State v. Cotton, No. 77-1483

CourtUnited States State Supreme Court of Ohio
Writing for the CourtHERBERT; LEACH; STEPHENSON, J., of the Fourth Appellate District, sitting for PAUL W. BROWN
Citation381 N.E.2d 190,56 Ohio St.2d 8,10 O.O.3d 4
Parties, 10 O.O.3d 4 The STATE of Ohio, Appellee, v. COTTON, Appellant.
Docket NumberNo. 77-1483
Decision Date04 October 1978

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56 Ohio St.2d 8
381 N.E.2d 190, 10 O.O.3d 4
The STATE of Ohio, Appellee,
v.
COTTON, Appellant.
No. 77-1483.
Supreme Court of Ohio.
Oct. 4, 1978.
[381 N.E.2d 192]
Syllabus by the Court

1. In a capital case prosecuted under R.C. 2903.01(A), "prior calculation and design" is a more stringent element than the "deliberate and premeditated malice" which was required under prior law. R.C. 2903.01(A), construed.

2. Instantaneous deliberation is not sufficient to constitute "prior calculation and design."

3. Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified.

4. R.C. 2931.01 is ineffective to disqualify a judge of the Probate Division of the Court of Common Pleas from serving in criminal cases. R.C. 2931.01, construed.

On February 23, 1976, appellant, Charles D. Cotton, was indicted for, Inter alia, aggravated murder with specifications. The indictment specifically charged that appellant: (1) uttered, or possessed with intent to utter, a check of another which he knew to have been forged; (2)

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purposely and with prior calculation and design caused the death of another, with the specification that the offense was committed for the purpose of escaping apprehension for another offense, and with a second specification that the victim of

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the offense was a law enforcement officer while engaged in his duties; and (3) knowingly caused physical harm to another by means of a deadly weapon.

Appellant entered a plea of not guilty to each count on March 10, 1976. On April 29, 1976, appellant waived his right to a jury trial in open court and the court ordered that the trial be before a three-judge panel.

The evidence adduced at trial established that on February 6, 1976, appellant and his wife entered the T & A Thrift Market to buy groceries. Mrs. Cotton had in her possession a checkbook belonging to Thelma Miller and she removed one of the checks and signed Thelma Miller's name to it. The assistant manager previously had received a report that Thelma Miller's checkbook had been stolen and, when Mrs. Cotton presented the check in payment for the groceries, he called the police to ascertain the status of the check. After waiting for a few moments, Mrs. Cotton presented a Master Charge card bearing Thelma Miller's name to pay for the groceries. Appellant then took the grocery basket out to his car, unloaded it and returned to the store where his wife was waiting. Two uniformed police officers, Michael R. Hutchison and Roger W. Casler, then entered the store. Appellant ran from the store and both officers proceeded after him. Officer Hutchison slipped and fell inside the store and Officer Casler caught up with appellant outside in the parking lot. At this point, Officer Casler lost his footing, was hit by appellant and fell, striking his head on the concrete. He was "dazed" by the fall. After again catching appellant, Officer Casler did not draw his gun, but appellant took the gun from Officer Casler's holster. During the scuffle, appellant was able to steady the weapon and fire. The first shot hit Officer Hutchison in the arm and he said, "I have been shot."

The scuffle between appellant and Officer Casler continued. Both went down and Officer Casler remained down. Two more shots were fired, one going into the back of Officer Casler. It was stopped by a bullet-proof vest.

[381 N.E.2d 193] Appellant than ran towards his car and came to Officer

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Hutchison, who had apparently been felled by his wound. Appellant stopped, assumed a shooting position, held the gun with both hands and fired the fatal shot down into Officer Hutchison, who was apparently attempting to crawl. Appellant then left the scene with both officers' guns.

Appellant and his wife, child and nephew were stopped in appellant's car not longer after the episode had occurred. The car was searched and the two police pistols were subsequently discovered: one in Mrs. Cotton's purse and the other in a diaper bag. No other weapons were found.

The three-judge panel unanimously found appellant guilty of all counts and specifications charged in the indictment. Following a mitigation hearing, appellant was sentenced to death on the aggravated murder with specifications charge, to 2 to 5 years on the forgery charge and to 5 to 15 years on the felonious assault charge, all to run consecutively.

On October 26, 1977, the Court of Appeals affirmed the judgment of the trial court. The cause came before this court as a matter of right.

William F. McKee, Pros. Atty., for appellee.

Mestel, Cummings & Benson, and Sanders J. Mestel, Canton, for appellant.

HERBERT, Justice.

Appellant asserts six propositions of law. First, he argues that the trial court erred in overruling his renewed motion for acquittal at the close of all evidence, alleging that there was insufficient evidence upon which a reasonable mind might fairly conclude that appellant was guilty of aggravated murder beyond a reasonable doubt.

R.C. 2903.01 states in pertinent part:

"(A) No person shall purposely, and with prior calculation and design,...

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334 practice notes
  • State v. Sekulic, No. 2016CA00135
    • United States
    • United States Court of Appeals (Ohio)
    • June 12, 2017
    ...the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified." State v. Cotton , 56 Ohio St.2d 8, 10 O.O.3d 4, 381 N.E.2d 190 (1978), paragraph three of the syllabus. Accord, State v. Braden , 98 Ohio St.3d 354, 785 N.E.2d 439, 2003-Ohio-1325 ......
  • Davis v. Shoop, Case No. 2:16-cv-495
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 16, 2020
    ...v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); State v. Robbins, 58 Ohio St. 2d 74 (1979); State v. Cotton, 56 Ohio St. 2d 8 (1978). Davis claims that the last reasoned state court opinion was Davis II, in which the Supreme Court of Ohio did not address whether Davis ......
  • State v. Hundley, No. 2018-0901
    • United States
    • United States State Supreme Court of Ohio
    • July 22, 2020
    ...of "prior calculation and design" requires proof of "a scheme designed to implement the calculated decision to kill." State v. Cotton , 56 Ohio St.2d 8, 11, 381 N.E.2d 190 (1978). "The amount of care or time that the defendant spends in planning and analyzing the crime are not critical fact......
  • Goodwin v. Johnson, Nos. 06–3571
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 21, 2011
    ...more than a few moments of deliberation; it requires “a scheme designed to implement the calculated decision to kill.” State v. Cotton, 56 Ohio St.2d 8, 381 N.E.2d 190, 193 (1978). Although “[n]either the degree of care nor the length of time the offender takes to ponder the crime beforehan......
  • Request a trial to view additional results
334 cases
  • State v. Sekulic, No. 2016CA00135
    • United States
    • United States Court of Appeals (Ohio)
    • June 12, 2017
    ...the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified." State v. Cotton , 56 Ohio St.2d 8, 10 O.O.3d 4, 381 N.E.2d 190 (1978), paragraph three of the syllabus. Accord, State v. Braden , 98 Ohio St.3d 354, 785 N.E.2d 439, 2003-Ohio-1325 ......
  • Davis v. Shoop, Case No. 2:16-cv-495
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 16, 2020
    ...v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); State v. Robbins, 58 Ohio St. 2d 74 (1979); State v. Cotton, 56 Ohio St. 2d 8 (1978). Davis claims that the last reasoned state court opinion was Davis II, in which the Supreme Court of Ohio did not address whether Davis ......
  • State v. Hundley, No. 2018-0901
    • United States
    • United States State Supreme Court of Ohio
    • July 22, 2020
    ...of "prior calculation and design" requires proof of "a scheme designed to implement the calculated decision to kill." State v. Cotton , 56 Ohio St.2d 8, 11, 381 N.E.2d 190 (1978). "The amount of care or time that the defendant spends in planning and analyzing the crime are not critical fact......
  • Goodwin v. Johnson, Nos. 06–3571
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 21, 2011
    ...more than a few moments of deliberation; it requires “a scheme designed to implement the calculated decision to kill.” State v. Cotton, 56 Ohio St.2d 8, 381 N.E.2d 190, 193 (1978). Although “[n]either the degree of care nor the length of time the offender takes to ponder the crime beforehan......
  • Request a trial to view additional results

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