State v. Clayton

• Decision Date: 09 April 1980
• Docket Number: No. 79-1166,79-1166
• Citation: 402 N.E.2d 1189,16 O.O.3d 35,62 Ohio St.2d 45
• Parties: , 16 O.O.3d 35 The STATE of Ohio, Appellant, v. CLAYTON, Appellee.
• Court: Ohio Supreme Court

Page 45

62 Ohio St.2d 45

402 N.E.2d 1189, 16 O.O.3d 35

The STATE of Ohio, Appellant, v. CLAYTON, Appellee.

No. 79-1166.

Supreme Court of Ohio.

April 9, 1980.

This appeal stems from defendant-appellee's conviction on two counts of attempted murder. At trial, appellee's counsel requested that the judge instruct the jury on attempted murder and self-defense. ¹ After receiving concurrent sentences of 7-25 years on each count, appellee appealed his conviction and claimed, inter alia, that the trial court erred in charging the jury on self-defense and in failing to charge on lesser-included offenses and that he was denied effective assistance of counsel. The Court of Appeals agreed and reversed the trial court's judgment and remanded the cause for a new trial.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., and Regis E. McGann, Cleveland, for appellant.

Albert L. Purola, Willoughby, for appellee.

PER CURIAM.

In this cause, we must resolve the questions of whether the trial court committed plain error when it failed to instruct on lesser-included offenses (see Crim.R. 52) and whether the defendant received effective assistance of counsel at the trial level.

The facts surrounding this cause are essentially as follows. Appellee, Richard J. Clayton, became involved in a dispute with his wholesale tropical fish supplier, Carmen Zagaria. Appellee claimed that Zagaria had vandalized his fish store, whereas Zagaria claimed that appellee owed him money. When Zagaria went to the store on the morning of September 30, 1976, with a companion, an argument ensued. Appellee was punched by Zagaria several times and was knocked to the floor twice. Zagaria and his companion left the store and got into their car. Thereupon, appellee armed with a gun proceeded to fire numerous rounds at the car once from his doorway and several times as he approached the vehicle. Both occupants of the car were injured and as Zagaria's companion attempted to escape he was shot in the back. A witness who was present at the time of the incident claims to have heard appellee say, before the shooting occurred, "I'll kill 'em," or "I'll shoot 'em or something you know."

The record shows that during its deliberations the jury asked the court whether a fit of anger would have any bearing on whether appellee was guilty. The court informed the foreman that the jury had all the law necessary to make its decision. As previously noted, appellee's trial counsel limited his jury instructions and did not raise a Crim.R. 30 objection. Counsel appears to have been engineering a strategy to obtain his client's acquittal by limiting the instruction. This strategy proved to be unsuccessful.

I.

In State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, we set the background for the plain-error issue, and the discussion in Long concerning Crim.R. 30 and 52(B) is relevant to this cause. Any consideration of plain error must start with the admonition that "(n)otice of plain error * * * is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Long, supra, paragraph three of the syllabus.

It suffices to say that plain error is not easily or readily definable and that each case must be considered on its own facts. In the case sub judice, it is evident that trial counsel's strategy was to seek a total acquittal for his client. In State v. Wolery (1976), 46 Ohio St.2d 316, 348 N.E.2d 351, we had occasion to discuss plain error as it related to trial strategy. In Wolery, the claimed error was in admitting evidence which was damaging to the defendant. As in the case sub judice, the testimony was admitted without objection. In Wolery, Justice Paul Brown, at page 327, 348 N.E.2d at page 359, stated:

" * * * this omission was the result of a deliberate, tactical decision of trial counsel. * * * Appellant and his counsel apparently believed that the admission of the evidence in question would so detract from the credibility of (the) witnesses * * * as to render their entire testimony incapable of belief. Appellant cannot now claim the protection of Crim.R. 52(B) to negate the effect of this tactical decision."

This same reasoning applies to the instant cause. ² The circumstances we are presented with are similar to those in United States v. Meyers (C.A. 9, 1971), 443 F.2d 913, 914, where the Court of Appeals stated: "In light of the appellant's failure to request such an instruction, the omission must be considered a matter of trial strategy and not error. The jury was instructed to find the defendant not guilty if it determined that the calculator was worth less than $100. The defendant elected to seek acquittal rather than to invite conviction of the lesser offense."

Counsel's decision to limit the instruction to attempted murder and his client's subsequent conviction do not amount to a manifest miscarriage of justice and are not plain error.

II.

In State v. Hester (1976), 45 Ohio St.2d 71, 341 N.E.2d 304, this court stated in paragraph four of the syllabus: "The test in determining if the accused had effective retained counsel is whether the accused, under all the circumstances, including the fact that he had retained counsel, had a fair trial and substantial justice was done."

Looking at all the circumstances of this case, particularly the fact that defense counsel made a tactical choice not to include an instruction on attempted voluntary manslaughter, we cannot, in retrospect, state that counsel ineffectively assisted his client. Although a tactical error may have been made, we cannot state that substantial justice was not done.

Similar results were obtained in United States v. Denno (C.A. 2, 1963), 313 F.2d 364, certiorari denied 372 U.S. 978, 83 S.Ct. 1112, 10 L.Ed.2d 143; People v. Gauze (Ct.App.1975), 43 Cal.App.3d 967, 118 Cal.Rptr. 220; and People v. Miller (1972), 7 Cal.3d 562, 102 Cal.Rptr. 841, 498 P.2d 1089. In Denno, defense counsel advised his client to confess, and the court, at pages 373, 374, stated: "Hindsight, of course, tells us that the advice to confess ill served the defendant * * *," and that "(p)oor tactics of experienced counsel, however, even with disastrous result, may hardly be considered lack of due process * * * ."

In Gauze, supra, the defendant was convicted of burglary and assault with a deadly weapon. There was a question as to his sanity. The court, 118...