State v. Wolons, 88-209

• Decision Date: 05 July 1989
• Docket Number: No. 88-209,88-209
• Citation: 541 N.E.2d 443,44 Ohio St.3d 64
• Parties: The STATE of Ohio, Appellant, v. WOLONS, Appellee.
• Court: Ohio Supreme Court

Page 64

44 Ohio St.3d 64

541 N.E.2d 443

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

No. 88-209.

Supreme Court of Ohio.

Submitted March 7, 1989.

Decided July 5, 1989.

Syllabus by the Court

1. A party does not waive his objections to the court's charge by failing to formally object thereto (1) where the record affirmatively shows that a trial court has been fully apprised of the correct law governing a material issue in dispute, and (2) the requesting party has been unsuccessful in obtaining the inclusion of that law in the trial court's charge to the jury. (Crim.R. 30[A], construed.)

2. It is within the sound discretion of the trial court to determine whether the evidence presented at trial is sufficient to require a jury instruction on intoxication where the accused claims that his inebriated condition negated the mental state required as an element of the crime charged. Friday, March 7, 1986, was payday at Overseas Packing Company where defendant-appellee, Edward Wolons, was employed. At 4:30 in the afternoon, defendant and co-workers, Russell Klein, Robert Corrao and Ronnie Cantwell, went to the Nottingham Tavern to cash their checks. The four stayed at the Nottingham Tavern for approximately one and one-half to two hours and according to Klein and Corrao each had four or five beers. Defendant testified that he drank about eight beers. They left the Nottingham Tavern and went to the Corner Cafe across the street and each consumed three to four more beers, staying approximately one hour. Defendant testified that after the group left the Corner Cafe, they stopped to buy a twelve-pack of beer. None of the other witnesses mentioned this purchase.

The group proceeded from the Corner Cafe to Cantwell's apartment where they stayed approximately one hour. Here, the testimony conflicts as to whether any alcohol was consumed. Defendant testified that they had one or two more beers, but Klein did not recall that they had anything to drink during their stay at Cantwell's apartment. Klein also testified that he was sober at this point and that the others seemed to be conducting themselves well.

At approximately 8:30 p.m., Corrao, Klein and defendant left Cantwell's apartment and went to defendant's parents' home. Defendant invited his brother, Robert Wolons, to come to his apartment to spend the night. The group was in good spirits at this time in the evening. Corrao testified that no one seemed intoxicated when they left the Wolonses' house and that Edward Wolons showed no signs that alcohol affected him either after their visit to the Nottingham Tavern or to the Corner Cafe.

Corrao left for his own home after dropping off Klein and the Wolons brothers at defendant's apartment at approximately 9:00 p.m. Edward and Klein had an argument as they entered the building and as they reached the landing that separated their apartments at the top of the stairs. Klein then went to his apartment and Edward and Robert entered Edward's apartment.

Five to ten minutes later, Klein crossed the hall to apologize, but Edward refused the apology and rudely ordered Klein to get out. Robert tried to mediate without success.

As the argument between Klein and Edward ended, Edward's cousin, Jeffrey Sams, arrived with another friend, John Ruffing. According to Sams, the Wolons brothers appeared glad to see each other, as they had not been together for a couple of weeks. Sams testified that he and Ruffing each had one beer, that Edward and Robert also drank, but that he could not say that Edward was completely intoxicated at that point. The four men then went to two discotheques, where each had a total of three drinks. They then purchased a twelve-pack of beer before returning to Edward's apartment. They had three or four more beers before Sams and Ruffing left sometime before midnight. Sams characterized Robert as "very intoxicated" and Edward as "intoxicated."

After Sams and Ruffing left, Edward and Robert had a few more beers. The brothers began arguing, although Edward testified that they had no physical altercation. However, at about 3:00 a.m. the argument was loud enough to wake Klein who was across the hall and Tracy Koester who was in the apartment below Klein's. Sometime between 3:00 and 3:30 a.m., Edward was in the kitchen cutting sausage for a pizza. He testified that, as he stood with the dining room to his left, he heard a noise, and, as he turned around with the kitchen knife in his hand, he saw Robert coming at him and that the knife went into Robert. When Robert dropped to the floor from the knife wound, Edward left the apartment to seek help. He ran down the stairs to knock on Tracy Koester's apartment door since she had the only phone in the building. When he got no answer, Edward went to Klein's apartment, knocked, and asked for help. Klein emerged and crossed the hall with Edward. Klein went into Edward's apartment, where he saw the dining room table upside down, and crates smashed. Robert was on the kitchen floor, apparently unconscious. He died four days later.

A Cuyahoga County Grand Jury returned an indictment charging defendant with murder pursuant to R.C. 2903.02 for the stabbing death of his brother Robert. A jury returned a verdict of guilty, and defendant was sentenced to an indefinite term of incarceration of fifteen years to life.

At trial, the court stated that it would instruct on "accident, murder, no lesser or included, no alcohol, or call it intoxication * * *." When defense counsel asked why no instruction on intoxication would be given, the court responded that he had read all the cases and that the defendant must show that he "was totally out of it, and had no recollection, knowledge or otherwise, or evidence on the factual picture which is certainly not the case from his own testimony in this case."

Although defendant did not specifically object to this decision, a colloquy ensued in which counsel and the trial court discussed cases relevant to the issue of intoxication as a defense. ¹

On defendant's appeal of his conviction, the court of appeals noted that defendant had failed to object to the jury instructions as required by Crim.R. 30, but concluded that Crim.R. 52 relating to plain error was applicable to the case. The court of appeals reversed defendant's murder conviction and held that the trial court had committed plain error by failing to instruct on intoxication, as sufficient evidence had been presented to require the instruction. The court ordered a new trial.

The cause is now before this court upon the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., and Paul J. Myles, for appellant.

Bernard, Haffey & Bosco Co., L.P.A., and J. Ross Haffey, Jr., Cleveland, for appellee.

MOYER, Chief Justice.

We first must determine whether the defendant waived his right to appeal the denial of his request that the jury be instructed on the law of intoxication. We are asked to extend to criminal cases our holding in Presley v. Norwood (1973), 36 Ohio St.2d 29, 65 O.O.2d 129, 303 N.E.2d 81.

In Presley we considered Civ.R. 51(A), which contains language almost identical to Crim.R. 30(A). Under both rules, a party "may not assign as error the giving or failure to give any instruction ['instructions,' in Crim.R. 30(A) ] unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection."

Civ.R. 51 has been construed in the same manner as Fed.R.Civ.P. 51. A party is deemed not to have waived his objection to the court's failure to give a requested jury instruction or to the charge actually given if the record affirmatively shows that the trial court has been fully apprised of the correct law governing a material issue in dispute. Presley, supra, at 33, 65 O.O.2d at 131, 303 N.E.2d at 84-85. This interpretation of the rule is consistent with the rule's purpose because the distinction between "general" and "special" charges has been abolished by the modern rules of practice, and if a party makes his position sufficiently clear to give the court an opportunity to correct a mistake or defect, then the rationale for formally objecting is no longer present.

This interpretation is applicable when reviewing a trial court's failure to give a requested jury instruction in criminal cases pursuant to Crim.R. 30(A), since the language of Crim.R. 30(A) regarding objections is virtually identical to Civ.R. 51(A). Therefore, in a criminal case, where the record affirmatively shows that a trial court has been fully apprised of the correct law governing a material issue in dispute, and the requesting party has been unsuccessful in obtaining the inclusion of that law in the trial court's charge to the jury, such party does not waive his objections to the court's charge by failing to formally object thereto. Crim.R. 30(A).

The defendant's counsel and the trial court had an extensive discussion of the cases relevant to the issue of whether the trial court should give the requested jury instruction on intoxication. Defendant attempted to persuade the court that the evidence and cases supported his position, and it is clear that the trial court understood his objection to the court's refusal to so instruct. We therefore hold that defendant did not waive his objection by failing to object, on the record, at the end of his discussion with the trial court.

Because we have adopted the Presley rationale for criminal cases and Crim.R. 30(A), we need not consider the propriety of the court of appeals' decision to determine the issue based on the plain-error rule pursuant to Crim.R. 52(B).

We next consider whether the trial court erred in refusing defendant's request that the jury be instructed that defendant raised voluntarily induced intoxication as a defense to the specific...