State v. Robbins, No. 78-906

CourtUnited States State Supreme Court of Ohio
Writing for the CourtDONOFRIO; CELEBREZZE; DONOFRIO, J., of the Seventh Appellate District, sitting for LOCHER
Citation58 Ohio St.2d 74,388 N.E.2d 755,12 O.O.3d 84
Decision Date02 May 1979
Docket NumberNo. 78-906
Parties, 12 O.O.3d 84 The STATE of Ohio, Appellee, v. ROBBINS, Appellant.

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58 Ohio St.2d 74
388 N.E.2d 755, 12 O.O.3d 84
The STATE of Ohio, Appellee,
v.
ROBBINS, Appellant.
No. 78-906.
Supreme Court of Ohio.
May 2, 1979.
Syllabus by the Court

1. Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified. (State v. Cotton, 56 Ohio St.2d 8, 381 N.E.2d 190, paragraph three of the syllabus, approved and followed.)

2. To establish self-defense, 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 in the use of such force; and (3) the slayer must not have violated any duty to retreat or avoid the danger. (State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d 195, 381 N.E.2d 190, approved and followed.)

On December 14, 1977, defendant-appellant, Barry M. Robbins, Jr., was found guilty of aggravated murder in violation of [388 N.E.2d 756] R.C. 2903.01(A). Evidence adduced at the trial before a jury indicates that the decedent, Jan Canterbury, and appellant were drinking together on the day of decedent's death, September 16, 1977. Hastine Clark, an eyewitness on behalf of the state, testified that she was in appellant's apartment when the incident occurred. Appellant

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asked the victim to go out and buy some food and the victim returned some time later having used appellant's food money to buy liquor instead. An argument thereupon ensued. Clark, who saw the appellant strike the victim, testified as follows: that appellant was the first one to hit anybody; that "(h)e (appellant) just drawed his fist and hit him"; and that after the victim had fallen to the ground, "(h)e (appellant) turned and come back into the room. He got something like a sword, I think, and went back out. That is when I seen him draw back. He stabbed him once."

Essentially, state's witness, Clark testified that, after the victim was on the floor, appellant came back into his apartment, raised up his bed and extracted a weapon. Then appellant pushed the witness back and went outside the apartment to stab the victim. The victim never got up after appellant's initial blow that sent him to the floor. Clark was able to view the incident since the apartment door was partially open. She testified that "I was just looking out the door when I seen him do that." Appellant had Clark mop the floor and help him move the body to another apartment.

Paul McNeil was living in the apartment next to appellant's when the incident occurred. Because of the plywood walls, McNeil was able to hear what transpired at the time of the stabbing. He testified that appellant told Canterbury that he (the victim) was no good. The last words that McNeil heard the victim speak were to leave him (the victim) alone, and that he was down and out already. McNeil then heard the victim being dragged back to the victim's own apartment. The next day he saw Hastine Clark mopping the hallway floor, which activity was unusual. Finally, he testified that he was the one who found the victim's body.

Police Officer Robert Shirey testified that appellant made various statements to the police. In one such statement, appellant stated that, when the victim returned empty-handed, appellant became angry and hit the victim in the face. Appellant then returned to his apartment, closed

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his door and heard a scuffle in the hallway. Appellant maintained that, three days prior to the incident, the victim had stolen his sword. When Officer Shirey indicated his disbelief of appellant's first story, appellant then stated that, after he had knocked the victim to the floor, David Martinez entered the scene and asked for appellant's knife. After appellant gave him the knife, Martinez then cut the victim's throat. Finally, no bruises or contusions were noticed on appellant by Officer Shirey, and, when appellant was asked if he was sick or injured, he replied, "No."

At the trial, appellant testified that, on the morning of the incident, appellant and the victim drank together. The victim was sent out to buy food, but instead bought two shots of liquor. Appellant stated further, "(t)hat is when I hit him in the mouth. He went back to the banister and we got to fighting out there." The door to appellant's apartment remained open. The men continued their fight and appellant was cut on his chest. Appellant "rushed" the victim, struggled with him, and the knife fell to the floor. When appellant went to pick up the knife, the victim started to choke appellant while appellant was on his knees. Appellant stated that, as he drew dizzy, "I fell on the knife and I started shooting back." Appellant continued to testify that, in a little while, the victim released his grip. Appellant got up and went back to his room. He later went out to help the victim but the victim told appellant to leave. At that time, appellant "didn't think he (the victim) was hurt bad."

Appellant stated that his...

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873 practice notes
  • Spisak v. Mitchell, No. 03-4034.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 20, 2006
    ...burden of going forward with evidence of a nature and quality sufficient to raise the defense before the jury."); State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755, 758 (1979) ("The proper standard for determining in a criminal case whether a defendant has successfully raised an ......
  • Tourlakis v. Morris, No. C-2-89-314
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • May 30, 1990
    ...to retreat or avoid the danger. State of Ohio v. Tourlakis, No. 52035 (Cuyahoga Cty. App. Apr. 25, 1987) at 6 (quoting State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979) (syllabus by the court, paragraph two)). "Ohio employs a subjective test to determine whether a defendant had......
  • State v. Jones, NO. C-170647
    • United States
    • United States Court of Appeals (Ohio)
    • January 31, 2020
    ...of death or great bodily harm and that his only means of escape from such danger was in the use of such force." State v. Robbins , 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus.1 Because Ohio has adopted a subjective standard for determining whether a defendant......
  • Rice v. Moore, Civil Action No. 1:05-cv-00779.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • April 10, 2008
    ...not have violated any duty to retreat or avoid the danger." Williford, 49 Ohio St.3d at 249, 551 N.E.2d 1279; State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), syllabus. The defendant is privileged to use that force which is reasonably necessary to repel the attack. State v. M......
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876 cases
  • Davis v. Shoop, Case No. 2:16-cv-495
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 16, 2020
    ...time not being established. Id. at *9, quoting State v. Davis, 8 Ohio App. 3d 205, 206-07 (8th Dist. 1982); citing State v. Robbins, 58 Ohio St. 2d 74 (1979). On Davis's Sixth Assignment, the appellate panel concluded that the three-judge panel's findings of five aggravated circumstances wa......
  • Garrison v. Gray, Case No. 2:18-cv-1152
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • August 1, 2019
    ...and that his only means of escape was the use of force; and (3) the defendant did not violate any duty to retreat. State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979).[*P22] In State v. Perry, 5th Dist. Richland No. 02-CA-77, 2003-Ohio-6097, the defendant argued the court erred in fai......
  • Henderickson v. Warden Lebanon Corr. Inst., Case No. 2:10-cv-1084
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • November 2, 2011
    ...to avoid the danger. State v. Williford (1990), 49 Ohio St.3d 247, 249, 551 N.E.2d 1279; State v. Robbins (1979), 58 Ohio St.2dPage 2074, 388 N.E.2d 755, paragraph two of the syllabus. A defendant is privileged to use only that force that is reasonably necessary to repel the attack. Wiilifo......
  • Spisak v. Mitchell, No. 03-4034.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 20, 2006
    ...the burden of going forward with evidence of a nature and quality sufficient to raise the defense before the jury."); State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755, 758 (1979) ("The proper standard for determining in a criminal case whether a defendant has successfully raised an affirm......
  • Request a trial to view additional results

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