State v. Warmus

• Decision Date: 10 November 2011
• Docket Number: No. 96026.,96026.
• Citation: 197 Ohio App.3d 383,967 N.E.2d 1223,2011 -Ohio- 5827
• Parties: The STATE of Ohio, Appellee, v. WARMUS, Appellant.
• Court: Ohio Court of Appeals

197 Ohio App.3d 383

967 N.E.2d 1223

2011 -Ohio- 5827

The STATE of Ohio, Appellee,

v.WARMUS, Appellant.

No. 96026.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Nov. 10, 2011.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Lauren Bell, Aaron Brockler, and Daniel A. Cleary, Assistant Prosecuting Attorneys, for appellee.

David L. Doughten and Robert A. Dixon, Cleveland, for appellant.

MELODY J. STEWART, Presiding Judge.

[Ohio App.3d 390]{¶ 1} A jury found defendant-appellant, Matthew Warmus, guilty of murdering a parking-lot attendant in a dispute over a parking fee, rejecting his claim that he acted in self-defense. In this appeal, he sets forth 11 assignments of error that collectively raise issues concerning the court's admission of testimony, the jury instructions, ineffective assistance of counsel, and the imposition of a fine.

{¶ 2} The relevant facts of this case are stated in summary form. The state showed that Warmus and his female companion for the evening entered a downtown Cleveland parking lot that advertised $10 parking. Warmus parked in a space next to the lot entrance, but the victim-attendant, David Williams, told him that he had parked in a $20 parking space. Believing he was being cheated, Warmus began to argue with Williams. The argument escalated, and Warmus pushed Williams. Williams pushed back, and the two men grappled until Williams put Warmus in a headlock and punched him three times. During this struggle, the attendant told Warmus's companion to “calm your boy down.” The companion told Williams that they would leave, so he released Warmus and went to assist other drivers who had entered the lot. Warmus went to the trunk of his car and retrieved a handgun. He pointed the gun at Williams and told him to get on the ground. Williams began reaching for his own gun when Warmus fired three shots from a range of no more than three feet: one shot struck Williams in the back of the head; the other two struck him in the abdomen.

{¶ 3} Warmus claimed to have acted in self-defense. He said that Williams's headlock caused him to lose his breath. Once released from the hold, he said that he struggled to regain his breath and heard Williams tell him to leave. Warmus replied that he was going to call the police and the owner of the parking lot to complain. At that point, Williams said, “[N]o you're not,” and pulled out a gun. Warmus said he walked to his car, opened the trunk, and grabbed his gun. Warmus pointed the gun at Williams and told him to drop his gun, but Williams refused. Warmus then “shot until [Williams's] gun wasn't in his hand anymore.” He placed his gun back in the trunk of the car and called the police to report the shooting.

{¶ 4} Eyewitnesses disputed Warmus's version of events. Although all of the eyewitnesses saw Warmus shoot Williams, none of them saw Williams holding a gun, much less pointing one at Warmus (one witness saw Williams reaching for his gun as Warmus shot him). When the police arrived, Warmus said that he knew Williams from a similar interaction a month earlier when he tried to park in the same spot and was charged an additional fee, saying, “I know him. We argued over this in the past.” As Warmus sat in a police cruiser following his arrest, he told an officer that after Williams released him from the headlock, he [Ohio App.3d 391]went back to selling parking spaces. And at no point in speaking with the officer, or at any other point in the investigation, did Warmus say that he acted in self-defense. The police also found it unusual that a number of witnesses approached them after the fact to report the shooting. One of them appeared to embody the views of these witnesses by saying that she did so because she “felt that if nobody was witness for [Williams], because he was wrongly shot, I thought I should stand up for him.”

I

{¶ 5} Warmus's first assignment of error is that the court abused its discretion by allowing state witnesses to offer their opinion on key elements of self-defense—primarily their opinions that Warmus was not acting reasonably in his use of force and that he could have or should have safely retreated without using force. He complains that these opinions amounted to opinion testimony on whether he was justified in using deadly force to defend himself. He argues that justification for deadly force was a question of fact for the jury and that the so-called expert testimony usurped this function.

A

{¶ 6} The elements of self-defense are that “(1) the defendant was not at fault in creating the violent situation, (2) the defendant had a bona fide belief that she was in imminent danger of death or great bodily harm and that her only means of escape was the use of force, and (3) that the defendant did not violate any duty to retreat or avoid the danger.” State v. Thomas (1997), 77 Ohio St.3d 323, 326, 673 N.E.2d 1339, citing State v. Williford (1990), 49 Ohio St.3d 247, 249, 551 N.E.2d 1279.

{¶ 7} Ohio uses a subjective test to determine whether the defendant held a bona fide belief of imminent danger, death, or great bodily harm. The defendant acts in self-defense if he “honestly believes” that death or great bodily harm is imminent and that the only means of escape from such danger is in the use of deadly force. State v. Sallie (1998), 81 Ohio St.3d 673, 676, 693 N.E.2d 267, citing State v. Koss (1990), 49 Ohio St.3d 213, 215, 551 N.E.2d 970.

{¶ 8} Though the defendant bears the burden of proving self-defense by a preponderance of the evidence, State v. Jackson (1986), 22 Ohio St.3d 281, 283, 490 N.E.2d 893, this does not mean that the state is barred from offering evidence to rebut the assertion of the affirmative defense in its case-in-chief. The state may offer testimony on the circumstances surrounding the events leading to the use of self-defense as a means of rebutting the defendant's assertion that he honestly believed the use of deadly force was in response to an imminent threat [Ohio App.3d 392]of death or great bodily harm. The question in this appeal is whether the state's witnesses may offer their opinion that the circumstances did not justify the defendant's use of deadly force.

{¶ 9} Although some of the witnesses were current or retired law-enforcement officers, none were offered as expert witnesses. An “expert” witness is allowed to testify to matters beyond the knowledge or experience possessed by lay persons if the witness has specialized knowledge or skill and the witness's testimony is based on reliable scientific, technical, or other specialized information. See Evid.R. 702. The law-enforcement officers were offered as fact witnesses because they actually witnessed the shooting. And the conclusions they drew about Warmus's state of mind at the time were not based on any specialized knowledge or training but were, like those of the civilian witnesses who gave similar testimony, premised on their perception of events as they witnessed them.

{¶ 10} A witness who is not an “expert” may testify to opinions, but is “limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.” See Evid.R. 701. We have interpreted Evid.R. 701 to allow a lay witness to express opinions that “merely summarize complex factual observations, which testimony is a composite of fact and opinion.” State v. Morris (1982), 8 Ohio App.3d 12, 16, 455 N.E.2d 1352.

{¶ 11} Importantly, a lay witness cannot testify only to a “fact in issue” but can also testify to “an ultimate issue.” Evid.R. 704 states that the testimony of a witness “in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact.” Neither Evid.R. 701 nor 704 limits the subject matter of lay-opinion testimony, so “there is no theoretical prohibition against allowing lay witnesses to give their opinions as to the mental states of others.” United States v. Rea (C.A.2, 1992), 958 F.2d 1206, 1214–1215 (construing analogous federal rules). For example, it has been stated that “[l]ay opinion of a witness as to a person's sanity is admissible if the witness is sufficiently acquainted with the person involved and has observed his conduct” and has personal knowledge “regarding the person's unusual, abnormal or bizarre conduct.” United States v. LeRoy (C.A.10, 1991), 944 F.2d 787, 789. See also State v. Nicholas (July 30, 1986), 1st Dist. No. C–850713, 1986 WL 8407 (when an insanity defense was raised, lay opinion of a police officer concerning the defendant's mental state was appropriate on ability to perceive and respond to the display of authority of uniformed officers at the scene).

{¶ 12} Allowing an opinion as to whether a defendant had the required state of mind when acting in self-defense is not the same thing as allowing a lay witness [Ohio App.3d 393]to express an opinion as to what the witness would have done in similar circumstances. In State v. Johnson, 10th Dist. No. 02AP–373, 2002-Ohio-6957, 2002 WL 31819643, the court held that it was improper for police officers who did not witness the crime to state that based on their training as law-enforcement officers and faced with the same facts and circumstances as presented in the case, they would not have shot another in an act of self-defense as claimed by the defendant. These statements were inadmissible as lay opinion because they were not helpful to the jury—neither police officer in Johnson actually witnessed the crime, so their conclusions based on the same facts as heard by the jury failed to meet the Evid.R. 701 test of aiding the trier of fact in deciding an ultimate issue. Id. at ¶ 36.Johnson held that the jury was just as capable of drawing conclusions from the evidence as were the police officers who did not actually witness the crime.

B

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