State v. Juan D. Roberts

• Decision Date: 09 May 1996
• Docket Number: 69310,96-LW-2334
• Parties: STATE OF OHIO, Plaintiff-Appellee v. JUAN D. ROBERTS, Defendant-Appellant
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. JUAN D. ROBERTS, Defendant-Appellant

No. 69310.

96-LW-2334 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

May 9, 1996

Criminal appeal from Common Pleas Court No. CR-310666.

For plaintiff-appellee: STEPHANIE TUBBS JONES, Cuyahoga County Prosecutor, RICHARD J. BOMBIK, Assistant, 8th Floor - Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113.

For defendant-appellant: LARRY W. ZUKERMAN, Fromson & Zukerman 160 Signature Square 1, 25201 Chagrin Boulevard, Cleveland Ohio 44122.

OPINION

O'DONNELL J.

Juan D. Roberts appeals from his jury conviction of involuntary manslaughter with a firearm specification in the shooting death of Gary Austin.

On Saturday, April 2, 1994, around 6:00 p.m., Roberts drove his blue 1983 Oldsmobile Delta 88 slowly through Gordon Park in Cleveland, looking for his friend, Ogden Tatum. Roberts noticed a group of approximately 30-40 people congregated on a grassy hill adjacent to the parking areas. one member of that group, Kenneth Brown, who was standing at the curb, next to the victim, Gary Austin, suddenly threw a full glass bottle of Seagrims Gin and Juice, which shattered on the right rear quarter panel of Roberts' car. Roberts, then turned his vehicle around, and while slowly heading towards the exit, took a 380 caliber semi-automatic handgun from under his seat, laid it across his left arm, pointed it out the drivers' side window of the car and fired three times into the crowd. One of the bullets struck Gary Austin in the head and killed him. The bullet traveled through Austin's head, entering Austin's left temple and exiting his right temple, slightly upwards and towards the front of his head.

Roberts immediately sped from the scene, as Austin's friends rushed him to Mt. Sinai Hospital, where at 6:20 p.m., doctors pronounced him dead.

The next day, upon hearing news reports of Austin's death, Roberts got scared and left for Atlanta, Georgia, that evening.

Several members of the group at Gordon Park, after viewing a photo array at the police station, identified Roberts as the gunman. Thereafter, on May 12, 1994, the grand jury indicted Roberts for murder and because his whereabouts were unknown, the court issued a capias for his arrest.

Almost a year later, on January 8, 1995, Atlanta authorities arrested Roberts and returned him to Cleveland for trial.

At trial, Roberts testifying in his defense, maintained that on June 2, 1994, while at Gordon Park, he fired a gun into the air, trying to scare the crowd of people gathered there. The jury, however, after hearing all the evidence, found Roberts not guilty of murder, but guilty of the lesser but included offense of involuntary manslaughter with a firearm specification. Roberts now appeals from his conviction and assigns four errors for our review.

Roberts' first assignment of error states:

I.

WHETHER THE FAILURE BY DEFENSE COUNSEL TO REQUEST A SELF-DEFENSE JURY INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL?

Roberts asserts that his trial counsel's failure to request a self-defense jury instruction constituted ineffective assistance of counsel.

The State maintains that Roberts was not entitled to a self-defense instruction and, therefore, trial counsels failure to request this instruction did not fall below an objective standard of reasonable representation.

The issue for our review is whether trial counsel's failure to request a self-defense jury instruction constituted ineffective assistance of counsel.

In State v. Bradley (1989), 42 Ohio St.3d 136, 137, the Supreme Court set forth in its syllabus the following two step inquiry for the determination of ineffective assistance of counsel:

2. Counsel's performance will not be deemed ineffective unless and until counsels performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O. 3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, followed.)

3. To show that a defendant has been prejudiced by counsels deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsels errors, the result of the trial would have been different.

The United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 689, noted:

Because of the difficulties inherent in making the evaluation, a court must indulge in a strong i's conduct falls within tlim presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Michel v. Louisiana (1955) 350 U.S. 91, 101. There are countless ways to provide effective assistance in any given case. Even the best defense criminal defense attorneys would not defend a particular client the same way.

The court further noted at 690-691 that:

* * * strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable ***.

We further note that when there is no demonstration that counsel failed to research the facts or the law, or that he was ignorant of a crucial defense and counsel makes a tactical choice, the reviewing court defers to counsels judgment in the matter. State v. Clayton (1980), 62 Ohio St. 2d 45, 49.

The Ohio Supreme court has recognized that if counsel for strategic reasons,, decides not to pursue every possible trial strategy, defendant is not denied effective assistance of counsel. State v. Brown (1988), 38 Ohio St.3d 305, 319; State v. Johnson (1986), 24 Ohio St.3d 87.

To establish self-defense, each of the following elements must be shown:

(1) the slayer was not at fault in creating the situation giving rise to the affray; (2) the slayer has 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 the use of such force; and (3) the slayer must not have violated any duty to retreat or avoid the danger. State v. Robbins (1979), 58 Ohio St.2d 74, State v. Melchior, 56 Ohio St.2d 15.

Thus, for self-defense to become part of this case, Roberts would have had to admit intentionally shooting Austin because of a bona fide belief that he was in imminent danger of death and prove that his only means of escape was by using deadly force and demonstrate he had no duty to retreat or avoid the danger. Roberts, however, testified that he shot into the air to scare the crowd gathered at Gordon Park and did not intend to shoot anyone, which is not consistent with any theory of self-defense.

Consistent with Roberts' testimony, defense counsel obviously decided to assert that the bullet accidentally hit and killed Austin, which appears to be a valid defense to a murder charge. We are not unmindful that if Roberts admitted that he intentionally shot Austin in self-defense and if the jury did not believe him, Roberts may have been convicted of the more serious offense of murder instead of the lesser offense of involuntary manslaughter. Finally we note that Roberts has not established that his trial counsel failed to make a thorough investigation of the law and facts in this case prior to establishing a defense strategy. Based on the evidence presented, we cannot conclude that counsels performance fell below an objective standard of reasonableness in this instance.

Additionally, since the record does not reflect all of the elements of self-defense are present in this case, our review does not reveal that Roberts met his burden to establish prejudice arising from deficient performance by counsel because he cannot establish a reasonable probability of a different result at trial had this strategy been employed.

We therefore conclude that defense counsel's failure to request a self-defense jury instruction did not constitute ineffective assistance of counsel because counsel's performance did not fall below the standard of reasonable representation and appellant failed to prove any prejudice nor a reasonable Accordingly, this probability of a different result at trial. assignment of error is overruled.

Roberts' second assignment of error states:

II.

WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INCLUDE IN THE JURY INSTRUCTIONS AN INSTRUCTION ON SELF-DEFENSE? [sic]

Roberts argues that the trial court committed plain error by failing to instruct the jury on self-defense thereby denying him a fair trial.

The State urges that Roberts did not meet the essential elements of a self-defense jury instruction and therefore the trial court's failure to give this instruction did not constitute plain error.

The issue then for our resolution is whether the trial court committed plain error by failing to give a self-defense jury instruction in this case.

In the first assignment of error, we set forth elements of self-defense which a defendant must prove by a preponderance of the evidence. See Martin v. Ohio (1987), 480 U.S. 228.

A trial court must fully and completely give the jury all the instructions which are necessary and relevant for it to weigh the evidence and discharge its duty as fact finder. State v. Comen (1990), 50 Ohio St.3d 206. However, the trial court's instructions to the jury should address the actual issues in the case as shown by the evidence and the pleadings. State v. Guster (1981), 66 Ohio St.2d 266.

Under Crim. R. 30(A), the failure to request or object to jury instructions waives any error relating to the instructions except in the event of plain error. See State v Underwood (1983), 3 Ohio St.3d 12,...