State v. Muscatello

• Decision Date: 07 July 1977
• Citation: 387 N.E.2d 627,57 Ohio App.2d 231,11 O.O. 3d 320
• Parties: , 11 O.O.3d 320 The STATE of Ohio, Appellee, v. MUSCATELLO, Appellant. *
• Court: Ohio Court of Appeals

Page 231

57 Ohio App.2d 231

387 N.E.2d 627, 11 O.O.3d 320

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

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

July 7, 1977.

Syllabus by the Court

1. Emotional stress is not an element of the offense of voluntary manslaughter, R.C. 2903.03, which the state must prove beyond a reasonable doubt. Emotional stress is a mitigating circumstance for which the defendant in a criminal prosecution bears the burden of producing some evidence and does not have the burden of establishing such mitigating circumstance by a preponderance of the evidence or beyond a reasonable doubt.

2. A jury instruction which allows the jury to reduce a charge of aggravated murder, R.C. 2903.01, or murder, R.C. 2903.02, to voluntary manslaughter, R.C. 2903.03, only if they find beyond a reasonable doubt that the defendant, in the commission of the crime, acted under extreme emotional stress brought on by serious provocation reasonably sufficient to incite him into using deadly force, unconstitutionally places upon the defendant the burden of proving the mitigating circumstance of emotional stress beyond a reasonable doubt. R.C. 2901.05.

3. A jury must unanimously agree that the defendant is guilty of a particular criminal offense before returning a verdict of guilty on that offense. If a jury is unable to agree unanimously that a defendant is guilty of a particular offense, they may proceed to consider a lesser included offense upon which evidence has been presented. The jury is not required to determine unanimously that the defendant is not guilty of the crime charged before they may consider a lesser included offense.

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

Gerald A. Messerman and Julian Cohen, Cleveland, for appellant.

KRENZLER, Judge.

The appellant, William Muscatello, was indicted by the Grand Jury of Cuyahoga County for aggravated murder in violation of R.C. 2903.01 on February 13, 1975. The indictment charged that the appellant, on or about February 2, 1975, unlawfully and purposely and with prior calculation and design, caused the death of Richard Rauscher. At his arraignment on February 28, 1975, the appellant entered a plea of not guilty to the indictment. Trial commenced before a jury on June 23, 1975, in the Common Pleas Court of Cuyahoga County.

It is undisputed that the appellant killed Richard Rauscher at the Party Time Lounge on February 2, 1975. The sole issue at trial was the circumstances under which the killing occurred. The state called four witnesses to testify to these circumstances and the following is a brief summary of their testimony.

A short time prior to the shooting, the victim, Richard Rauscher, and the appellant engaged in a fight during which Rauscher knocked the appellant to the floor by striking him in the face. The appellant arose and left the tavern through the rear door stating, as he left, that he would be back. A short time later the appellant returned through the front door with a gun and fired a single shot which penetrated Rauscher's back causing his death.

The appellant then left immediately through the front door having said nothing prior to or after the shooting.

With regard to the time lapse between the appellant's departure from the rear door and his re-entry through the front door, three of the state's witnesses testified to times varying from five to fifteen minutes. A rebuttal witness, called by the state testified that appellant returned "A little while later" and "a short time later." The appellant, on cross-examination, sought to determine what the witness meant by the terms "a little while later" and "a short time later" but objections to the questions were sustained by the court on the ground that the questions were beyond the scope of direct examination.

Witnesses called by the defense offered the following testimony. The appellant and Richard Rauscher had been close friends for approximately fifteen years but because of a fight between Rauscher's brother, Steve, and the appellant's brother, Donald, on October 31, 1974, ill-will arose between Rauscher and the appellant which developed into an on-going feud. Witnesses testified that Rauscher threatened to kill the appellant and because of these threats the appellant's life style changed dramatically and he became nervous and upset. There was testimony that he terminated all social activities and kept himself and his wife and children close to home, that he took tranquilizers, that he traveled about in disguises, that he lost weight and that he was hospitalized for a nervous condition in November, 1974.

Witnesses also testified that the appellant and members of his family received telephone threats on his life and that on January 9, 1975, the appellant was shot in the leg in his home by an unknown assailant.

As to the events surrounding the shooting of Rauscher, the appellant testified that he went to the Party Time Lounge on February 2, 1975, for the purpose of confronting Carl Orzech whom the appellant believed to be responsible for creating his problems with Rauscher. The appellant stated that he and Orzech fought and that after Orzech had thrown the appellant to the floor, Rauscher entered the room, the appellant arose and Rauscher hit him in the face, throwing him to the floor again. According to the appellant's testimony he then left the lounge, got into his car and began to drive away when his cousin whistled to him. His cousin got into the car and had a gun in his hand. The appellant testified that while in a daze from the previous fight, he took the gun from his cousin, went back into the bar and shot Rauscher. A witness for the defense testified that the time lapse between the appellant's exit and his re-entry was two minutes.

In his charge to the jury the trial judge instructed on the offenses of aggravated murder, R.C. 2903.01; murder, R.C. 2903.02; and voluntary manslaughter, R.C. 2903.03. The instructions, in relevant part, were as follows:

"Now, ladies and gentlemen, the Defendant, William C. Muscatello, was charged with the crime of aggravated murder. Aggravated murder is the killing of another purposely and with prior calculation and design. Before you can find the Defendant guilty of aggravated murder, you must first find beyond a reasonable doubt: No. 1, that Richard Rauscher was a living person and that his death was caused by the Defendant, William C. Muscatello, in Cuyahoga County, Ohio, on or about the 2nd day of February, 1975, and,

"No. 2, that the killing was done purposely, and,

"No. 3, that the killing was done with prior calculation and design.

"Prior calculation and design means that the purpose to kill was reached by a definite process of reasoning in advance of the killing, which process of reasoning must have included a murder plan involving studied consideration the method and the instrument with which to kill another.

"No definite period of time must elapse, and no particular amount of consideration must be given to the prior calculation and design to kill. Acting on the spur of the moment or after a momentary consideration of the purpose to kill is not sufficient to constitute the crime excuse me to constitute the kind of prior calculation and design required for aggravated murder.

"If you find that the Defendant, William C. Muscatello, actually formed a purpose to kill and that this purpose was arrived at with calculation and design before he performed the act, that is sufficient for this element of the crime.

"If you find that the State proved beyond a reasonable doubt all of the essential elements of aggravated murder, your verdict must be guilty of that crime, and in that event you will not consider any lesser included offense.

"If you find that the State failed to prove prior calculation and design, you must find the Defendant not guilty of aggravated murder, and then you will proceed with your deliberations and decide whether the State has proved beyond a reasonable doubt the elements of the lesser crime of murder.

"The crime of murder is distinguished from aggravated murder by the failure to prove the existence of prior calculation and design. To constitute murder, it must be established that Richard Rauscher was killed by the Defendant in Cuyahoga County, Ohio, on or about the 2nd day of February, 1975, and that there was a purpose to kill the deceased existing in the mind of the Defendant at the time of the act. The Court has previously defined the term 'purpose,' for you.

"If you find that the State proved beyond a reasonable doubt all of the essential elements of the lesser crime of murder, your verdict must be guilty of murder, and in that event you must not consider any lesser included offense.

"If you find that the State failed to prove any one of the essential elements of the crime of murder, you must find the Defendant not guilty of murder, and you will proceed with your deliberation and decide whether the State has proved beyond a reasonable doubt the elements of the lesser crime of voluntary manslaughter.

"Voluntary manslaughter is knowingly causing the death of another while under extreme emotional stress brought on by serious provocation reasonably sufficient to incite the Defendant into using deadly force.

"Before you can find the Defendant guilty of voluntary manslaughter, you must find beyond a reasonable doubt:

"No. 1, that Richard Rauscher was a living person and his death was caused by the Defendant, William C. Muscatello, in Cuyahoga County, Ohio, on or about the 2nd day of February, 1975, and that the killing was done knowingly, and that the act causing the death of the victim was performed while the Defendant, William C. Muscatello, was under extreme emotional stress brought on by serious provocation reasonably sufficient to incite him into using deadly force.

"The emotional stress or condition must be extreme; that is, it must be great in nature and intensity,...