State v. Sage

• Decision Date: 08 July 1987
• Docket Number: No. 86-1047,86-1047
• Citation: 31 Ohio St.3d 173,510 N.E.2d 343,31 OBR 375
• Parties: , 31 O.B.R. 375 The STATE of Ohio, Appellant and Cross-Appellee, v. SAGE, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 173

31 Ohio St.3d 173

510 N.E.2d 343, 31 O.B.R. 375

The STATE of Ohio, Appellant and Cross-Appellee, v. SAGE, Appellee and Cross-Appellant.

No. 86-1047.

Supreme Court of Ohio.

July 8, 1987.

Syllabus by the Court

1. The assertion that a death was the result of a mutual suicide pact is a complete defense to any crime by the survivor to the pact; thus, given such assertion, the trial court in an aggravated murder case does not commit reversible error by refusing to charge on lesser included offenses.

2. The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.

3. Double jeopardy principles do not bar retrial where an appellate court reverses a conviction based upon prosecutorial misconduct when such conduct was not calculated to goad the defense into seeking a mistrial.

Appellee and cross-appellant, Roy H. Sage (hereinafter "appellee"), was tried twice for aggravated murder in violation of R.C. 2903.01. Appellee was convicted of aggravated murder in the first trial but his conviction was reversed by the court of appeals and remanded for a new trial.

The second trial commenced on May 28, 1985. During the second trial in the Franklin County Court of Common Pleas, evidence was produced that on the evening of February 22, 1982, police and rescue units were dispatched to an apartment complex on Elmore Court in response to a shooting. After the police determined that the shooting occurred within the appellee's apartment, they were admitted into the premises by the resident manager. Shortly after they entered the apartment, they observed a note by the stairs which read, "Call The Law." In an upstairs bedroom, the police observed two bodies lying on a bed. Catherine Wanner was found to have a fatal gunshot wound to her left temple and a gunshot wound to her left chest area. Appellee was found semi-conscious with a superficial gunshot wound to the head and a wound to his abdomen. Appellee was immediately removed by the paramedics. En route to the hospital he stated that decedent shot herself and he had shot himself as a result of a mutual suicide pact.

The police officers who initially arrived on the scene observed what purported to be a suicide note ¹ written by decedent to her mother, father and brother. Two .25 caliber spent bullets were found in various places in the bedroom: one in a wall and one on the bed mattress after decedent's body was removed. A .25 caliber gun was found on the floor slightly under the bed.

At trial, evidence was adduced showing that decedent was left-handed. The results of the Trace Metal Detection Technique Test ("TMDT") indicated she had held metal in her right hand. No traces of metal were detected in her left hand. Evidence was also presented that the gun was held approximately six to twelve inches from her left temple when fired. The medical evidence at trial established that death would almost be instantaneous from the wound to Ms. Wanner's temple.

Expert opinion evidence established that the alleged suicide note was written by decedent. Evidence also established that the note contained a crossed-out portion which read "But th- guy wants [to] kill me." It also was determined that the word "you" had been scratched out and "Roy" inserted in a phrase which read, "I wanted to die with you Roy." On the reverse side of the alleged suicide note was a letter in the handwriting of the decedent which appeared to be directed to appellee, but the contents of the letter were stated in the third person.

The second trial resulted in the jury's returning a verdict of guilty of aggravated murder. This conviction was also appealed to the court of appeals.

The court of appeals reversed and remanded for a new trial, holding that the trial court's failure to instruct the jury on the lesser included offense of involuntary manslaughter constituted reversible error. The appellate court further determined that it was prejudicial error to permit the decedent's mother to testify concerning the contents of the letter on the reverse side of the suicide note. The court of appeals, however, held that it was not error to permit three of the decedent's college classmates to testify to her state of mind prior to the date of death. The appellate court also found that the verdict was supported by the manifest weight of the evidence, and that all of the confiscated evidence, with the exception of two spent bullets, was in plain view and hence properly seized. Finally, the court of appeals determined that double jeopardy principles did not bar the retrial of this cause after appellee's initial conviction was reversed on appeal.

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

Michael Miller, Pros. Atty., Karen L. Martin and Alan Travis, Columbus, for appellant and cross-appellee.

James Kura, County Public Defender, and Barbara J. Slutsky, Columbus, for appellee and cross-appellant.

ALICE ROBIE RESNICK, Justice.

Several issues are presented for review by the appeal and cross-appeal, each of which will be addressed in turn. For the reasons set forth below, we reverse in part and affirm in part the judgment of the court of appeals and reinstate the judgment of the trial court.

I

The first issue presented by the state's appeal is whether an instruction on a lesser included offense should have been given by the trial court. Under Ohio law, a defendant may be convicted of a lesser included offense " * * * if lesser offenses are included within the offense charged * * *." Crim.R. 31(C). See, also, R.C. 2945.74. However, this does not imply that a court is required to instruct on lesser offenses simply because they are included in the charged offense. State v. Wilkins (1980), 64 Ohio St.2d 382, 387, 18 O.O.3d 528, 531, 415 N.E.2d 303, 307.

Over the years, this court has refined the rule governing when a trial court is required to instruct on lesser included offenses. In State v. Loudermill (1965), 2 Ohio St.2d 79, 31 O.O.2d 60, 206 N.E.2d 198, syllabus, it was held that "[w]here the evidence in a criminal case would support a finding by the jury of guilt of a lesser offense included in the offense for which defendant was indicted and tried, the refusal of the trial court to charge upon that lesser included offense is error prejudicial to the rights of defendant." (Citations omitted.) This rule was further examined in State v. Nolton (1969), 19 Ohio St.2d 133, 48 O.O.2d 119, 249 N.E.2d 797. In that case, the court observed that " * * * it is obvious that proof which will support a conviction for the principal offense will invariably support a conviction on the lesser." Id. at 134, 48 O.O.2d at 120, 249 N.E.2d at 798. Hence, a more utilitarian rule was advanced. Accordingly, the Nolton court reasoned that "[i]f the evidence adduced on behalf of the defense is such that if accepted by the trier it would constitute a complete defense to all substantive elements of the crime charged, the trier will not be permitted to consider a lesser included offense for the reason that an unreasonable compromise would be invited on the state's evidence:

"On the contrary, if the trier could reasonably find against the state and for the accused upon one or more of the elements of the crime charged and for the state and against the accused on the remaining elements, which by themselves would sustain a conviction upon a lesser included offense, then a charge on the lesser included offense is both warranted and required, not only for the benefit of the state but for the benefit of the accused." (Emphasis sic.) Id. at 135, 48 O.O.2d at 120, 249 N.E.2d at 798.

In Wilkins, supra, the court clarified its pronouncement in Nolton, supra, stating:

"If the evidence adduced on behalf of the defense is such that if accepted by the trier of fact it would constitute a complete defense to all substantive elements of the crime charged, the trier of fact will not be permitted to consider a lesser included offense unless the trier of fact could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for the state and against the accused on the remaining elements, which, by themselves, would sustain a conviction upon a lesser included offense.

"The persuasiveness of the evidence regarding the lesser included offense is irrelevant. If under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense, the instruction on the lesser included offense must be given. The evidence must be considered in the light most favorable to defendant." Id. 64 Ohio St.2d at 388, 18 O.O.3d at 532, 415 N.E.2d 308.

Resolution of the present issue involves an analysis of whether any offense is committed under Ohio law as a result of a death occurring during the execution of a mutual suicide pact. Appellee moved for an instruction on the lesser included offense of involuntary manslaughter based upon either assault or aggravated menacing. The trial court overruled the motion and only instructed on aggravated murder with prior calculation and design.

It is not a crime under Ohio law to attempt or commit suicide. Appellee contends that a mutual suicide pact existed between himself and decedent. Further, it is the defense's contention that by providing decedent with the means to commit suicide he could possibly be guilty of assault (or aggravated menacing). Thus, the charge on involuntary manslaughter based on a misdemeanor would be an appropriate instruction. The question, therefore, arises as to whether a surviving participant of a mutual suicide pact, who provides the means of death to the decedent, is guilty of a criminal offense under existing Ohio law. We conclude that he is not.

At common law, suicide was a felony punishable by forfeiture of property and an ignominious burial. Also at common...