State v. Clark

• Decision Date: 24 August 1988
• Docket Number: No. 87-327,87-327
• Citation: 527 N.E.2d 844,38 Ohio St.3d 252
• Parties: The STATE of Ohio, Appellee, v. CLARK, Appellant.
• Court: Ohio Supreme Court

Page 252

38 Ohio St.3d 252

527 N.E.2d 844

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

No. 87-327.

Supreme Court of Ohio.

Submitted May 4, 1988.

Decided Aug. 24, 1988.

Anthony G. Pizza, Pros. Atty., James D. Bates and Michael A. Bruno, Toledo, for appellee.

Thomas P. Kurt, Toledo, for appellant.

PER CURIAM.

As in all death penalty cases brought before this court, we are required to undertake a three-prong analysis. First, we will consider the specific issues raised by the appellant with regard to the proceedings below. Second, we must independently weigh the aggravating circumstance in this case against any factors which mitigate against the imposition of the death sentence. Third, we must independently consider whether appellant's sentence is disproportionate to the penalty imposed in similar cases.

In his first proposition of law, appellant argues that under R.C. 2929.04(B), the state may not introduce evidence of a capital defendant's prior criminal convictions in the mitigation hearing unless the defendant has placed in issue his lack of a criminal record. Appellant submits that to allow the state to bring in such evidence on its own initiative is tantamount to allowing a non-statutory aggravating circumstance to go to the jury in contravention to this court's decision in State v. Johnson (1986), 24 Ohio St.3d 87, 24 OBR 282, 494 N.E.2d 1061.

At the mitigation hearing, it was brought out that appellant had a prior felony record consisting of two robbery convictions, as well as convictions for grand theft, breaking and entering, and escape. Appellant's character witnesses at the mitigation hearing were cross-examined with respect to appellant's record, and after the trial court ruled extrinsic evidence of the convictions admissible, the parties stipulated to appellant's prior record.

R.C. 2929.03(D)(1) places the burden of going forward with evidence of mitigating factors on the defense. R.C. 2929.04(B) provides in relevant part:

"[T]he court, trial jury, or panel of three judges shall consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense, the history, character, and background of the offender, and all of the following [mitigating] factors * * *."

Since the statute makes the consideration of history, character and background evidence of the offender mandatory, the state contends that such evidence of history and background (i.e., prior record) is admissible regardless of whether appellant places his history, character or background in issue.

In our view, if the appellant in fact carries his burden of going forward with evidence of mitigating factors, he opens the door for the state to introduce rebuttal evidence. In the instant cause, while appellant did not attempt to prove the lack of a significant prior criminal record, he did introduce evidence of his history, character and background through the testimony of his mother and Dr. Hy P. Kisin. ¹ The testimony of appellant's mother and daughter, Cheryl Stallworth, portrayed appellant as a good father and a quiet, Bible-reading man who lived with his mother. Dr. Kisin's testimony tended to portray appellant as a person with a potential for rehabilitation, and suggested that if appellant were ever released from prison, he would not be dangerous.

We believe that the evidence proffered by appellant in mitigation was in fact evidence of his history, character and background. The evidence submitted by the state in rebuttal was relevant to impeach, for example, Dr. Kisin's opinion of appellant's potential for rehabilitation. The prior criminal record of appellant was relevant to rebut the portrayal of appellant as a quiet, religious man and good father. Likewise, the rebuttal evidence of appellant's prior criminal record was relevant in this context because it completed an otherwise incomplete account of appellant's history and background. Since appellant essentially raised the issue of his history, character and background, he "opened the door" to all evidence relevant thereto. See Evid.R. 405(B). Since such evidence was offered in order to refute appellant's mitigation evidence, we hold that the introduction of appellant's prior criminal record here was relevant and admissible for this purpose. Therefore, we affirm the court of appeals on this issue.

In his second proposition of law, appellant contends that the trial court erred in not instructing the jury on the lesser included offense of involuntary manslaughter. Appellant argues that a reasonable jury could have entertained a reasonable doubt as to the element of purpose under the evidence submitted in this case.

In his taped confession to the police, appellant neither admitted nor denied his intent to kill the victim. He did state, however, that the victim "tried to force his way on me," and "tried to grab me." Appellant submits that a reasonable jury could have believed this scenario, and could have concluded that the appellant pulled the trigger accidentally out of surprise at the victim's reaction; or that he fired the revolver to wound the victim; or that he fired in order to frighten the victim. In support of these theories, appellant suggests that the victim was a belligerent person who would likely fight an armed robber.

This court has held that an instruction on a lesser included offense should only be given where the evidence warrants such an instruction. State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, certiorari denied (1985), 472 U.S. 1032, 105 S.Ct. 3514, 87 L.Ed.2d 643; State v. Thompson (1987), 33 Ohio St.3d 1, 12, 514 N.E.2d 407, 418; State v. Johnson (1988), 36 Ohio St.3d 224, 226, 522 N.E.2d 1082, 1084. An offense is deemed to be a lesser included offense of another if it is of a lesser degree than the other; if the greater offense cannot be committed without the lesser offense being committed; and where the greater offense requires proof of an element that is not an element of the lesser offense. State v. Wilkins (1980), 64 Ohio St.2d 382, 18 O.O.3d 528, 415 N.E.2d 303; State v. Kidder (1987), 32 Ohio St.3d 279, 513 N.E.2d 311. Even if commission of the greater offense necessarily entails commission of the lesser, the lesser offense is included only if, under the facts of the case, the trier of fact could reasonably find against the state and for the accused upon one or more elements of the crime charged, and for the state and against the accused on the remaining elements, which by themselves would sustain a conviction upon a lesser included offense. Wilkins, supra; Kidder, supra. Involuntary manslaughter may, if the facts warrant, be a lesser included offense of murder. See State v. Johnson (1983), 6 Ohio St.3d 420, 6 OBR 466, 453 N.E.2d 595. Since murder and aggravated murder differ only by the additional elements required to prove aggravated murder, cf. R.C. 2903.01(B) and 2903.02(A), involuntary manslaughter can also, under the proper facts, be a lesser included offense of aggravated murder. Thus, in the cause sub judice, the element of purpose is the key inquiry in determining whether the trial court was correct in not giving the jury an instruction on involuntary manslaughter.

A review of the state's evidence submitted at trial to prove the element of purpose was that the appellant used a drawn, loaded revolver in the robbery and shot the victim in the chest with it. On prior occasions, we have held that the use of an "inherently dangerous instrumentality" in a robbery evinces an intent to kill because "homicide * * * is a natural and probable consequence thereof." State v. Johnson (1978), 56 Ohio St.2d 35, 39, 10 O.O.3d 78, 81, 381 N.E.2d 637, 640; State v. Clark (1978), 55 Ohio St.2d 257, 9 O.O.3d 257, 379 N.E.2d 597.

The testimony offered at trial indicates that the victim and appellant were on different sides of the service counter during the robbery. Before entering the service station, appellant had walked past it, then doubled back behind it, leaving footprints in the snow. When Toledo police officer Alfred Sigura responded to the silent alarm, he saw wet footprints in the service area of the station leading from the door to a soft drink cooler to the right and from there up to the counter, which was to the left of the door. He stated that he found no other (non-police) footprints in the service station. The victim's body was found behind the service counter.

Since Sigura arrived at the service station within thirty seconds after receiving the alarm, the logical inference would be that the wet footprints were appellant's. Since appellant left no footprints on the victim's side of the counter, it is reasonable to assume that he was not ever there. Thus, although the record does not specifically establish that the victim and appellant were separated by the service counter, the testimony indicates that they were.

In applying the pertinent precedents to the facts sub judice, we do not believe that a jury instruction on the lesser included offense was warranted. Appellant's theory that he intended to merely frighten the victim is patently unreasonable. If appellant wanted only to frighten the victim, he clearly would not have fired the gun at the victim's chest. Similarly, we believe that appellant's theory that he shot to wound the victim is also unreasonable. Although defense counsel argued before the jury that the shot might have been aimed at the victim's shoulder, the bullet was moving from the victim's right to his left, indicating that the shot was aimed away from the victim's right shoulder. On balance, however, because the wound was located in a vital area of the victim's body, we are unpersuaded that appellant's theory of shooting to wound is worthy of any merit under the evidence. In addition, we reject appellant's theory that the victim's movement surprised appellant into firing the revolver unintentionally. A careful review of the...