402 N.E.2d 1189 (Ohio 1980), 79-1166, State v. Clayton

Docket Nº:79-1166.
Citation:402 N.E.2d 1189, 62 Ohio St.2d 45
Opinion Judge:Per Curiam.
Party Name:The STATE of Ohio, Appellant, v. CLAYTON, Appellee.
Attorney:John T. Corrigan, Pros. Atty., and Regis E. McGann, Cleveland, for appellant., Albert L. Purola, Willoughby, for appellee. Mr. John T. Corrigan, prosecuting attorney, and Mr. Regis E. McGann, for appellant., Mr. Albert L. Purola, for appellee.
Case Date:April 09, 1980
Court:Supreme Court of Ohio

Page 1189

402 N.E.2d 1189 (Ohio 1980)

62 Ohio St.2d 45

The STATE of Ohio, Appellant,


CLAYTON, Appellee.

No. 79-1166.

Supreme Court of Ohio.

April 9, 1980

Page 1190

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. [62 Ohio St.2d 46]

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

Albert L. Purola, Willoughby, for appellee.


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...

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