State v. Williford

• Decision Date: 14 March 1990
• Docket Number: No. 88-1271,88-1271
• Citation: 551 N.E.2d 1279,49 Ohio St.3d 247
• Parties: The STATE of Ohio, Appellant, v. WILLIFORD, Appellee.
• Court: Ohio Supreme Court

Page 247

49 Ohio St.3d 247

551 N.E.2d 1279

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

No. 88-1271.

Supreme Court of Ohio.

Submitted Nov. 15, 1989.

Decided March 14, 1990.

Syllabus by the Court

1. If a person in good faith and upon reasonable ground believes that a family member is in imminent danger of death or serious bodily harm, such person may use reasonably necessary force to defend the family member to the same extent as the person would be entitled to use force in self-defense. (Sharp v. State [1850], 19 Ohio 379, and State v. Sheets [1926], 115 Ohio St. 308, 152 N.E. 664, approved and followed.)

2. There is no duty to retreat from one's home. (State v. Peacock [1883], 40 Ohio St. 333, approved and followed.)

3. Where the trial court fails to give a complete or correct jury instruction on the elements of the offense charged and the defenses thereto which are raised by the evidence, the error is preserved for appeal when the defendant objects in accordance with the second paragraph of Crim.R. 30(A), whether or not there has been a proffer of written jury instructions in accordance with the first paragraph of Crim.R. 30(A).

Appellee, Hooper Williford, was convicted of voluntary manslaughter in the death of James Robert Carter. The conviction was reversed by the court of appeals and the state has appealed.

The conviction arose from an altercation between appellee and Carter, initiated by Carter. Carter, a large man who worked as a roofer, lived with his girlfriend, Loretta Dunn, Juanita Wenner and Kenneth Wenner on the same street as appellee. The month before the altercation, appellee's wife and Carter had a dispute over a dog belonging to the Wenners.

On the night of November 8, 1986, Carter had been drinking beer. He was intoxicated, with a blood-alcohol content of .15 percent. Carter and a co-worker, Jeffrey Vankirk, were driving down the street in a van. Carter saw appellee in front of appellee's house. He stopped the van. Carter accused appellee's wife of "calling the police on me." The two men went up onto appellee's front porch, which is thirteen feet, two inches wide and six and one-half feet deep. There was conflicting testimony over what happened next.

Vankirk testified that Carter and appellee stood on the porch and argued. He saw appellee's wife come out on the porch and join the argument. A van pulled up in front of appellee's house, momentarily distracting Vankirk. Vankirk testified that he heard three shots in rapid succession, a pause, then a fourth. When the first shot was fired, Vankirk saw Carter flinch and fall. Believing that he was the intended target of the fourth shot, Vankirk fled. Vankirk claimed that no physical altercation preceded the shots, and that Carter never entered appellee's house. On cross-examination, Vankirk admitted a conviction for felonious assault.

Appellee gave a different account. He testified that Carter threatened appellee's wife, saying "I'll shut her god-damn mouth permanently." Appellee ran upstairs and retrieved a .38 caliber revolver from his bedroom. He came back down and found Carter in the front room of the house. Appellee displayed the gun and forced Carter out, onto the porch. When appellee asked Carter to leave, Carter grabbed his gun hand. Appellee fired a warning shot. Carter shoved appellee against the porch railing. Appellee testified that he shot Carter when Carter attacked his wife, who had come out onto the porch.

On cross-examination, appellee was asked, "Do you think he died from the bullet wounds you gave him to the chest when he was lying on the ground?" Appellee answered, "Yes, I do."

Diana Williford, appellee's wife, testified that she saw Carter pushing appellee over the porch railing, and was afraid that Carter was breaking appellee's back. She ran onto the porch and jumped on Carter's back. Carter turned and "picked me up like I was a five pound bag of potatoes, and * * * slung me down hard." While she was trying to get away from Carter, she heard one shot, then "a couple more."

Steven Griffie, appellee's son-in-law, testified that he drove up to appellee's house just as Carter was going up the steps and onto the porch. His wife, Mary Ann Griffie, appellee's daughter, got out of the van and went up to the porch. Steven saw appellee and Carter struggling on the porch railing. He jumped from his van and ran to the porch. Before he reached the porch, he heard one shot, followed by two more in rapid succession. Mary Ann gave testimony consistent with that given by her husband and appellee.

Coroner Dr. Elizabeth Balraj testified that Carter's body exhibited three bullet wounds. One was in the side of his back, and the path of the bullet was consistent with a standing person firing at a standing target. The second was in the right front chest. The third bullet entered the left chest and traveled upward about eight inches. The latter two wounds were determined to have been the cause of death. On redirect examination, Dr. Balraj testified that these wounds were consistent with a standing person firing at Carter while Carter was lying on the ground.

The trial judge charged the jury on murder and the lesser included offense of voluntary manslaughter. The judge gave the standard instructions on self-defense from 4 Ohio Jury Instructions (1989) 82-85, Sections 411.31, 411.33 and 411.35. He did not instruct the jury that appellee had no duty to retreat from his home, or that there is a privilege to defend members of one's family. Appellee's counsel did not proffer written requests for such instructions as provided by Crim.R. 30, but did timely object to the omission of the "no retreat" instruction.

The jury convicted appellee of voluntary manslaughter with a firearm specification. The court of appeals reversed and remanded for a new trial. The court below held that appellee had not properly proffered the requested jury instructions, but that failure to so instruct the jury was plain error. The state appealed.

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

John T. Corrigan, Pros. Atty., and Christa D. Brunst, for appellant.

James R. Willis, Cleveland, for appellee.

HERBERT R. BROWN, Justice.

In the instant case, we must determine whether the failure to instruct the jury on retreat and defense of family was error, and, if so, whether the errors were preserved for appeal. We answer these questions in the affirmative and affirm the decision by the court of appeals.

I

Under Ohio law, self-defense is an affirmative defense. State v. Martin (1986), 21 Ohio St.3d 91, 21 OBR 386, 488 N.E.2d 166, affirmed Martin v. Ohio (1987), 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267. To establish self-defense, the defendant must show " * * * (1) * * * [he] was not at fault in creating the situation giving rise to the affray; (2) * * * [he] has [sic ] a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of * * * force; and (3) * * * [he] must not have violated any duty to retreat or avoid the danger. * * *" State v. Robbins (1979), 58 Ohio St.2d 74, 12 O.O.3d 84, 388 N.E.2d 755, paragraph two of the syllabus. The defendant is privileged to use that force which is reasonably necessary to repel the attack. State v. McLeod (1948), 82 Ohio App. 155, 157, 37 O.O.3d 522, 522-23, 80 N.E.2d 699, 700. "If the defendant fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense." (Emphasis sic.) State v. Jackson (1986), 22 Ohio St.3d 281, 284, 22 OBR 452, 455, 490 N.E.2d 893, 897, certiorari denied (1987), 480 U.S. 917, 107 S.Ct. 1370, 94 L.Ed.2d 686.

The jury instruction in the instant case correctly explained this basic standard. Appellee agrees, but argues that there should have been a further instruction that he was privileged to defend the members of his family, and that he was under no duty to retreat from his home.

Defense of Family

Ohio law has long recognized a privilege to defend the members of one's family. Sharp v. State (1850), 19 Ohio 379, 387 ("It is conceded that parent and child, husband and wife, master and servant would be excused, should they even kill an assailant in the necessary defense of each other."); State v. Sheets (1926), 115 Ohio St. 308, 309, 152 N.E. 664. As the court of appeals stated, if appellee, "in the careful and proper use of his faculties, in good faith and upon reasonable ground believed that his wife and family were in imminent danger of death or serious bodily harm * * * [appellee] was entitled to use such reasonably necessary force, even to the taking of life, to defend his wife and family as he would be entitled to use in defense of himself."

Appellee presented testimony that Carter was threatening Mrs. Williford with physical harm from the beginning of the altercation. A properly instructed jury, if it believed this testimony, could have found that appellee was acting in defense of his wife throughout the altercation. Further, appellant has never contended that Mrs. Williford would not have been privileged to use force in her own defense. The failure to instruct on defense of family was error.

No Duty to Retreat

In most circumstances, a person may not kill in self-defense if he has available a reasonable means of retreat from the confrontation. Jackson, supra, at 283-284, 22 OBR at 454, 490 N.E.2d at 896; Robbins, supra, at 79-81, 12 O.O.3d at 87-88, 388 N.E.2d at 758-759; Marts v. State (1875), 26 Ohio St. 162, 167-168. However, "[w]here one is assaulted in his home, or the home itself is attacked, he may use such means as are necessary to repel the assailant from the house, or to prevent his forcible entry, or material injury to his home, even to the taking of life." State v. Peacock (1883), 40 Ohio St. 333, 334. Implicit in this statement of law is the rule that there is...