State v. Solomon

• Decision Date: 20 May 1981
• Docket Number: No. 80-917,80-917
• Citation: 421 N.E.2d 139,20 O.O.3d 213,66 Ohio St.2d 214
• Parties: , 20 O.O.3d 213 The STATE of Ohio, Appellee, v. SOLOMON, Appellant.
• Court: Ohio Supreme Court

Page 214

66 Ohio St.2d 214

421 N.E.2d 139, 20 O.O.3d 213

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

No. 80-917.

Supreme Court of Ohio.

May 20, 1981.

Syllabus by the Court

1. If one purposely causes the death of another and the death is the result of a scheme designed to implement the calculated decision to kill someone other than the victim, the offender is guilty of aggravated murder in violation of R.C. 2903.01(A).

2. Where the evidence adduced on behalf of the defendant constitutes a complete defense to the substantive elements of the crime charged, an instruction on a lesser included offense should be given to the trier of fact only if, based on the evidence adduced by the state, the trier of fact can find for the defendant and against the state on some element of the greater offense which is not required to prove the commission of the lesser offense and for the state on the elements required to prove the commission of the lesser offense.

On January 24, 1979, Maverick Solomon was indicted for the crime of aggravated murder in violation of R.C. 2903.01(A), and for attempted murder in violation of R.C. 2923.02 and 2903.02. The charges arose out of the shooting death of Martha Glasgow and the wounding of Charles Glasgow. Solomon pled not guilty, and a trial before a jury commenced on June 6, 1979.

At trial it was established that on December 9, 1978, Solomon was involved with a group of people who were helping Glasgow's brother, Willie, move from the east side of Cleveland to the west side of the city. Among the others in the group were Charles Glasgow and Howard and Alfred McClairn. Throughout the day Solomon called Charles Glasgow names and the two boxed with each other. At one point the other people in the moving party had to separate them when their boxing became serious.

After they had completed the move, the participants returned to the east side, eventually going to the apartment of Glasgow's other brother, Terry. Prior to going to Terry's apartment, Solomon had stopped by Charles Glasgow's apartment, which was in the building next door to Terry's where he argued with Charles' wife, Martha.

Glasgow and Solomon continued to yell at each other and fight at Terry's apartment. Glasgow eventually left the apartment and returned with a .38 caliber pistol in his hand. As he re-entered his brother's apartment, the gun discharged wounding Howard McClairn in the mouth. Charles ran over to Howard, saying that he had not intended to shoot him. Charles testified that the gun, which he had thought was unloaded, went off accidentally. Solomon was in another room at the time.

Charles Glasgow testified that as he bent over Howard McClairn, Solomon suddenly appeared with a .22 caliber rifle. Glasgow stated that Solomon used the weapon to shoot and wound him twice, once while they were in Terry's apartment and again in the alley next to Terry's building. Following these shootings, Glasgow testified that he managed to return to his own apartment.

According to Glasgow, about five or ten minutes later, Solomon and Alfred McClairn came to the rear door of his apartment, Solomon with a .22 caliber rifle and McClairn with a 12 gauge shotgun. McClairn came into the apartment and Glasgow managed to convince him to give up the shotgun which Glasgow's wife, Martha, then placed in the bedroom. Glasgow then testified that Solomon forced his way into the apartment, shooting what appeared to be the rifle and hitting Martha in the throat. After standing in the doorway for a while, Solomon ran down the steps.

Alfred McClairn essentially confirmed Glasgow's testimony regarding the shooting of Martha, although McClairn testified that Martha was struggling to keep Solomon out at the doorway of the apartment when she was shot. Two witnesses, the caretaker of Charles Glasgow's building and his common law wife, testified that after hearing gunshots they saw Solomon with a long weapon or rifle in his hand.

Dr. Ross E. Zumwalt of the Cuyahoga County coroner's office testified that one of two bullets he had recovered from Martha's body had caused her death. James Stimson, a detective in the Cleveland Police Department laboratory, testified that the bullets recovered from Martha's body were fired from a .22 caliber weapon of some sort and could not have been fired from a 12 gauge shotgun.

Solomon testified on his own behalf. He admitted that he had argued and boxed with Glasgow throughout the day, but denied possessing or firing a .22 caliber rifle. He claimed that he had not entered Glasgow's apartment following the shooting of Howard McClairn, but that he had observed Alfred McClairn go up to the apartment with a pump shotgun and that he later heard a gunshot.

At the close of the trial, the trial judge refused to instruct the jury that it could find Solomon guilty of murder in violation of R.C. 2903.02, or voluntary manslaughter in violation of R.C. 2903.03, rather than of aggravated murder. In addition, the trial judge instructed the jury that it could find that Solomon had purposely caused the death of Martha Glasgow with prior calculation and design even though his intent was to kill Charles Glasgow.

On June 12, 1979, the jury found Solomon guilty of aggravated murder and attempted murder. He was sentenced to a term of life imprisonment for the aggravated murder and a term of four to twenty-five years for the attempted murder, the sentences to be served concurrently. The Court of Appeals for Cuyahoga County affirmed the judgment. The cause is now before this court upon the allowance of a motion for leave to appeal. ^*

John T. Corrigan, Pros. Atty., and Eloise G. Cookson, Cleveland, for appellee.

Paul F. Markstrom, Cleveland, for appellant.

CELEBREZZE, Chief Justice.

Appellant argues that the judgment of the Court of Appeals should be reversed because the trial court erred in instructing the jury that it could find that appellant had purposely caused Martha Glasgow's death with prior calculation and design even if it found that he planned to cause Charles Glasgow's death. Appellant further contends that the trial court erred in failing to instruct the jury on the lesser included offenses of murder and voluntary manslaughter.

In Wareham v. State (1874), 25 Ohio St. 601, this court held that a person could be convicted of second degree murder even if purpose and malice were directed at a person other than the actual victim. In so holding, the court stated, at page 607:

" * * * The intent to kill and the malice followed the blow, and if another was killed the crime is complete; and if deliberation and premeditation are added to the essential ingredients of murder in the second degree, the crime would be murder in the first degree. The purpose and malice with which the blow was struck is not changed in any degree by the circumstance that it did not take effect upon the person at whom it was aimed. The purpose and malice remain, and if the person struck is killed, the crime is as complete as though the person against whom the blow was directed had been killed, the lives of all persons being equally sacred in the eye of the law, and equally protected by its provisions. A blow given with deliberate and premeditated malice and with the intent and purpose to kill another, if it accomplished its purpose, can not be said to have been given without malice and unintentionally, although it did not take effect upon the person against whom it was directed. * * * "

In this passage from Wareham, this court recognized that when there is malice and premeditation, even if it is aimed at someone other than the victim, the mental state of the killer is as culpable as if he premeditated the death of the actual victim. The court held that when this mental state is combined with the act of causing the death of another, the resulting offense is to be treated as if the death of the actual victim were planned.

R.C. 2903.01(A), in defining aggravated murder, states:

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

In State v. Cotton (1978), 56 Ohio St.2d 8, 381 N.E.2d 190, this court discussed the term "prior calculation and design," as used in R.C. 2903.01(A), which had replaced the requirement of premeditation and deliberation when the General Assembly enacted a new Criminal Code in 1974. The court stated, at page 11, that "(t)he apparent intention of the General Assembly in employing this phrase was to require more than the few moments of deliberation permitted in common law interpretations of the former murder statute, and to require a scheme designed to implement the calculated decision to kill. Thus, instantaneous deliberation is not sufficient to constitute 'prior calculation and design.' "

As with premeditation, the culpability of a scheme designed to implement the calculated decision to kill is not altered by the fact that the scheme is directed at someone other than the actual victim. Therefore, we hold that if one purposely causes the death of another and the death is the result of a scheme designed to implement the calculated decision to kill someone other than the victim, the offender is guilty of aggravated murder in violation of R.C. 2903.01(A).

R.C. 2945.74 states, in part:

"The jury may find the defendant not guilty of the offense charged, but guilty of an attempt to commit it if such attempt is an offense at law. When the indictment or information charges an offense, including different degrees, or if other offenses are included within the offense charged, the jury may find the defendant not guilty of the degree charged but guilty of an inferior degree thereof or lesser included offense."

R.C. 2903.02 states:

"(A) No person shall purposely cause the death of another.

"(B) Whoever violates this section is guilty of murder * * *."

R.C. 2903.03 states:

"(A) No person, while under extreme emotional stress brought on by serious provocation reasonably sufficient...