State v. Reed
| Decision Date | 31 March 1981 |
| Docket Number | No. 80-757,80-757 |
| Citation | 418 N.E.2d 1359,19 O.O.3d 311,65 Ohio St.2d 117 |
| Parties | , 19 O.O.3d 311 The STATE of Ohio, Appellee and Cross-Appellant, v. REED, Appellant and Cross-Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
A person is under "detention," as that term is used in R.C. 2921.34, when he is arrested and the arresting officer has established control over his person.
On July 15, 1978, Charles Burdsall, a police officer for the city of Cincinnati, was shot and killed after he stopped a vehicle and approached it to investigate an alleged attempted robbery. David Mellon, a civilian riding with the police officer in an auxiliary capacity, was also wounded in the incident.
On July 21, 1978, the Hamilton County Grand Jury indicted Wayne Reed, charging him with three counts of aggravated murder in violation of R.C. 2903.01, attempted murder in violation of R.C. 2903.02, escape in violation of R.C. 2921.34, and aggravated robbery in violation of R.C. 2911.01. The first count of aggravated murder charged that Reed had caused Burdsall's death while escaping; the second count charged that he had caused the death of Burdsall while fleeing immediately after attempting to commit an aggravated robbery; and the third count charged that he had purposely caused the death of Burdsall with prior calculation and design. On July 22, 1978, Reed was arrested in Cleveland.
The case was tried to a jury beginning on October 16, 1978. At trial, David Hamler, a Cincinnati police officer, testified that at approximately midnight on July 14, 1978, while off duty, he drove to a King Kwik store to make a purchase. As he drove into the parking lot at the side of the store, he noticed a late 1960's Chevrolet parked in the lot with a man seated behind the steering wheel. The officer then parked his car in the front lot, exited his vehicle and approached the front door of the store. He then noticed a man, whom he identified as Wayne Reed, at a pay phone next to the front window of the store. He testified that Reed was holding the telephone receiver and was acting as if he was talking into it, but that he was, in fact, peering into the store at a clerk who was counting money. Hamler stated that Reed was not actually talking on the phone because the mouthpiece was away from his mouth and he was talking too quietly to be heard. He testified that there was no indication that Reed was carrying a gun.
Hamler went into the store, identified himself to the clerk and asked the clerk to call the police department because he believed a robbery was in progress. The clerk made the call and Hamler spoke to a police officer. Shortly thereafter Officer Robert Plum arrived in a marked police car. As Plum arrived, Reed hung up the phone, walked around the corner of the building, and got into the Chevrolet which immediately drove off.
Officer Burdsall then pulled up in a marked police car, and after a brief conversation with Hamler, drove off in pursuit of the Chevrolet.
David Mellon testified that he and Burdsall pursued the Chevrolet out of the lot and stopped it; that he and Burdsall got out of the police car with Burdsall having drawn his gun; that they walked up to the Chevrolet and Burdsall ordered the occupants out of the car; and that the driver then got out of the car, turned around, and proceeded to shoot three times at Burdsall and twice at Mellon. Mellon identified the driver as Wayne Reed.
The only evidence offered by the prosecution of prior calculation and design, excepting evidence regarding the shooting itself, was a statement Reed made to a person who had been in an auto body repair class with him approximately a month before Burdsall's death that "if a cop got in his way (during a robbery) he would blow him away."
During the course of the trial the prosecution called Barbara Brown, Reed's fiancee, as a witness. After the court refused to declare her a hostile witness, the prosecutor questioned her regarding conversations she had with Reed following the shooting. When her answers conflicted with those made to a police officer shortly after the shooting, the prosecutor moved the court to allow him to use the statements to refresh her recollection on the ground that he had been surprised by the conflicting testimony. The court permitted the prosecutor to read the statements to Brown who then had an opportunity to explain them.
On November 1, 1978, the jury found Reed guilty as charged on all counts of the indictment. On January 18, 1979, the court sentenced Reed to death on each of the three counts of aggravated murder which were to be served concurrently, to seven to twenty-five years each for the felonies of attempted murder and aggravated robbery to be served consecutively with each other and the death sentences, and to two to five years for the escape to be served consecutively with the other sentences.
On appeal to the Court of Appeals, Reed argued (1) that the death sentences should be commuted to life sentences because the Ohio death penalty had been held unconstitutional; (2) that the trial court had erred in allowing Officer Hamler to state that he believed a robbery was occurring; (3) that the court had erred in allowing the prosecutor to read Barbara Brown's prior statements into the record; (4) that the trial court had erred in allowing the conviction of defendant on the three counts of aggravated murder; (5) that the guilty verdicts were contrary to the manifest weight of the evidence; and (6) that the trial court erred in imposing consecutive sentences on the felonies underlying the two aggravated murder convictions based on those felonies.
The Court of Appeals reduced the death sentences to life imprisonment and reversed the imposition of sentences on all three aggravated murder convictions, remanding the case to the trial court with instructions to choose one aggravated murder offense upon which sentencing should be ordered. The court affirmed the trial court in all other respects.
Defendant appealed to this court, reasserting the assignments which the Court of Appeals held to be without merit. The state cross-appealed the reversal and remand of the imposition of the sentences on the three counts of aggravated murder.
The cause is not before this court pursuant to the allowance of a motion and cross-motion for leave to appeal.
Simon L. Leis, Jr., Pros. Atty., William E. Breyer and F. David Albanese, Cincinnati, for appellee and cross-appellant.
R. Scott Croswell III, Gregory L. Adams and Elizabeth Agar, Cincinnati, for appellant and cross-appellee.
Defendant contends that the prosecution did not prove the presence of prior calculation and design, aggravated robbery and escape. In State v. Sheppard (1956), 165 Ohio St. 293, 135 N.E.2d 340 this court stated in the fifth paragraph of the syllabus, that:
"In an appeal from a conviction in a criminal case, this court will not retry the issues of fact but will confine its consideration to a determination of whether there is sufficient evidence to have warranted the submission of the case to the jury and whether there is sufficient substantial evidence to support the verdict rendered." This is the standard of review we shall utilize to assess the validity of the defendant's contentions.
R.C. 2903.01 states in part:
This court interpreted the phrase "prior calculation and design" in State v. Cotton (1978), 56 Ohio St.2d 8, stating, at page 11, 381 N.E.2d 190, that:
In Cotton we held that a murder had been committed with prior calculation and design when the defendant wounded a police officer, shot at another officer, then went to the first officer and fatally shot him. The passage of time and the fact that the defendant returned to kill the officer constituted sufficient proof of a scheme designed to implement the calculated decision to kill.
In the case at bar, the evidence regarding the killing at most indicates the presence of instantaneous deliberation. The statements appellant made to a classmate that he would kill any police officer who got in the way of a crime he might commit do not show that appellant designed a scheme in order to implement a calculated decision to kill. Not only were the remarks significantly removed from the killing in terms of a time frame but they were very general in nature and thus were not relevant to the killing of Officer Burdsall.
R.C. 2911.01 states:
R.C. 2913.02 states in part:
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State v. Goodwin
...134 Ohio Laws, Part II, 1866, 1900; 1973 Technical Committee Comment, supra, R.C. 2903.01. See, also, e.g., State v. Reed (1981), 65 Ohio St.2d 117, 19 O.O.3d 311, 418 N.E.2d 1359 (when the only evidence of intent, in a murder resulting from an alleged attempted robbery, is the shooting its......
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State v. Fears
...uphold a finding of prior calculation and design in some explosive situations of short duration (see, e.g., State v. Reed [1981], 65 Ohio St.2d 117, 19 O.O.3d 311, 418 N.E.2d 1359), the facts adduced here show that this case is not one in which there was simply an instantaneous eruption of ......
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State v. Jones
...depends largely upon the totality of other facts and circumstances surrounding the killing. In State v. Reed (1981), 65 Ohio St.2d 117, 120-121, 19 O.O.3d 311, 313-314, 418 N.E.2d 1359, 1362-1363, we held that a defendant's isolated statement that "if a cop got in his way during a robbery h......
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State v. Taylor
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