State v. Robbins

• Decision Date: 02 May 1979
• Docket Number: No. 78-906,78-906
• Citation: 58 Ohio St.2d 74,388 N.E.2d 755,12 O.O.3d 84
• Parties: , 12 O.O.3d 84 The STATE of Ohio, Appellee, v. ROBBINS, Appellant.
• Court: Ohio Supreme Court

Page 74

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 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 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 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 various stories were a result of being "high" at the time. Finally, when asked if he was thinking in terms of self-defense during the fight, appellant replied, "No."

Dr. Robert E. Zipf, Jr., conducted the autopsy upon the victim on September 18, 1977. The cause of death was a stab wound which cut one of the main arteries in the neck. The victim had throat wounds, cuts on the back of his head and on his arms. Further, there were multiple abrasions over the nose and cheek of the victim. The weapon used was long, sharp on one edge, and blunt on the other edge. The direction of the stabbings occurred from top to bottom. Wounds on the victim's right hand appeared to be defensive type wounds. The bruising occurred just before the victim's death.

On cross-examination, Dr. Zipf testified that the victim's "blood contained .42 grams percent of alcohol, .07 milligrams of Diazepan and .08 milligrams of Desmethyldiazepan." He stated that the victim could have lived for about 30 minutes after the attack.

On redirect, Dr. Zipf was asked to explain the effect upon the victim of having a .42 blood alcohol content, and he stated as follows:

" * * * He would not be able to have the physical reflexes and strength at that level since it is so high and just whether such an individual could actually produce enough force to actually choke or strangle somebody, I would I find that hard to envision * * * (w)ith that alcohol content, it is not probable that the victim could have been a real threat to anyone else * * * (h) is inability to talk coherently, his marked loss of coordination, his inability to even walk without falling over would certainly be apparent."

The trial court sentenced appellant to life imprisonment, and upon appeal the Court of Appeals affirmed.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

George C. Smith, Pros. Atty. and Steve Robins, Columbus, for appellee.

James Kura and Gregory L. Ayers, Columbus, for appellant.

DONOFRIO, Judge.

Appellant's first proposition of law states:

"The element of prior calculation and design in the offense of aggravated murder, Ohio Revised Code Section 2903.01(A), requires that the defendant exercise studied care in planning or analyzing the means or instrument with which to kill another, as well as the scheme by which it is to occur. Prior calculation and design is not established where, as here, the evidence clearly shows that the killing occurred on the spur of the moment or after momentary deliberation during a heated brawl which resulted from an instantaneous eruption of events."

Appellant was convicted of aggravated murder pursuant to R.C. 2903.01(A), which reads:

"No person shall purposely, and with prior calculation and design, cause the death of another."

Although we agree with appellant's contention that prior "calculation and design" is a more stringent element than the "deliberate and premeditated malice" which was required under prior law, we do not agree with appellant's contention with regard to the evidence. The state's evidence, which the jury evidently believed, indicates that the appellant was the aggressor and, contrary to appellant's...