State v. Sudderth, 2008 Ohio 5115 (Ohio App. 9/29/2008)
| Decision Date | 29 September 2008 |
| Docket Number | No. 07CA38.,07CA38. |
| Citation | 2008 Ohio 5115 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Isaiah C. Sudderth, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
W. Joseph Edwards, 523 South Third Street, Columbus, Ohio 43215, Attorney for Appellant1.
J.B. Collier, Lawrence County Prosecuting Attorney, and Jeffrey M. Smith, Assistant Prosecuting Attorney, Lawrence County Courthouse, One Veteran's Square, Ironton, Ohio 45638, Attorney for Appellee.
DECISION AND JUDGMENT ENTRY
{¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment of conviction and sentence. The jury found Isaiah C. Sudderth, defendant below and appellant herein, guilty of murder with a firearm specification, in violation of R.C. 2903.02(A) and R.C. 2941.145.
{¶ 2} Appellant raises the following assignments of error for review:
{¶ 3} On June 17, 2007, several individuals celebrated Father's Day and drank alcoholic beverages at the American Legion. Later that evening, two of the individuals, Kristen Snyder and Kim Salmons argued over the telephone. Snyder, her cousin (Damon Pringle) and some friends (Michelle Lewis, Ian Edens, and Jamar Boykin) then walked to Salmons' apartment, apparently to continue the argument. After entering Salmons' kitchen, Snyder and Salmons began to argue. Appellant, Salmons' boyfriend, apparently said something to Snyder to anger Pringle. Pringle then began punching appellant's face. After five to six minutes, Pringle stopped hitting appellant. Appellant then told Damon "he was cool and he just wanted to use the bathroom." Instead of using the bathroom, appellant went upstairs, retrieved a gun, and returned to the kitchen where he shot Pringle. Pringle died from the gunshot wounds.
{¶ 4} The Lawrence County Grand Jury returned an indictment charging appellant with murder with a firearm specification. At trial, the evidence showed that Pringle was shot four times — once in the chest and four times in the back. The individuals present in Salmons' apartment all testified that the fight between Pringle and appellant had ended when appellant went upstairs. None of them heard Pringle threaten appellant, brandish any type of weapon, or make an aggressive move toward appellant once appellant returned with the gun.
{¶ 5} Appellant, however, testified that Pringle threatened him. Appellant claimed that Pringle stated that he would kill him, stab him, and cut his throat. Appellant explained that after Pringle stopped hitting him, he was sitting, trying to be "cool." He told Pringle he needed to use the bathroom. Appellant went upstairs and grabbed a gun. As he came downstairs, Pringle lunged at him. After that, things happened quickly — "it was like pow, pow, pow, pow, pow, real quick shots." Appellant stated that when he shot Pringle, he did not feel the threat had ended.
{¶ 6} After the parties presented their evidence, the trial court noted that there had been some discussion regarding a lesser included charge for manslaughter. In response, defense counsel stated:
"[Appellant] indicated to me repeatedly that he does not want any lesser includ[ed] voluntary manslaughter instruction. He wants the jury to come back with murder or not guilty. That's correct, isn't it Isaiah?
[Appellant]: Yes sir.
[Counsel]: And we have talked about that repea[t]edly.
[Appellant]: Yes we did.
[Counsel]: And you are asking me to ask the court not put instruction in for voluntary manslaughter?
[Appellant]: Exactly, yes.
[Counsel]: Just guilty or not guilty on what he is [i]ndicted for.
Which is the murder charge."
{¶ 7} The jury found appellant guilty of murder with a firearm specification. The trial court sentenced appellant to serve three years in prison on the firearm specification and fifteen years to life on the murder conviction. This appeal followed.
{¶ 8} In his first assignment of error, appellant asserts that the trial court erred by failing to instruct the jury on voluntary manslaughter. Appellant recognizes that he specifically decided against a voluntary manslaughter instruction, but appears to argue that the trial court had an independent duty to give the instruction because his "self-defense argument was speculative at best."
{¶ 9} Initially, we note that appellant invited any error with respect to the court's failure to give a voluntary manslaughter instruction. The invited error doctrine provides that a party may not "take advantage of an error which he himself invited or induced." Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20, 502 N.E.2d 590, paragraph one of the syllabus; see, also, State v. Davis 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, at ¶53; State ex rel. V. Cos. v. Marshall (1998), 81 Ohio St.3d 467, 471, 692 N.E.2d 198. Here, appellant explicitly decided to forego a voluntary manslaughter instruction so that the jury's choice was to convict him of murder or to find him not guilty. Under these circumstances, he invited any error, and we could overrule his first assignment of error on this basis alone. Nonetheless, in the interests of justice we will review the merits of his assignment of error.
{¶ 10} Generally, a trial court has broad discretion to decide how to fashion jury instructions. The trial court must not, however, fail to "fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder." State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640, paragraph two of the syllabus. Additionally, a trial court may not omit a requested instruction, if such instruction is "`a correct, pertinent statement of the law and [is] appropriate to the facts * * *.'" State v. Lessin (1993), 67 Ohio St.3d 487, 493, 620 N.E.2d 72 ().
{¶ 11} In determining whether to give a requested instruction, a trial court may inquire into the sufficiency of the evidence to support the requested instruction. See id. at 494. A trial court is vested with discretion to determine whether sufficient evidence was presented at trial to require a particular jury instruction. State v. Mitts (1998), 81 Ohio St.3d 223, 228, 690 N.E.2d 522. If, however, the evidence does not warrant an instruction, or if an instruction is not appropriate in light of the crime charged, a trial court is not obligated to give the instruction. See Lessin, 67 Ohio St.3d at 494. Thus, in our review we must determine whether the trial court abused its discretion by finding that the evidence was insufficient to support the requested charge or that the requested instruction was not pertinent to the crime charged. See Mitts; State v. Wolons (1989), 44 Ohio St.3d 64, 541 N.E.2d 443, paragraph two of the syllabus; see, also, State v. Elijah (July 14, 2000), Montgomery App. No. 18034. Generally, an abuse of discretion may be found if the trial court's attitude was unreasonable, arbitrary or unconscionable. See, e.g., State v. Montgomery (1991), 61 Ohio St.3d 410, 413, 575 N.E.2d 167.
{¶ 12} Voluntary manslaughter is an inferior degree of murder. See State v. Shane (1992), 63 Ohio St.3d 630, 632, 590 N.E.2d 272. R.C. 2903.03(A) defines "voluntary manslaughter" and provides: "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 the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another * * *." A defendant on trial for 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." Shane, 63 Ohio St.3d at 632.
{¶ 13} Before a trial court gives a voluntary manslaughter instruction in a murder case, the court first must determine "whether evidence of reasonably sufficient provocation occasioned by the victim has been presented to warrant such an instruction." State v. Elmore 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, at ¶81, citing Shane, paragraph one of the syllabus. "In making that determination, trial courts must apply an objective standard: `For provocation to be reasonably sufficient, it must be sufficient to arouse the passions of an ordinary person beyond the power of his or her control.'" Id., quoting Shane, 63 Ohio St.3d at 635. "If insufficient evidence of provocation is presented, so that no reasonable jury would decide that an actor was reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give a voluntary manslaughter instruction." Shane, 63 Ohio St.3d at 634.
{¶ 14} Once the court finds that the evidence shows that the defendant was sufficiently provoked under the objective standard, the inquiry shifts to a subjective standard: whether the defendant actually was under the influence of sudden passion or in a sudden fit of rage. See id. Ordinarily, "[w]ords alone will not constitute reasonably...
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...2222, at ¶29, quoting State v. Perdue, 153 Ohio App.3d 213, 2003 Ohio 3481, at ¶12, 792 N.E.2d 747; see, also, State v. Sudderth, Lawrence App. No. 07CA38, 2008 Ohio 5115, at ¶14; State v. Hendrickson, Athens App. No. 08CA12, 2009 Ohio 4416, at ¶45-46; State v. Caldwell (Dec. 17, 1998), Fra......