State v. Long, No. 77-174

• Court: United States State Supreme Court of Ohio
• Writing for the Court: HERBERT; C. WILLIAM O'NEILL; LOCHER; PARRINO, Judge, of the Eighth Appellate District, sitting for CELEBREZZE; PARRINO
• Citation: 53 Ohio St.2d 91,7 O.O.3d 178,372 N.E.2d 804
• Decision Date: 15 February 1978
• Docket Number: No. 77-174
• Parties: , 7 O.O.3d 178 The STATE of Ohio, Appellee, v. LONG, Appellant.

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53 Ohio St.2d 91 372 N.E.2d 804, 7 O.O.3d 178 The STATE of Ohio, Appellee,
v.
LONG, Appellant. No. 77-174. Supreme Court of Ohio. Feb. 15, 1978. [372 N.E.2d 805]
Syllabus by the Court

1. Ordinarily, the failure to timely object to a jury instruction violative of R.C. 2901.05(A) constitutes a waiver of any claim of error relative thereto. Crim.R. 30.

2. A jury instruction violative of R.C. 2901.05(A) does not constitute a plain error or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise.

3. Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.

A bill of indictment was filed against appellant, Donnie Long, charging him with aggravated murder. Appellant's trial to a jury commenced on February 24, 1976.

At trial, the evidence was that during or around the last two weeks of August, 1975, Terence C. Butler had been attacked by appellant and that in the course of their brawl appellant said to a bystander, "Give me a pistol because I'm going to kill this nigger." Butler testified that on the day that decedent, Jeffrie C. Boyd, was killed, Butler and Boyd went to a crap game at a pool hall and appellant was there.

Butler stated that when he saw appellant walk through a door, Butler and Boyd attempted to depart. Appellant pulled a gun from his pocket, aimed at Butler and began firing. Boyd and Butler dived through a doorway, at which

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point Boyd fell to the floor, blood pouring from his head. Appellant left the scene, having fired approximately six shots in a span of four seconds.

Butler admitted that at one juncture he had threatened appellant's life, owned numerous guns and at one time before Boyd's killing had stalked appellant with a shotgun. Appellant testified that the killing occurred while he was defending himself. His evidence of self-defense was his own testimony that he had not seen either Butler or Boyd in the pool hall on the day of the killing until the incident at issue. He testified that Butler and Boyd stepped to opposite sides of the room, the latter attempting to hide a bottle behind his back. According to appellant, Butler and Boyd then closed in upon him and Boyd raised the bottle when he was two feet away. Appellant stated that Butler reached for his pocket and that appellant then drew his own gun, intending to fire into the air. Appellant testified that when he fled the pool hall, he feared pursuit by Butler and Boyd.

At trial, testimony was taken from officer Ronald A. Perella, of the Akron Police Department. Officer Perella testified that he had arrived at the scene of the Boyd shooting to protect it, to prevent persons inside the pool hall from leaving and to keep persons outside the pool room from entering; he testified that he saw no loose bottles lying on the floor in the area where people had been about.

On March 3, 1976, appellant was found not guilty of aggravated murder, but guilty of the lesser included offense of murder. On March 16, he was sentenced to serve an indeterminate sentence of 15 years to life.

On December 22, 1976, the Court of Appeals for Summit County affirmed appellant's conviction, and the cause is now before us pursuant to our allowance of appellant's motion for leave to appeal.

Stephen M. Gabalac, Pros. Atty., and Carl M. Layman, III, Akron, for appellee.

Robert J. Croyle, R. Douglas Paige and Patricia A. Vance, Akron, for appellant.

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HERBERT, Justice.

Appellant contends that the trial court erred in instructing the jury that he bore the burden of proving the affirmative defense of self-defense by a preponderance of the evidence, this being in violation of R.C. [372 N.E.2d 806] 2901.05(A) ¹ and of the Fourteenth Amendment to the Constitution of the United States.

We agree that the trial court's instruction was erroneous and not in conformity with R.C. 2901.05(A). See State v. Robinson (1976), 47 Ohio St.2d 103, 351 N.E.2d 88; State v. Humphries (1977), 51 Ohio St.2d 95, 364 N.E.2d 1354. However, the error was waivable under appropriate circumstances.

The Supreme Court in Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, held unconstitutional a Maine statute, the operation of which apparently resulted in a statutory presumption of criminal intent. The burden of rebutting the presumption fell to defendants and the high court declared this to be an impermissible shifting from the state of its burden to establish all material elements of a crime by proof beyond a reasonable doubt. In Hankerson v. North Carolina (1977), 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306, the Supreme Court declared the Mullaney rule retroactive. ²

Most instructive in the instant cause is footnote 8, 432 U.S. at page 244, 97 S.Ct. at page 2345, 53 L.Ed.2d at page 316, in Hankerson :

" * * * (W)e are not persuaded that the impact on the administration of justice in those States that utilize the sort

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of burden-shifting presumptions involved in this case will be as devastating as respondent asserts. If the validity of such burden-shifting presumptions was as well settled in the States that have them as respondent asserts, then it is unlikely that prior to Mullaney many defense lawyers made appropriate objections to jury instructions incorporating those presumptions. * * * The States, if they wish, may be able to insulate past convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error. See, e. g., Fed.Rule Crim.Proc. 30." See, also, the concurring opinion in State v. Humphries, supra, 51 Ohio St.2d at page 104, 364 N.E.2d at page 1354.

Fed.R.Crim.P. 30 ³ in relevant part parallels Crim.R. 30. ⁴ Both provide that a party may not assign as error the giving or the failure to give instructions unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds thereof. In the case at bar, appellant concedes that he failed to object to the giving of the erroneous instruction. Nevertheless, he now relies upon Crim.R. 52(B), which provides:

"Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."

Crim.R. 52(B) is identical to Fed.R.Crim.P. 52(b). The power afforded to notice plain error, whether on a court's own motion or at the request of counsel, is one which courts exercise only in exceptional [372 N.E.2d 807] circumstances, and exercise cautiously even then. 3 Wright, Federal Practice &

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Procedure, 373, Section 856 (1969). As the United States Court of Appeals for the Sixth Circuit has noted, "The plain error rule is to be invoked only in exceptional circumstances to avoid a miscarriage of justice." United States v. Rudinsky (C.A.6, 1971), 439 F.2d 1074, 1076, citing Eaton v. United States (C.A.5, 1968), 398 F.2d 485, 486, certiorari denied, 393 U.S. 937, 89 S.Ct. 299, 21 L.Ed.2d 273. Numerous federal courts have endorsed this principle. ⁵

It has been explained relative to the prudent application of Rule 52(b):

" * * * The normal rule is that an appellate court should not consider questions which have not been properly raised in the trial court and upon which the trial court has had no opportunity to pass. The plain error rule should be applied

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with caution and should be invoked only to avoid a clear miscarriage of justice. To exercise the right freely would undermine and impair the administration of justice and detract from the advantages derived from orderly rules of procedure." Gendron v. United States (C.A.8, 1961), 295 F.2d 897, 902. ⁶

The Gendron formulation parallels the rationale of this court's strict view...