State v. Muscatello

• Decision Date: 26 July 1978
• Docket Number: No. 77-950,77-950
• Citation: State v. Muscatello, 55 Ohio St.2d 201, 378 N.E.2d 738 (Ohio 1978)
• Parties: , 9 O.O.3d 148 The STATE of Ohio, Appellant, v. MUSCATELLO, Appellee.
• Court: Ohio Supreme Court

Page 201

55 Ohio St.2d 201

378 N.E.2d 738, 9 O.O.3d 148

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

No. 77-950.

Supreme Court of Ohio.

July 26, 1978.

Syllabus by the Court

1.Extreme emotional stress, as described in R.C. 2903.03, is not an element of the crime of voluntary manslaughter (State v. Toth, 52 Ohio St.2d 206, 371 N.E.2d 831, modified.)

2.Extreme emotional stress, as described in R.C. 2903.03, is a circumstance, the establishment of which mitigates a defendant's criminal culpability.

3.In a prosecution for aggravated murder, a defendant is not required to establish the mitigating circumstance of extreme emotional stress, as described in R.C. 2903.03, beyond a reasonable doubt or by a preponderance of the evidence in order for the jury to consider the lesser included offense of voluntary manslaughter.

4.Where, in a prosecution for aggravated murder, the defendant produces or elicits some evidence of the mitigating circumstance of extreme emotional stress described in R.C. 2903.03, the question of his having committed the lesser included offense of voluntary manslaughter must be submitted to the jury under proper instructions from the court.

5.An act committed while under the extreme emotional stress described in R.C. 2903.03(A), is one performed under the influence of sudden passion or in the heat of blood, without time and opportunity for reflection or for passions to cool.

On or about February 2, 1975, William C. Muscatello, appellee herein, entered a Cleveland bar and confronted Carl Orzech, Jr., whom appellee thought responsible for bad feelings which had developed between appellee and one Richard Rauscher.Soon thereafter, Rauscher entered the bar and was accused by appellee of responsibility for injury previously sustained by appellee.Rauscher knocked appellee down.Appellee departed the bar, threatening to return.

Subsequently, while Rauscher sat at the bar, appellee reentered and shot him in the back, causing his death.Imprecise evidence indicated that several moments had elapsed between their fight and the shooting.

Appellee was indicted for aggravated murder in violation of R.C. 2903.01.¹At his arraignment, he entered a plea of not guilty.His cause came on for trial to a jury and terminated with a verdict of guilty of the charge of aggravated murder.

On appeal to the Court of Appeals, appellee's judgment of conviction was reversed, and the cause is now before us pursuant to allowance of appellant's motion for leave to appeal.Appellee does not cross-appeal.

John T. Corrigan, Pros.Atty. and George J. Sadd, Cleveland, for appellant.

Gold, Rotatori, Messerman & Schwartz Co., L. P. A., Gerald A. Messerman and Julian Cohen, Cleveland, for appellee.

HERBERT, Justice.

The charge of the trial court to the jury in the cause at bar included, in relevant part:

"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:

" * * * (T)hat 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 to using deadly force."

In reviewing this jury instruction, the Court of Appeals correctly determined that emotional stress, as described in R.C. 2903.03, ² is not an element of the crime of voluntary manslaughter.³Such emotional stress is a circumstance, the establishment of which mitigates a defendant's criminal culpability.Furthermore, in a prosecution for aggravated murder, a defendant is not required to establish the mitigating circumstance of extreme emotional stress, as described in R.C. 2903.03, beyond a reasonable doubt or by a preponderance of the evidence in order for a jury to consider the lesser included offense of voluntary manslaughter.

We agree with the Court of Appeals that where a defendant originally has been charged with aggravated murder or murder, the prosecution can be expected to endeavor to prove the elements of the highest offense; it will attempt to disprove the mitigating circumstance.Because only the defendant will gain by establishing the mitigating circumstance, he alone will be concerned with showing its existence.Therefore, the import of the instant instruction is as if the trial court had instructed the jurors that appellee bore the burden of establishing the presence of the described emotional stress by proof beyond a reasonable doubt.This instruction is impermissible because of our conclusion that where, in a prosecution for aggravated murder, the defendant produces or elicits some evidence of the mitigating circumstance of extreme emotional stress described in R.C. 2903.03, the question of his having committed the lesser included offense of voluntary manslaughter must be submitted to the jury under proper instructions from the court.

The Court of Appeals held also that the extreme emotional stress described in R.C. 2903.03 may be the result of a build-up of stress over an extended period of time.

Long prior to the January 1, 1974, effective date of R.C. 2903.03, it had been settled in this state that where one inflicted a mortal wound in a sudden affray Or in heat of blood or passion, without time for reflection or for the passions to cool, he was guilty of manslaughter.If, however, it appeared that the accused had reflected, deliberated or cooled between the time of provocation and the time the fatal stroke was given, or if there was time and opportunity for cooling, the killing was with malice and intent to kill.E. g., State v. Robinson(1954), 161 Ohio St. 213, 219, 118 N.E.2d 517.See, also, State v. Elfrink(1954), 161 Ohio St. 549, 550-52, 120 N.E.2d 83.

In Elfrink, this court approved the following jury instruction:

" 'When a person is killed under the influence of sudden passion, or in the heat of blood produced by an adequate and reasonable provocation, and before a reasonable time has elapsed for the blood to cool, and for reason to assume its habitual control, and such killing is the result of such temporary excitement induced by such provocation by which the control of reason was disturbed rather than by wickedness of heart or cruelty or wickedness of disposition, it is manslaughter in the first degree.' "

We do not find it necessary to agree with the Court of Appeals that the General Assembly intended to change the former law.⁴An act committed while under the extreme emotional stress described in R.C. 2903.03(A), is one performed under the influence of sudden passion...