State v. Shane, 91-1601

• Decision Date: 13 May 1992
• Docket Number: No. 91-1601,91-1601
• Citation: 590 N.E.2d 272,63 Ohio St.3d 630
• Parties: The STATE of Ohio, Appellee, v. SHANE, Appellant.
• Court: Ohio Supreme Court

Page 630

63 Ohio St.3d 630

590 N.E.2d 272

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

No. 91-1601.

Supreme Court of Ohio.

Submitted Jan. 14, 1992.

Decided May 13, 1992.

SYLLABUS BY THE COURT

1. Before giving a jury instruction on voluntary manslaughter in a murder case, the trial judge must determine whether evidence of reasonably sufficient provocation occasioned by the victim has been presented to warrant such an instruction.

2. Words alone will not constitute reasonably sufficient provocation to incite the use of deadly force in most situations.

At approximately 6:00 a.m. on October 13, 1989, appellant, Robert Shane II, made a telephone call to the New Philadelphia Police Department to report the death of his fiancee, Tina Wagner. Shane told the police officer who answered the phone, "I'm the one who did it * * *," and " * * * she just drove me crazy and I choked her." Police officers soon responded to the scene, which was an apartment shared by Shane, Wagner, and the couple's infant child.

When the officers entered the apartment, they discovered Wagner's nearly nude body lying on a bed; a red shirt was wrapped tightly around the victim's throat. An autopsy revealed that Wagner had died of asphyxiation by strangulation. Tests done on the victim's body revealed a urine alcohol content of 0.27 grams per deciliter.

Shane was indicted on one count of murder, a violation of R.C. 2903.02, to which he entered a plea of not guilty.

Testifying in his own defense at the trial, Shane again admitted that he had killed Wagner, but told the jury of statements Wagner had made to him immediately prior to the incident, which upset him greatly. Shane stated that Wagner told him she had been sleeping with other men and that she no longer cared for him. Shane testified, "I have never felt more upset and more mad with anyone [in] my entire life." Shane further testified that after he became so upset, the next thing he remembered was "coming to" after having passed out and finding himself lying on the bed with Wagner underneath him.

Before the case went to the jury, the trial judge, in addition to giving the jury an instruction on the charged offense of murder, also instructed the jurors as to the inferior degree of voluntary manslaughter. The trial judge charged that if they found that Shane acted " * * * under the influence of sudden passion or in a sudden fit of rage brought on by serious provocation occasioned by the victim reasonably sufficient to incite him into using deadly force" they must find him guilty of voluntary manslaughter, and that " * * * [t]he burden of going forward with evidence of these mitigating circumstances and the burden of proving them are upon the defendant. He must establish such circumstances by a preponderance of the evidence."

The jury returned a verdict of guilty on the charge of murder. Shane appealed his conviction to the court of appeals, arguing that the jury instruction improperly placed upon him the burden of proving that he acted under the influence of sudden passion or rage. The court of appeals found that the jury instruction on burden of proof was a correct statement of Ohio law, and affirmed the conviction.

Finding its judgment to be in conflict with the judgments of the Court of Appeals for Franklin County in the cases of State v. Griffin (Jan. 19, 1988), No. 86AP-759, unreported, 1988 WL 4651, and State v. Rhodes (Nov. 27, 1990), No. 90AP-289, unreported, 1990 WL 190234, the court of appeals certified the record of the case to this court for review and final determination.

Scott J. Mastin, Asst. Pros. Atty., for appellee.

Gerald A. Latanich, Asst. Public Defender, for appellant.

ALICE ROBIE RESNICK, Justice.

The issue certified for our review is the proper allocation of the burden of proof when a judge gives an instruction on voluntary manslaughter in a murder prosecution. However, for the reasons which follow, we do not reach the certified issue, but affirm the judgment of the court of appeals on different grounds.

The trial judge instructed the jury on voluntary manslaughter prior to its deliberations. Because we determine that the evidence of provocation presented by Shane was insufficient, as a matter of law, to warrant an instruction on voluntary manslaughter, we find that the trial judge should have refused to give the jury an instruction on that offense. The fact that the trial judge did give the instruction was harmless error, particularly in light of this court's determination today in State v. Rhodes (1992), 63 Ohio St.3d 613, 590 N.E.2d 261, that a similar jury instruction was proper.

I

Voluntary manslaughter is an inferior degree of murder, for " 'its elements are * * * contained within the indicted offense, except for one or more additional mitigating elements * * *.' " State v. Tyler (1990), 50 Ohio St.3d 24, 36, 553 N.E.2d 576, 592, quoting State v. Deem (1988), 40 Ohio St.3d 205, 209, 533 N.E.2d 294, 298. See Rhodes, supra, 63 Ohio St.3d at 617, 590 N.E.2d at 263. Even though voluntary manslaughter is not a lesser included offense of murder, the test for whether a judge should give a jury an instruction on voluntary manslaughter when a defendant is charged with murder is the same test to be applied as when an instruction on a lesser included offense is sought. Tyler, supra, 50 Ohio St.3d at 37, 553 N.E.2d at 592.

Thus, a defendant charged with murder is entitled to an instruction on voluntary manslaughter when the evidence presented at trial would reasonably support both an acquittal on the charged crime of murder and a conviction for voluntary manslaughter. Tyler, supra, at 37, 553 N.E.2d at 592; Deem, supra, 40 Ohio St.3d at 211, 533 N.E.2d at 299-300; State v. Thomas (1988), 40 Ohio St.3d 213, 216, 533 N.E.2d 286, 289.

When the evidence presented at trial going to a lesser included offense (or inferior-degree offense) meets this test, the trial judge must instruct the jury on the lesser (or inferior-degree) offense. State v. Loudermill (1965), 2 Ohio St.2d 79, 31 O.O.2d 60, 206 N.E.2d 198, syllabus. On the other hand, when the evidence presented at trial does not meet this test, a charge on the lesser included (or inferior-degree) offense is not required. State v. Kidder (1987), 32 Ohio St.3d 279, 282-283, 513 N.E.2d 311, 315-316.

Past decisions of this court have sometimes given the erroneous impression that, whenever there is "some evidence" that a defendant in a murder prosecution may have acted in such a way as to satisfy the requirements of the voluntary manslaughter statute, an instruction on the inferior-degree offense of voluntary manslaughter must always be given. See, e.g., State v. Muscatello (1978), 55 Ohio St.2d 201, 9 O.O.3d 148, 378 N.E.2d 738, paragraph four of the syllabus. See, also, Tyler, supra, 50 Ohio St.3d at 37, 553 N.E.2d at 592. That clearly never has been the law in this state, nor is it the law today. The "some evidence" referred to in those cases is simply an abbreviated way of saying that a jury instruction must be given on a lesser included (or inferior-degree) offense when sufficient evidence is presented which would allow a jury to reasonably reject the greater offense and find the defendant guilty on a lesser included (or inferior-degree) offense.

To require an instruction to be given to the jury every time "some evidence," however minute, is presented going to a lesser included (or inferior-degree) offense would mean that no trial judge could ever refuse to give an instruction on a lesser included (or inferior-degree) offense. Trial judges are frequently required to decide what lesser included (or inferior-degree) offenses must go to the jury and which must not. The jury would be unduly confused if it had to consider the option of guilty on a lesser included (or inferior-degree) offense when it could not reasonably return such a verdict.

For example, in this case, Shane also requested an instruction on involuntary manslaughter as a lesser included offense of murder, contending that he had presented sufficient evidence to warrant an involuntary manslaughter instruction. The trial judge refused to give an instruction on involuntary manslaughter, and the court of appeals correctly affirmed the trial judge's decision. Even though Shane arguably had presented some evidence of involuntary manslaughter, no jury instruction on that offense was required, because no reasonable jury could have both rejected a finding of guilty on the charged crime and returned a verdict of guilty on the lesser included offense of involuntary manslaughter.

In State v. Huertas (1990), 51 Ohio St.3d 22, 31-32, 553 N.E.2d 1058, 1068-1069, a defendant charged with aggravated murder had requested a jury instruction on voluntary manslaughter. This court determined that the trial judge properly denied the defendant's request, finding that the defendant had more than sufficient time to cool down between the alleged provocation and the killing. See, also, State v. Pierce (1980), 64 Ohio St.2d 281, 18 O.O.3d 466, 414 N.E.2d 1038.

In State v. Deem, supra, the defendant being prosecuted for felonious assault requested a jury instruction on the inferior-degree offense of aggravated assault. The trial judge refused to give the proposed instruction. This court found that, as a matter of law, the defendant did not present sufficient evidence of provocation to be entitled to a jury instruction on aggravated assault. Id., 40 Ohio St.3d at 211, 533 N.E.2d at 300.

Whether the mitigating circumstances of provocation are shown in this case, and therefore whether the evidence presented would reasonably support a conviction for voluntary manslaughter, depend on whether the terms of the voluntary manslaughter statute are met.

Ohio's voluntary manslaughter statute, R.C. 2903.03, reads "(A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by...