out of it, and had no recollection, knowledge or otherwise, or evidence on the factual picture which is certainly not the case from his own testimony in this case.
"MR. HUDSON [prosecutor]: You're absolutely right.
"THE COURT: Which certainly, the case, he had just a lucid understanding of what went on there. The Courts also say that it is up to the prudent judgment of the Trial Judge, having heard, seen and whatever the evidence is, and I honestly don't think that this is the state of the evidence.
"MR. HAFFEY: Your Honor, did you read the Court of Appeals, State versus Webb, and State versus Crawford?
"THE COURT: I have read a lot of cases, Mr. Haffey.
"MR. HAFFEY: I submitted those cases to you that are unreported.
"THE COURT: It is an item for the record. I read a hell of a lot of cases.
"MR. HUDSON: State versus Fox, Supreme Court case is the leading case on it.
"THE COURT: Fine.
"MR. HAFFEY: I gave you the copies of the unreported cases, and I would copy them for the record.
"State versus Webb, your Honor, is a Cuyahoga County Court of Appeals case, 50403, decided May 19, 1986.
"MR. HUDSON: Fox is a 1981 case, I believe.
"MR. HAFFEY: Your Honor, State versus Crawford, Cuyahoga County Court of Appeals, No. 45180, March 10th, 1983.
"Mr. Hudson asked me to give you the citation on State versus Fox, and that is 68 Ohio State 2d, 53, a 1981 case.
"Your Honor, there is also an important decision on the manner and form of an instruction for intoxication, and that's State versus Burgess, Court of Appeals, 10th Appellate Circuit, Case No. 83AP 635.
"Your Honor, in view of your ruling, I would ask, then, in form a motion that the prosecutor be prevented, and instructed from arguing to the jury that you will not hear such-and-such information from the Court."
On defendant's appeal of his conviction, the court of appeals noted that defendant had failed to object to the jury instructions as required by Crim. R. 30, but concluded that Crim. R. 52 relating to plain error was applicable to the case. The court of appeals reversed defendant's murder conviction and held that the trial court had committed plain error by failing to instruct on intoxication, as sufficient evidence had been presented to require the instruction. The court ordered a new trial.
The cause is now before this court upon the allowance of a motion for leave to appeal.
John T. Corrigan, prosecuting attorney, and Paul J. Myles, for appellant.
Bernard, Haffey Bosco Co., L.P.A., and J. Ross Haffey, Jr., for appellee.
We first must determine whether the defendant waived his right to appeal the denial of his request that the jury be instructed on the law of intoxication. We are asked to extend to criminal cases our holding in Presley v. Norwood (1973), 36 Ohio St.2d 29, 65 O.O. 2d 129, 303 N.E.2d 81.
In Presley we considered Civ. R. 51(A), which contains language almost identical to Crim. R. 30(A). Under both rules, a party "may not assign as error the giving or failure to give any instruction [`instructions,' in Crim. R. 30(A)] unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection."
Civ. R. 51 has been construed in the same manner as Fed.R.Civ.P. 51. A party is deemed not to have waived his objection to the court's failure to give a requested jury instruction or to the charge actually given if the record affirmatively shows that the trial court has been fully apprised of the correct law governing a material issue in dispute. Presley, supra, at 33, 65 O.O. 2d at 131, 303 N.E.2d at 84-85. This interpretation of the rule is consistent with the rule's purpose because the distinction between "general" and "special" charges has been abolished by the modern rules of practice, and if a party makes his position sufficiently clear to give the court an opportunity to correct a mistake or defect, then the rationale for formally objecting is no longer present.
This interpretation is applicable when reviewing a trial court's failure to give a requested jury instruction in criminal cases pursuant to Crim. R. 30(A), since the language of Crim. R. 30(A) regarding objections is virtually identical to Civ. R. 51(A). Therefore, in a criminal case, where the record affirmatively shows that a trial court has been fully apprised of the correct law governing a material issue in dispute, and the requesting party has been unsuccessful in obtaining the inclusion of that law in the trial court's charge to the jury, such party does not waive his objections to the court's charge by failing to formally object thereto. Crim. R. 30(A).
The defendant's counsel and the trial court had an extensive discussion of the cases relevant to the issue of whether the trial court should give the requested jury instruction on intoxication. Defendant attempted to persuade the court that the evidence and cases supported his position, and it is clear that the trial court understood his objection to the court's refusal to so instruct. We therefore hold that defendant did not waive his objection by failing to object, on the record, at the end of his discussion with the trial court.
Because we have adopted the Presley rationale for criminal cases and Crim. R. 30(A), we need not consider the propriety of the court of appeals' decision to determine the issue based on the plain-error rule pursuant to Crim. R. 52(B).
We next consider whether the trial court erred in refusing defendant's request that the jury be instructed that defendant raised voluntarily induced intoxication as a defense to the specific intent element of the crime of murder pursuant to R.C. 2903.02.
In State v. Fox (1981), 68 Ohio St.2d 53, 22 O.O. 3d 259, 428 N.E.2d 410, we restated Ohio's concurrence with the general rule in American jurisprudence that voluntary intoxication is not a defense to any crime. We also recognized, however, that intoxication may be considered in determining whether the accused was capable of forming the specific intent essential to the charged crime. State v. French (1961), 171 Ohio St. 501, 14 O.O. 2d 437, 172 N.E.2d 613, certiorari denied (1961), 366 U.S. 973. Notwithstanding this exception, we reiterate our view, stated in Fox, supra, at 56, 22 O.O. 3d at 261, 428 N.E.2d at 413, that it is unnecessary to promulgate a rule to regulate trial courts in this regard. It is within the sound discretion of the trial court to determine whether the evidence presented at trial is sufficient to require a jury instruction on intoxication where the accused claims that his inebriated condition negated the mental state required as an element of the crime charged. See State v. Hipkins (1982), 69 Ohio St.2d 80, 23 O.O. 3d 123, 430 N.E.2d 943; Mann v. Gray (N.D. Ohio 1985), 622 F. Supp. 1225, 1232.
Accordingly, the proper standard of review for the reviewing court is whether the judge's refusal to instruct on intoxication was an abuse of discretion under the facts and circumstances of the case. "The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O. 3d 169, 173, 404 N.E.2d 144, 149. See, also, State v. Weaver (1988), 38 Ohio St.3d 160, 527 N.E.2d 805.
Testimony was presented at trial to support Wolons' claim of intoxication. Klein and defendant stated that in the three hours between 4:30 p.m. and approximately 7:30 p.m., defendant consumed about eight to twelve beers. Between leaving the Corner Cafe and arriving at defendant's apartment, approximately one and one-half hours elapsed. According to defendant, he drank one or two more beers, although the others did not recall consuming any alcohol. Corrao testified that when he left defendant at his apartment, no one in the group seemed intoxicated and defendant showed no signs that the alcohol had affected him. Although defendant testified that he was probably intoxicated when he arrived at his apartment the first time that evening, when asked if he was functioning well, he responded, "I guess so."
Sams and defendant testified that between approximately 9:30 p.m. and midnight, defendant drank about seven or eight more beers. After that time, Edward and Robert were alone until approximately 3:00 a.m., drinking. He remembered that he was standing at the kitchen sink cutting sausage for pizza, that he heard a noise, that he turned around with the knife still in his hand, and that "the knife went into * * * [Robert]." Defendant also remembered going to Klein's and Koester's apartments looking for help. He remembered what he was wearing and what his brother was wearing. He recalled throwing the knife against the dining room wall, and flipping over the dining room table. Defendant also recalls talking to police officers and answering questions when they arrived. Although one of the police officers thought that defendant was intoxicated, the record overall indicates that he was not so intoxicated that he was not fully aware of the events taking place around him.
The only expert testimony presented at trial regarding the issue of intoxication was that of a deputy coroner. A blood sample taken from the victim at the hospital revealed an ethyl alcohol content of ".24 grams per cent [ sic]." The deputy coroner testified that blood-alcohol levels of ".15 to .25" percent are in the stimulation or excitement stage of intoxication, meaning that "the normal cortical expression of behavior is released." He testified that the next stage of intoxication, produced by blood-alcohol levels of .25 to .35 percent, is the confusion stage. It is characterized by obviously slurred speech and staggering gait. This testimony showed the possible stages of the victim's, not the defendant's, level of intoxication. But even were we to impute this same level of inebriation to defendant, it falls short of negating a conscious awareness of the circumstances and events that transpired on the night of the stabbing.
In view of these facts and circumstances, we cannot say that the trial court acted arbitrarily or unconscionably in refusing to issue a jury instruction on intoxicstion.
For these reasons, the judgment of the court of appeals is reversed, and the verdict of guilty is reinstated.
SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.