State v. Underwood
| Decision Date | 16 February 1983 |
| Docket Number | No. 82-278,82-278 |
| Citation | 3 OBR 360,3 Ohio St.3d 12,444 N.E.2d 1332 |
| Parties | , 3 O.B.R. 360 The STATE of Ohio, Appellant, v. UNDERWOOD, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
The failure to object to a jury instruction constitutes a waiver of any claim of error relative thereto, unless, but for the error, the outcome of the trial clearly would have been otherwise. (State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 , approved and followed.)
The defendant, Jerry E. Underwood, was indicted for the aggravated murder of Linda D. Walker. The defendant and Mrs. Walker had a long and stormy relationship, with frequent and lengthy separations. The relationship produced at least one child, Antonio, who was five years old when his mother died. During one separation, Linda married Richard Walker, through whom she conceived her second son, Teddy. Linda's third child, Lachanda, was born in January 1979. The defendant believed Lachanda was his daughter.
In early April 1980, the defendant and Linda contemplated living together in an apartment on Colerain Avenue in Cincinnati. The defendant moved various items of furniture into the apartment, as well as some personal items. When the defendant returned to the apartment on April 16, he found that Linda had taken nearly all of the household goods. He later discovered that Linda and her children had moved in with a friend, Debra Black, and her two infant children.
On May 27, 1980, the defendant, armed with a knife, went to the apartment where Linda was living. An altercation ensued, resulting in Linda suffering nine stab wounds, one bullet wound and eventual death.
The most important witness for the state was Patricia Black, the fourteen-year old sister of Debra Black. Patricia testified that she was in the living room of her sister's apartment with the infant Lachanda and Debra's two children, when the defendant arrived about 5:25 p.m. She further testified that the defendant entered the apartment with a knife in his right hand and asked her where Linda was. Linda then entered the room. The defendant and Linda began arguing and yelling. He began to slap and beat Linda and told her:
" * * * you better kiss your little girl goodby because you are going to die."
During the struggle Linda was able to obtain a gun, evidently from her purse. The gun was fired twice. The first shot hit the apartment ceiling. The second shot penetrated Linda's chest, lung and heart. Patricia testified that she saw the gun in the defendant's hand immediately prior to the second shot.
The chief deputy coroner testified that the decedent also received nine stab wounds, five of which were superficial. Two stab wounds in the back struck a lung and two went to the bone of the shoulder.
The defendant's defense was accident. The defendant testified that he and Linda argued about the children. "I got angry for the reason Teddy and them were outside with nobody guarding them and Lachanda was laying there naked." The defendant also testified that prior to May 27, 1980, he had last seen Linda on April 25, 1980.
The trial court charged the jury on aggravated murder, murder and voluntary manslaughter. The jury was also charged on the complete defense of accident.
The charge on voluntary manslaughter placed the burden upon the state to prove "extreme emotional stress," as described in former R.C. 2903.03, beyond a reasonable doubt. The charge was the same as the charge found to be improper in State v. Muscatello (1978), 55 Ohio St.2d 201, 378 N.E.2d 738 .
No objection was made to the charge. To the contrary, defense counsel stated that he had been given a copy of the prepared charge a full day before the trial ended and that he was in complete agreement with the charge. Upon deliberations, the jury found the defendant guilty of murder.
On appeal the court of appeals reversed the defendant's conviction finding the charge on voluntary manslaughter to be plain error.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Simon L. Leis, Jr., Pros. Atty., and William E. Breyer, Asst. Pros. Atty., for appellant.
Robert Blackmore and Elizabeth Agar, Cincinnati, for appellee.
The sole issue in this case is whether the charge on voluntary manslaughter was plain error.
The same charge was found to be plain error in State v. Muscatello (1977), 57 Ohio App.2d 231, 387 N.E.2d 627 . The Court of Appeals for Cuyahoga County reversed Muscatello's murder conviction for this reason as well as two other assignments of error not relevant to this opinion. We affirmed that court's decision in State v. Muscatello (1978), 55 Ohio St.2d 201, 378 N.E.2d 738 ; however, we did not address the plain error issue.
Absent plain error, the failure to object to improprieties in jury instructions, as required by Crim.R. 30, is a waiver of the issue on appeal. State v. Williams (1977), 51 Ohio St.2d 112, 364 N.E.2d 1364 ; State v. Humphries (1977), 51 Ohio St.2d 95, 364 N.E.2d 1354 .
The trial court's instruction on voluntary manslaughter at least inferentially placed upon the defendant the burden to prove beyond a reasonable doubt the emotional stress, as described in former R.C. 2903.03. After the amendment of R.C. 2901.05, effective November 1, 1978, the defendant had the burden of proof by only a preponderance of the evidence.
We agree with the court of appeals that there was sufficient evidence to raise the issue of the mitigating circumstances of extreme emotional stress, which, if believed by the trier of fact, would support a verdict of voluntary manslaughter. We are also of the opinion that under the facts of the instant case the charge on the lesser included offense of voluntary manslaughter was not inconsistent with the complete defense of accident.
We have held that a jury instruction which improperly places the burden of proof upon a defendant "does not constitute a plain error or defect...
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State v. Skatzes, 2004 Ohio 6391 (OH 12/8/2004), Case No. 2003-0487.
...of each kidnapping charge. {¶52} Skatzes's failure to object to the instructions waives all but plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus. Plain error "should be applied with utmost caution and should be invoked only to prevent a clear mis......
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...except where noted, trial counsel failed to object and waived all but plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 13-14, 3 OBR 360, 444 N.E.2d Additionally, Davis argues that counsel's failure to object constituted ineffective assistance of counsel. {¶ 178} First, Davis argues ......
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...failed to object at trial and preserve for review any issue relating to the jury verdict as a recommendation. State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus; Crim.R. 30(A). In fact, no error occurred. State v. Woodard (1993), 68 Ohio St.3d 70, 76-77, 623 N.......
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...most of the deficiencies he alleges and, thus, waived all but plain error as to those issues. Crim.R. 30(A); State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus. We find that none of the alleged defects qualifies as outcome-determinative and, therefore, no plain......