State v. Woods

• Decision Date: 01 December 1976
• Docket Number: 76-155,Nos. 76-137,s. 76-137
• Citation: 2 O.O.3d 289,357 N.E.2d 1059,48 Ohio St.2d 127
• Parties: , 2 O.O.3d 289 The STATE of Ohio, Appellee, v. WOODS, Appellant. The STATE of Ohio, Appellee, v. REAVES, Appellant.
• Court: Ohio Supreme Court

Page 127

48 Ohio St.2d 127

357 N.E.2d 1059, 2 O.O.3d 289

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

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

Nos. 76-137, 76-155.

Supreme Court of Ohio.

Dec. 1, 1976.

Syllabus by the Court

1. A 'criminal attempt' is when one purposely does or omits to do anything which is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. To constitute a substantial step, the conduct must be strongly corroborative of the actor's criminal purpose. (R.C. 2923.02(A) construed.)

2. Within the meaning of the standard for mitigation of the death sentence for aggravated murder in R.C. 2929.04(B), duress or coercion may be established by proof that force, threat of force, strong persuasion or domination by another, necessitous circumstances, or some combination of these, has overcome the mind or volition of the defendant so that he acted other than he ordinarily would have acted in the absence of those influences.

Shortly after midnight on July 17, 1974, the Cincinnati police received a telephone call from a woman who said that she had seen a man on the roof of the United Dairy Farmers store at 2373 Florence Avenue in Cincinnati. That information was broadcast to patrol cars in the area and several officers responded. One of the officers, Patrolman Terry Kramer, observed two men looking over their shoulders while walking on Florence Avenue in the vicinity of the store, and he reported that information over the police radio. Another officer, Patrolman David Cole, also responded to the broadcast and was approaching the scene along Florence Avenue.

Just after he made his broadcast, Patrolman Kramer heard a series of gunshots. Other officers also heard the shots and came to the scene. Patrolman Cole was lying in the street at the rear of his cruiser, dying from multiple gunshot wounds. Cole was pronounced dead on arrival at the hospital, and the subsequent autopsy and ballistics examination disclosed that he had been shot by both a .22 and a .38 caliber weapon.

Roland Reaves, the defendant in case No. 76-155, was arrested on July 18, 1974, in Cincinnati and subsequently made statements to investigating officers which implicated Ricardo Woods, the defendant in case No. 76-137. Woods was arrested on July 19, 1974, in West Virginia at the home of his mother. After the arrival of Cincinnati police, Woods made a complete statement as to his part in the events leading up to and following the homicide.

Both defendants were charged with multiple counts of aggravated murder with specifications. Reaves was tried before a jury, and Woods before a three-judge panel. The evidence presented at the two trials was virtually identical. It established that Woods had been living with Reaves' sister for some time and had recently been laid off from his construction job. Woods and Reaves met for the first time, about two weeks before the killing, when Reaves came to Cincinnati from Chicago. Woods stated that on July 16, he and Reaves agreed that they needed money, and, using Woods' unemployment check as funds, Reaves negotiated the purchase of a .38 caliber revolver, which Reaves told the seller he planned to use to rob a loan company. Later, around midnight, Reaves, accompanied by Woods, parked his car close to the United Dairy Farmers store, and both men began to 'case' the store. According to Woods' statement, they could see the store manager inside. The plan was to wait until the manager came out and to 'hold him up and take the money.' Reaves had the .38 caliber revolver and Woods had a .22 caliber pistol which Reaves had brought from Chicago. Reaves then left Woods as a lookout across the street, and climbed onto the roof of the store.

Reaves descended from the roof and joined Woods who said that 'things looked funny.' Apparently, they had heard the sirens of a fire department unit making a run nearby. Woods and Reaves were walking away from the store and down Florence Avenue when Patrolman Cole skidded to a stop near the curb. Woods stated that he leaned in the front passenger window of the police cruiser to talk to Cole just as the officer was getting out on the opposite side of the car, and that when Cole got to the rear of the cruiser, Reaves began to fire at him, the first bullet striking Cole in the chest. Reaves fired three or four times, and Woods also shot at Cole, who at that time was lying on the street, as he and Reaves fled the scene. Cole fired four shots without hitting the fleeing men.

The pair ran to the house of a friend nearby, changed clothes, and drove away in the friend's car. Woods left the next morning for his mother's home in West Virginia.

At their separate trials, Reaves and Woods were each found guilty of aggravated murder, under a count in the indictment charging that they had purposely caused the death of Patrolman Cole while fleeing immediately after attempting to commit aggravated robbery, and guilty of the second specification, that at the time of the offense the victim was a law-enforcement officer whom they knew to be such, and who at the time was engaged in his duties. Following mitigation hearings, both defendants were sentenced to death. The Court of Appeals affirmed both judgments in separate opinions, and the causes are now before this court as a matter of right.

Simon L Leis, Jr., Pros. Atty., Fred J. Cartolano, Robert R. Hastings, Jr., and Merlyn Shiverdecker, Cincinnati, for appellee.

Jack C. Rubenstein and Harry H. McIllwain, Cincinnati, for appellant woods.

Gilday, Jung & Gilday, Bernard J. Gilday, Jr., and D. Shannon Smith, Cincinnati, for appellant Reaves.

I

STERN, Justice.

In case No. 76-155, appellant Reaves raises three propositions of law. Two of these assert that Ohio's constitutional scheme for imposition of the death penalty is unconstitutional. That issue was decided by this court in State v. Bayless (1976), 48 Ohio St.2d 73, 357 N.E.2d 1035, and need not be reconsidered here. Those propositions of law are overruled.

Appellant also claims error in the prosecution's inquiry upon voir dire into veniremen's opposition to capital punishment. Three prospective jurors were excused because of their opinions on capital punishment, and the record shows that each answered definitely that he could not join in a guilty verdict if the result was that the defendant might be sentenced to death. This court finds that no error was committed in excusing them as persons 'otherwise unsuitable for any other cause to serve as a juror.' Crim.R. 24(B)(14); State v. Bayless, supra.

II

In case No. 76-137, appellant Woods raises similar claims relating to the constitutionality of Ohio's death penalty statutes, and also contends that the evidence was insufficient to prove an attempted robbery, or, in the alternative, that the defense had proved an abandonment of the offense, and that the charge of aggravated murder against Woods should accordingly have been reduced to murder.

There is no serious dispute concerning the facts of this case. Defendants Reaves and Woods decided to rob the manager of the United Dairy Farmers store by accosting him as he came out with the day's receipts; they 'cased' the premises; Reaves climbed onto the roof, while Woods stayed behind as a lookout; Reaves then climbed back down, apparently having heard the nearby fire engine siren; and Reaves and Woods then walked away, leaving Reaves' car behind.

R.C. 2923.02(A) provides that: 'No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct which, if successful, would constitute or result in the offense.'

The committee comment for this section states, in part, that: 'In order to prove an attempt to commit an offense, it must be shown that particular conduct directed toward commission of the offense took place and that such conduct, if successful, would constitute or result in the offense. * * *' This language establishes that the essential elements of a criminal attempt are the mems rea of purpose or knowledge, and conduct directed toward the commission of an offense. The statute does not, however, indicate how far this conduct must proceed toward the actual consummation of the crime in order to be considered an attempt to commit that crime. There is also little case law in Ohio on this question, although this court has held that the conduct necessary for a criminal attempt 'need not be the last proximate act prior to the consummation of the felony.' State v. Farmer (1951), 156 Ohio St. 214, 216, 102 N.E.2d 11, 13, Fox v. State (1878), 34 Ohio St. 377. In Farmer, an assault with intent to rob was held, 156 Ohio St. at page 217, 102 N.E.2d at page 13, 'sufficient to justify the triers of the facts in determining beyond a reasonable doubt that the action of the defendant at the time for * * * (an) altercation was action taken to carry out that intent and therefore amounted to an attempt to perpetrate robbery.' In this case, Reaves committed no assault, and the question arises as to whether his acts nevertheless amounted to an attempt to rob.

American courts have generally agreed that intent to commit a crime does not of itself constitute an attempt, nor does mere preparation. The difficulty is to formulate a standard that excludes preparations prior to an actual attempt to commit a crime, while including, as punishable, those acts which are so dangerously close to resulting in a crime that intervention and arrest by the police are justified, even before the 'last proximate act.' Various tests have been suggested and followed in other jurisdictions. There is a good discussion of this problem and the various approaches in Wechsler, Jones and Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy. 61 Columbia L.rev. 571, 573-621. It is...