State v. Harris, 97APA11-1506.

• Decision Date: 25 August 1998
• Docket Number: No. 97APA11-1506.,97APA11-1506.
• Citation: 718 NE 2d 488,129 Ohio App.3d 527
• Parties: The STATE of Ohio, Appellee, v. HARRIS, Appellant.
• Court: Ohio Court of Appeals

129 Ohio App.3d 527

718 NE 2d 488

The STATE of Ohio, Appellee, v. HARRIS, Appellant.^*

No. 97APA11-1506.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided August 25, 1998.

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Ronald J. O'Brien, Franklin County Prosecuting Attorney, and Thomas K. Lindsey, Assistant Prosecuting Attorney, for appellee.

Judith M. Stevenson, Franklin County Public Defender, and John W. Keeling, Assistant Public Defender, for appellant.

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LAZARUS, Judge.

Defendant-appellant, Jessie R. Harris, appeals from the judgment of the Franklin County Court of Common Pleas convicting him of murder for the death of Gary Greer during an altercation at a bar in Columbus, Ohio. Because we find that the trial court failed to fully instruct the jury on the privilege of coming to the defense of another, we reverse.

On February 6, 1997, appellant was indicted on a single count of aggravated murder in violation of R.C. 2903.01. Appellant pleaded not guilty to the charge, and a jury trial commenced on October 15, 1997.

At trial, the prosecution presented evidence from numerous witnesses tending to show that appellant purposefully struck and killed Gary Greer with a baseball bat during a fight at the Aragon Lounge on the evening of December 22, 1996. According to the witnesses for the prosecution, appellant's friend, Joe West, started the fight at the bar and Greer was not involved in the fight when appellant struck him. By way of defense, appellant admitted to striking Greer with the bat but contended that he did so in self-defense, in defense of his mother, and in defense of his friend Joe West.

In particular, appellant testified as follows. On the night in question, appellant and his friend, Joe West, went to a Christmas party at the Aragon Lounge, where appellant's mother worked as a bartender. While there, West and another patron began arguing near the jukebox. This patron began to push West as other patrons started to gather around West. At the request of his mother and in an attempt to avoid trouble, appellant intervened and escorted West toward a back exit of the bar, where they were closely followed by a group of bar patrons. As he was leading West out the door, appellant saw a brick coming toward him (apparently from outside the bar) and he ducked. The brick subsequently struck West in the side of the head. At that point, appellant turned toward the brickthrower, identified by appellant as the victim Gary Greer, and grabbed him in a bear hug. This prompted Greer to state, "Let me the fuck go before I cut your fucking heart out." Appellant responded by striking Greer with an elbow and was about to hit Greer again when appellant was grabbed from behind by another, unidentified person. While appellant wrestled with this person, a third person approached and hit appellant with a baseball bat. Appellant eventually wrestled the bat away, causing his assailants to retreat. Appellant then headed toward his friend, West. As he approached, he saw that West and his mother both were being "stomped on" and kicked by several persons, including Greer. Appellant testified that at this point, he saw that Greer, who was standing between West and appellant's mother, had a knife in his hand. Appellant swung the bat at Greer intending to strike Greer in the shoulder in order to make him drop his weapon. However, by accident or because Greer ducked, appellant struck Greer in the head, and Greer fell to the ground. According to appellant, he never intended to kill Greer, but believed that striking Greer with the bat was the only action he could take to protect his mother and West from being harmed or possibly being killed.

The testimony of Joe West and Frankie Moore, while not completely consistent with that of appellant, coincided with the basic facts of appellant's story. West testified that the argument in the bar was started when one of the other bar patrons wrongfully accused West of playing her songs on the jukebox, that this patron began to shove him, that he never retaliated in the bar, and that he was struck by a brick and other thrown objects as he was forced from the bar by appellant and the crowd. As to the events outside of the bar, West testified that during the fight he saw Frankie Moore come out of the bar toward him, but that both he and Moore found themselves on the ground being held down and stomped by various people. West further stated that he was cut by a knife during the melee, but that he never saw Greer with a knife, could not confirm that Greer was involved in the fighting, and did not see the appellant strike Greer with the bat. Similarly, Frankie Moore testified that in trying to come to the aid of West, she was struck, fell to the ground, and was kicked and stomped. While she also testified that Greer was one of the persons beating her and West, she did not see a knife and did not see appellant strike Greer with the bat.

At the conclusion of the evidence, the trial court instructed the jury on the offense of aggravated murder, the lesser offense of murder, the privilege of selfdefense, and the privilege of coming to the defense of another as it related to appellant's mother Frankie Moore. The trial court rejected, however, appellant's request that the jury be instructed on the lesser offense of voluntary manslaughter and the privilege of coming to the defense of another as it related to West.

The jury returned a guilty verdict on the lesser offense of murder, and the trial court sentenced appellant to an indefinite prison term of fifteen years to life. Appellant now appeals, raising the following four assignments of error:

1. "The trial court erred when it denied the defendant's request for a charge to the jury on the lesser offense of voluntary manslaughter and further erred when it failed to charge the jury on the lesser offense of involuntary manslaughter."

2. "The trial court erred when it overruled the defendant's request to charge the jury on the law of the defense of another as it pertained to the defense of the defendant's friend, Joseph West."

3. "The trial court erred when it charged the jurors that they could infer that the defendant acted to purposely cause the death of the decedent, gave improper instruction on the duty of Frankie Moore to retreat, and improperly instructed the jurors on the inferences it could not draw from the words used by the decedent."

4. "The trial court erred when it allowed the state, over the objection of the defendant, to introduce irrelevant testimony designed to create sympathy, unfair prejudice, and bias."

In his first assignment of error, appellant contends that the trial court erred in failing to charge the jury on the lesser offenses of voluntary manslaughter and involuntary manslaughter. We disagree.

As to the offense of involuntary manslaughter, appellant's trial counsel never requested that the trial court instruct the jury on such a charge. As a result, the appellant has waived the issue on appeal absent a showing of plain error. Crim.R. 30(A); Crim.R. 52(B); see, also, State v. Underwood (1983), 3 Ohio St.3d 12, 13, 3 OBR 360, 361, 444 N.E.2d 1332, 1333 ("Absent plain error, the failure to object to improprieties in jury instructions, as required by Crim. R. 30, is a waiver of the issue on appeal"). To constitute plain error, the error must be obvious on the record, palpable, and fundamental, so that it should have been apparent to the trial court without objection. See State v. Tichon (1995), 102 Ohio App.3d 758, 767, 658 N.E.2d 16, 22. Moreover, plain error does not exist unless the appellant establishes that the outcome of the trial clearly would have been different but for the trial court's allegedly improper actions. State v. Waddell (1996), 75 Ohio St.3d 163, 166, 661 N.E.2d 1043, 1045-1046. Notice of plain error is to be taken with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Phillips (1995), 74 Ohio St.3d 72, 83, 656 N.E.2d 643, 657; State v. Ospina (1992), 81 Ohio App.3d 644, 647, 611 N.E.2d 989, 991.

Appellant cannot show a manifest miscarriage of justice in this case. Where a defendant fails, based upon tactical considerations, to object to the instructions of the trial court, the defendant cannot claim plain error on appeal. State v. Clayton (1980), 62 Ohio St.2d 45, 16 O.O.3d 35, 402 N.E.2d 1189; State v. Edwards (1985), 26 Ohio App.3d 199, 26 OBR 420, 499 N.E.2d 352. There is a strong presumption that trial counsel's failure to request an instruction on lesser offenses is a matter of trial strategy. See State v. Griffie (1996), 74 Ohio St.3d 332, 333, 658 N.E.2d 764, 765-766. This is especially true when the defendant claims self-defense, because an instruction on the lesser offense may confuse the jury with inconsistent theories of the defense and/or reduce the hope of attaining a complete acquittal. State v. Moore (1994), 97 Ohio App.3d 137, 149-150, 646 N.E.2d 470, 477-479; State v. Catlin (1990), 56 Ohio App.3d 75, 78-79, 564 N.E.2d 750, 754-755; see, also, State v. Baker (1996), 111 Ohio App.3d 313, 324, 676 N.E.2d 143, 150 ("It is reasonable trial strategy to argue self-defense and not request an instruction on an inferior degree offense or lesser included offense").

Likewise, trial counsel's failure to request an instruction on involuntary manslaughter in this case fell reasonably within the realm of trial strategy. At trial, appellant advanced a two-prong defense: (1) that he acted in defense of himself and others and (2) that he did not intend to kill the victim. Had the jury believed either assertion, it would have been required to completely acquit the defendant on the sole charges instructed, i.e., aggravated murder and murder. However, had involuntary manslaughter been an option, the jury could have convicted him of that offense had it failed (for whatever reason) to accept the...