State v. Jenkins

• Citation: 355 N.E.2d 825,48 Ohio App.2d 99
• Decision Date: 08 April 1976
• Docket Number: No. 34198,34198
• Parties: , 2 O.O.3d 73 The STATE of Ohio, Appellee, v. JENKINS, Appellant.
• Court: United States Court of Appeals (Ohio)

Page 99

48 Ohio App.2d 99

355 N.E.2d 825, 2 O.O.3d 73

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

No. 34198.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

April 8, 1976.

Syllabus by the Court

1. R.C. 2903.01(A) requires the state to prove beyond a reasonable doubt that the defendant purposely caused the death of another with 'prior calculation and design.' 'Prior calculation and design' sets up a new and more demanding standard than the old first degree murder standard of 'deliberate and premeditated malice.' 'Prior calculation and design' require some kind of studied analysis with its object being to cause the death of another. Momentary premeditation is no longer sufficient.

2. In a case in which an accused asserts an affirmative defense, a trial court is not, for that reason alone, prevented per se from considering the degree of homicidal guilt. With respect to the element of prior calculation and design, which separates aggravated murder from its lesser included offense of murder, the jury, once having rejected the affirmative defense of self-defense, could reasonably have concluded either that prior calculation and design had been proved or it had not. Under such circumstances the lesser included offense should have been charged to the jury.

John

T. Corrigan, Pros. Atty., Cleveland, for appellee.

Michael J. Occhionero, Cleveland, for appellant.

MANOS, Judge.

The defendant-appellant, Richard Jenkins, appeals from the trial court's judgment following his conviction by jury on one count of aggravated murder, R.C. 2903.01.

On July 14, 1974 at approximately 10:30 p. m. a shooting incident occurred on the west side of Cleveland that resulted in the death of Patrick Kosman. The prosecution presented evidence from nine eyewitnesses who testified to what occurred that night. The substance of their testimony was as follows: The defendant was standing in the street next to his parked car talking to some friends when Mr. Kosman, the victim, drove by. Kosman was intoxicated and told the defendant, in effect, to get out of the street. The defendant responded by telling Kosman to pull his car over, which he did. The defendant then walked to his car and took a 'pump' shotgun out of the trunk. He walked to the front of his car and fired one shot into the trunk of Kosman's car. The evidence is in conflict as to whether Kosman was in the car or just getting out when the first shot was fired. Kosman moved toward the defendant (who was about 25 feet away) and was shot, spun around, and was shot again. The defendant then got into his car and drove off.

The defendant's uncorroborated testimony was that Kosman had a gun and that he had gotten out of his car and moved menacingly toward him. The defendant testified that he had fired a warning shot into the parked car and that he then shot Kosman as Kosman went for his gun. The defendant claimed that he acted in self-defense.

The trial court charged the jury on aggravated murder and self-defense. The jury returned a verdict finding the defendant guilty of aggravated murder.

The appellant assigns six errors as follows:

'1. The judgment of the trial court finding the defendant guilty of aggravated murder is against the maniweight of the evidence and contrary to law.

'2. The trial court erred in overruling defendant's renewed motion for acquittal at the close of all evidence, in that there was insufficient evidence upon which a reasonable mind might fairly conclude that the defendant was guilty of aggravated murder beyond a reasonable doubt.

'3. The trial court erred in overruling defendant's motion for acquittal at the close of the prosecution's evidence, in that there was insufficient evidence upon which a reasonable mind might fairly conclude that the defendant was guilty of aggravated murder beyond a reasonable doubt, in violation of defendant's constitutional privilege against self-incrimination, and due process of law.

'4. The trial court committed prejudicial error in failing to instruct the jury upon the lesser included offenses of murder and voluntary manslaughter, contrary to law and in denial of due process of law.

'5. The trial court committed prejudicial and reversible error when it instructed the jury upon the issue of self-defense that 'if the defendant had reasonable grounds and an honest belief that he was in imminent danger of death and great bodily harm, that the only means of escape from such danger was by killing such assailant * * *' all contrary to law.

'6. The trial court abused its discretion and committed prejudicial error in unduly restricting defendant's cross-examination of prosecution witnesses, through which defendant was endeavoring to establish the bias and prejudice of said witnesses.'

I.

We find the first assignment of error to be well taken, as the verdict of guilty of aggravated murder was contrary to law.

The newly amended statute, R.C. 2903.01, reads:

'(A) No person shall purposely, and with prior calculation and design, cause the death of another.'

Prior calculation and design sets up a more demanding standard than the old first degree murder standard of 'deliberate and premeditated malice.' ¹ Prior calculation and design requires the accused to have killed purposefully after devising a plan or scheme to kill. There must be some kind of studied analysis with its object being the means by which to kill. The kind of momentary deliberation or instantaneous premeditation that was the accepted standard under the old statute, as exemplified by State v. Schaffer (1960), 113 Ohio App. 125, 177 N.E.2d 534, is no longer sufficient ² or acceptable.

The trier of fact must look to the context in which the killing occurred to determine whether there was prior calculation and design. Some of the important factors to be examined and considered in deciding whether a homicide was committed with prior calculation and design include: whether the accused knew the victim prior to the crime, as opposed to a random meeting, and if the victim was known to him whether the relationship and been strained; whether thought and preparation were given by the accused to the weapon he used to kill and/or the site on which the homicide was to be committed as compared to no such thought or preparation; and whether the act was drawn out over a period of time as against an almost instantaneous eruption of events. These factors must be considered and weighed together and viewed under the totality of all circumstances of the homicide. When the evidence adduced at trial establishes that the victim was unknown to the accused prior to the crime, and that there was little or no preparation, but rather that the crime was an instantaneous eruption of events, then the trial court shall not charge the jury on aggravated murder. If the evidence adduced at trial is legally insufficient to establish any essential element of the crime charged the trial court shall not charge the jury as to that offense. See, State v. Channer (1926), 115 Ohio St. 350, 154 N.E. 728; State v. Manago (1974), 38 Ohio St.2d 223, 313 N.E.2d 10.

With this in mind, we turn to the facts of the case on appeal.

From the record it is clear that the defendant did not know the victim, that there had been no previous disagreement, and that the meeting was at random. ³ There is no evidence to indicate any prior preparation to commit a homicide. The incident was not drawn out but was almost spontaneous. That the defendant went to his car, removed a shotgun, and fired a shot in the trunk of the car and two shots at the victim is not, standing alone, evidence of prior calculation and design. The court therefore was in error in allowing the case to go to the jury on the charge of aggravated murder as the evidence was '* * * insufficient to sustain a conviction of such offense * * *.' Criminal Rule 29(A). The evidence produced was sufficient to sustain a finding of guilty to murder, R.C. 2903.02, as there was evidence that the defendant purposefully killed the deceased.

II.

The second and third assignments of error are without merit except as section one of this opinion applies. The court properly found that there was 'a great deal of evidence' on each of the elements required to convict the defendant of murder. As long as reasonable minds can reach different conclusions on the evidence, then the question is properly one for the jury. State v. Swiger (1966), 5 Ohio St.2d 151, 214 N.E.2d 417.

III.

The fourth and fifth ⁴ assignments of error are without merit as the instructions given by the trial court were not objected to as required by Criminal Rule 30. ⁵

Because of the importance in giving proper instructions to the jury and the confusion as to when an instruction on a lesser included offense is required, we reach the merits of the fourth assignment of error. It is true that the defendant in the trial at bar interposed the affirmative defense of self-defense. Nevertheless, we are not precluded by that fact from permitting the jury to consider the lesser included offense of murder. Despite the fact that the prosecutor has so urged, the rule enunciated in State v. Nolton (1969), 19 Ohio St.2d 133, 135, 249 N.E.2d 797 does not compel us to ignore a record which does not support the degree of homicide of which the accused was ultimately convicted.

In Nolton, the Supreme Court attempted to articulate 'a more...