State v. Kidder

513 N.E.2d 311, 32 Ohio St. 3d 279, 1987 Ohio LEXIS 383

• Court: Ohio Supreme Court
• Decided: September 2, 1987
• Docket: No. 86-1808
• Status: Published

Opinions

Holmes, J.

I

The main issue presented in this appeal is whether our per curiam decision in State v. Rohdes (1986), 23 Ohio St. 3d 225, 23 OBR 382, 492 N.E. 2d 430, in any way altered the statutory-elements test for determining lesser included offenses first announced in State v. Kuchmak (1953), 159 Ohio St. 363, 50 O.O. 327, 112 N.E. 2d 371. Although Rohdes did tend to cloüd the picture of this area of the law, we answer such query in the negative, for reasons which follow.

R.C. 2945.74 provides, in pertinent part:

“* * * When the indictment or information charges an offense, including different degrees, or if other offenses are included within the offense charged, the jury may find the defendant not guilty of the degree charged but guilty of an inferior degree thereof or lesser included offense. * * *” See, also, Crim. R. 31(C).

A criminal defendant is entitled to a lesser-included-offense instruction, however, only where the evidence warrants it. Beck v. Alabama (1980), 447 U.S. 625, 636, fn. 12; Keeble v. United States (1973), 412 U.S. 205; State v. Kilby (1977), 50 Ohio St. 2d 21, 4 O.O. 3d 80, 361 N.E. 2d 1336; State v. Nolton (1969), 19 Ohio St. 2d 133, 48 O.O. 2d 119, 249 N.E. 2d 797. Thus, the trial court’s task is twofold: first, it must determine what constitutes a lesser included offense of the charged crime; second, it must examine the facts and ascertain whether the jury could reasonably conclude that the evidence supports a conviction for the lesser offense and not the greater.

The state argues that, prior to Rohdes, in Ohio the question of whether the lesser offense exists had always been a matter of strict statutory definition, focusing on the elements of the offenses. In support, it cites a long line of cases from this court, since at least State v. Kuchmak, supra. Appellee Kidder argues that by our decision in State v. Rohdes, supra, we held that whether a lesser offense exists is a matter of fact, focusing on the evidence presented at trial. We hereby clarify or modify such a broad holding in Rohdes, and restate the court’s position of favoring the strict statutory-elements test for its clarity and evenhandedness in application.

The two-step, lesser-included-offense statutory-elements test was stated in State v. Kuchmak, supra, at 366-367, 50 O.O. at 328-329, 112 N.E. 2d at 373, as follows:

“* * * [I]f all the elements of a separate offense are present with others in an offense charged in an indictment, such separate offense is a lesser included offense; or, where all the elements of an offense are included among the elements of a charged offense, the former is a lesser included offense. But to warrant a conviction of such lesser included offense, another limitation must be taken into consideration. A court may not charge upon, and a defendant may not be found guilty of, a lesser offense, unless the evidence tends to support each of the necessary elements of such offense.”

This test, including the statutory-elements step, has since been enhanced and redefined, but has never been overruled. In State v. Hreno (1954), 162 Ohio St. 193, 55 O.O. 97, 122 N.E. 2d 681, paragraph two of the syllabus, we made it clear that all the elements of the lesser offense must be present in the greater offense, with others, such that it would be impossible to commit the greater offense without also having committed the lesser. In other words, the lesser offense must be necessarily included in the greater. See Heller v. State (1873), 23 Ohio St. 582; 3 Wright, Federal Practice & Procedure: Criminal 2d (1982) 21, Section 515 (construing Fed. R. Crim. P. 31[c]).

The second step of this test, giving a lesser-included-offense charge only when supported by the evidence, was underscored in State v. Loudermill (1965), 2 Ohio St. 2d 79, 31 O.O. 2d 60, 206 N.E. 2d 198. The failure to give an instruction in such , circumstance amounts to prejudicial, reversible error. Id. at syllabus; see Bandy v. State (1921), 102 Ohio St. 384, 131 N.E. 499. If an instruction is not given when warranted by the evidence, a jury may convict the defendant of the greater charged offense, even though not convinced of guilt beyond a reasonable doubt, simply because the evidence shows he was obviously guilty of some offense. Keeble v. United States, supra. In State v. Nolton, supra, we modified this step of the test to make it clear that it operated for the benefit of both the state and the accused. Id. at 135, 48 O.O. 2d at 120, 249 N.E. 2d at 799.

This entire two-step process was succinctly restated and clarified in State v. Wilkins (1980), 64 Ohio St. 2d 382, 18 O.O. 3d 528, 415 N.E. 2d 303, and again in State v. Davis (1983), 6 Ohio St. 3d 91, 6 OBR 131, 451 N.E. 2d 772. In Wilkins, supra, at 384, 18 O.O. 3d at 530, 415 N.E. 2d at 306, the statutory-elements step was clarified by dividing the analysis into three parts:

“An offense may be a lesser included offense of another only if (i) the offense is a crime of lesser degree than the other, (ii) the offense of the greater degree cannot be committed without the offense of the lesser degree also being committed and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.”

Wilkins also modified the second step of the test by removing some of the confusion apparently caused by the holding in Nolton. As we explained in the second paragraph of the syllabus in State v. Davis, supra, when examining the evidence presented, it is only where the trier of fact could reasonably find against the state and for the accused on one or more of the elements of the crime charged, and for the state and against the accused on the “remaining elements, which by themselves" (emphasis added) form the lesser included offense, that an instruction on that lesser included offense is warranted.

See, also, State v. Solomon (1981), 66 Ohio St. 2d 214, 20 O.O. 3d 213, 421 N.E. 2d 139.

In State v. Rohdes, supra, this court was faced with an indictment for murder and a request by the defendant for a lesser-included-offense instruction on involuntary manslaughter. The underlying misdemeanor involved in the manslaughter instruction was aggravated menacing. R.C. 2903.04(B), R.C. 2903.21. In our per curiam opinion, we began with the three-prong statutory-elements step announced in Wilkins, and noted that only the second prong was at issue, “since involuntary manslaughter by aggravated menacing is obviously of lesser degree than murder and the mental element of intent required for murder is not required to prove the commission of involuntary manslaughter.” Id. at 226, 23 OBR at 383, 492 N.E. 2d at 432.

Unfortunately, although the result was correct, the analysis which followed was confusing, if not flawed. The underlying facts, i.e., those related to the aggravated menacing charge, were prematurely considered in determining whether the murder could have been committed without also committing involuntary manslaughter. This was contrary to our longstanding rule that the evidence presented in a particular case is irrelevant to the determination of whether an offense, as statutorily defined, is necessarily included in a greater offense. The facts become relevant only in the determination of whether a jury could reasonably convict the defendant of the lesser included offense as defined.

Despite this misfocused analysis, the Rohdes court noted that involuntary manslaughter is a lesser included offense of murder. Id. at 227, 23 OBR at 384, 492 N.E. 2d at 433, citing State v. Johnson (1983), 6 Ohio St. 3d 420, 6 OBR 466, 453 N.E. 2d 595, reversed and remanded on other grounds (1984), 467 U.S. 493, 497, fn. 6. Involuntary manslaughter is always and necessarily a lesser included offense of murder because murder cannot ever be committed without also committing or attempting to commit a felony or a misdemeanor. See State v. Jenkins (1984), 15 Ohio St. 3d 164, 218, 15 OBR 311, 357, 473 N.E. 2d 274, 310; R.C. 2903.02, R.C. 2903.04. The statutory-elements step having been met, the evidence in Rohdes concerning the underlying misdemeanor became relevant in determining whether the jury should have been charged on the lesser offense. Id. at 227, 23 OBR at 384, 492 N.E. 2d at 433.

Again, to clarify, the entire lesser-included-offense analysis, for purposes of R.C. 2945.74, is as follows: an offense may be a lesser included offense of another only if (i) the offense is a crime of lesser degree than the other, (ii) the offense of the greater degree cannot, as statutorily defined, ever be committed without the offense of the lesser degree also being committed, and (iii) some element of the greater offense is not required to prove the commission of the lesser offense. Even though so defined, a charge on the lesser included offense is not required, unless the trier of fact could reasonably reject an affirmative defense and could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for the state and against the accused on the remaining elements, which by themselves would sustain a conviction upon a lesser included offense.

This approach is truest to the scheme of the General Assembly, which has strictly defined criminal violations in terms of descending degrees of culpability, R.C. 2901.22, and descending degrees of proscribed conduct. See R.C. 2901.02. It offers the most clarity to both practitioners and judges, treating defendants and prosecutors evenhandedly, and discourages the parties from manipulating the proof to accommodate all factually possible lesser offenses. See Ettinger, In Search of a Reasoned Approach to the Lesser Included Offense (1984), 50 Brooklyn L. Rev. 191, 201. It also best facilitates the requirement that an accused have notice of the offenses charged against him. Sixth Amendment to the United States Constitution; Section 10, Article I of the Ohio Constitution; R.C. 2941.05; Crim. R. 7; State v. Schaeffer (1917), 96 Ohio St. 215, 117 N.E. 220; Blair, Constitutional Limitations on the Lesser Included Offense Doctrine (1984), 21 Am. Crim. L. Rev. 445, 451-455. Any language in Rohdes which is contrary to this two-step analysis is hereby disapproved.

In the case sub judice, appellee Kidder requested a charge of aggravated menacing as a lesser included offense of attempted murder. The elements of attempted murder, as defined by R.C. 2923.02 and 2903.02, are (1) purposely, (2) engaging in conduct which, if successful, would (3) cause another’s death. The elements of aggravated menacing, R.C. 2903.21, are (1) knowingly, (2) cause another to believe, (3) that the offender will cause serious physical harm to the person or property of such other person or member of his immediate family. Aggravated menacing, a first-degree misdemeanor, is a crime of lesser degree than attempted murder, a first-degree felony. However, murder can be committed without the victim’s being aware of impending serious physical harm. Thus, the second prong of the statutory-elements test is not met, and no set of facts adduced at trial would have warranted a charge to the jury on the lesser, but not included, offense of aggravated menacing. The trial court properly refused to give such an instruction.

II

In his cross-appeal, Kidder cites as error two events which occurred at his trial. First, he argues that certain portions of an audio-taped custodial conversation between him and two deputy sheriffs should have been excised prior to going before the jury. He complains of three types of statements: (1) factual conclusions and allegations by the deputy sheriffs about Kidder’s veracity,¹ (2) the deputies’ hearsay statements regarding the victim’s emotional state during the confrontation,² and (3) statements of Kidder relating to dropping the charges against him and efforts to “plea bargain.”³ We find that the jury was indeed permitted to consider inadmissible hearsay statements made by the interrogating officers, but find, as did the court of appeals, that such statements were not prejudicial to Kidder.

The state contends that the hearsay and opinion statements of the deputies constituted adoptive admissions by Kidder, pursuant to Evid. R. 801(D)(2). We cannot agree. That rule provides that a statement is not hearsay, and thus admissible, if it “is offered against a party and is * * * a statement of which he has manifested his adoption or belief in its truth.” Evid. R. 801(D)(2)(b). Given the context and circumstances surrounding the deputies’ statements, it is not apparent that Kidder would have been able to deny the statements, particularly those relating to the victim Grant’s state of mind. Thus, he cannot be said to have manifested his adoption of such statements, and it was error to present them to the jury as adoptive admissions. In deciding whether admission of these hearsay statements was unduly prejudicial to Kidder, “[o]ur judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the * * * [statements] on the minds of an average jury.” Harrington v. California (1969), 395 U.S. 250, 254. In the final analysis, the evidence in favor of conviction, absent the hearsay, must be so overwhelming that the admission of those statements was harmless beyond a reasonable doubt. Id,.; United States v. Hasting (1983), 461 U.S. 499; State v. Williams (1983), 6 Ohio St. 3d 281, 290, 6 OBR 345, 353, 452 N.E. 2d 1323, 1333. We find the error here was not so prejudicial as to require reversal.

Richard Grant testified that Kidder, prior to firing the first round at him, stated, “I’m sorry, Rick, I have to kill you,” and that during the struggle, Kidder continued, “I am sick and tired of all you and your rich friends.” “I am going to get them too.” “I have been a prisoner in this house for six months and now you are my prisoner.” “Before the night is over with we are both going to die.” Grant further testified that after the gun was put down by Kidder, Kidder picked up a butcher knife from the kitchen and threatened Grant with that. Grant’s neighbor testified that when he let Grant in, Grant was very excited and his whole body was shaking as “he said his roommate was trying to kill him.” Both Mueller and Maxwell testified that Kidder entered their home, told them “he blew Richard’s face off” and ordered them at gunpoint to accompany him south of Hillsboro. They testified the gun was always trained in their direction and Mueller testified that, even after they split up in separate cars, he feared for Maxwell who was being held at gunpoint in the rear automobile. Arresting officers found the shotgun in the vehicle Kidder was driving, and shotgun shells and credit cards belonging to Grant on Kidder’s person. This physical evidence, along with the knife recovered from Grant’s kitchen and photographs of the holes blown in Grant’s apartment, were presented to the jury. The defense called no witnesses.

Admissible portions of the taped interrogation demonstrate Kidder’s initial reluctance to talk and then, after probing and prodding by the investigating officers, his own version of the events indicating his intention to merely frighten Grant and a general denial of the kidnapping of Maxwell and Mueller. This was the jury’s only exposure to these defenses. At the same time, the jury was fully aware of the context in which the inadmissible hearsay and opinion statements of the police were made: the officers were engaged in an interrogation of a criminal suspect. In this context, the impact on the average jury would have been much less than the same statements made by a police officer on the witness stand at trial. Thus, in light of the overwhelming evidence presented on all the charged crimes, the error in not excising certain portions of the transcript was not so prejudicial as to require reversal.

Next, we agree with the state that the statements made by Kidder relative to dropping the charges against him did not amount to plea negotiations, which would be rendered inadmissible by Evid. R. 410.⁴ His statements do not contain an offer to plead guilty to any charge, nor do they indicate a serious effort at negotiating such a plea. Evid. R. 410 was not intended to be used to hamper police at such an early investigatory stage. 2 Weinstein & Berger, Weinstein’s Evidence (1979) 410-417, Paragraph 410(a).

Finally, cross-appellant Kidder alleges that prejudicial error occurred on the second day of trial when a juror observed him bound in shackles in the hallway outside the courtroom. Defense counsel immediately requested that the court, which had earlier ruled the defendant should appear in court unshackled, conduct a voir dire of the juror to determine whether she was prejudiced by what she had seen. The trial court refused, feeling it improper to focus any undue attention on the matter which might compound the problem. Instead, the court gave the following instruction to the entire jury panel upon their return to the courtroom:

“* * * I want to reiterate the instructions that I have given to you before. That anything that you saw or heard outside of this Courtroom related to this case should be deleted from your mind. You determine this case on what you see and hear in this Courtroom and nothing else.”

Although we recognize that no one should be tried while shackled, absent unusual circumstances, Illinois v. Allen (1970), 397 U.S. 337, 51 O.O. 2d 163, we agree with the view taken by several federal circuit courts that the danger of prejudice to defendants is slight where a juror’s view of defendants in custody is brief, inadvertent and outside of the courtroom. United States v. Robinson (C.A. 8, 1981), 645 F. 2d 616, 617, certiorari denied (1981), 454 U.S. 875; United States v. Taylor (C.A. 2, 1977), 562 F. 2d 1345, 1359, certiorari denied sub nom. Salley v. United States (1977), 432 U.S. 909; United States v. Crane (C.A. 6, 1974), 499 F. 2d 1385, 1389, certiorari denied (1974), 419 U.S. 1002. Any error which may have resulted from the failure to conduct a voir dire of the lone juror was harmless, State v. Williams, supra, given the brief, single observation and the general corrective instruction given thereafter.

Ill

In summary, we reverse the court of appeals’ finding that a lesser-included-offense instruction on aggravated menacing was warranted by the facts herein. Aggravated menacing is not a lesser included offense of attempted murder, as it is not necessarily included within the greater crime. Further, we find that the admission of the hearsay and opinion statements made by interrogating deputy sheriffs to Kidder was harmless error, and affirm the court of appeals relative to the cross-appeal. The judgment of the trial court is accordingly reinstated.

Judgment accordingly.

Moyer, C.J., Locher, Douglas and Wright, JJ., concur. H. Brown, J., concurs in part and dissents in part. Sweeney, J., dissents.

1 For example, Lieutenant Smith’s comments included:

“See, his [Grant’s] story coincides with all the evidence we’ve gathered. Yours doesn’t. That kind of makes it that you’re not telling the whole truth here. * * * Now his story supports that evidence. Yours doesn’t.”

2 Such statements, again by Lieutenant Smith, were:

“He fully believes in his mind that you were trying to kill him. * * * If he didn’t think you tried to kill him, he wouldn’t have called us. * * * We know that he ran out of the house and left to call the police because he was terrified that you were going to kill him.”

3 Kidder’s statements included: “I mean, okay, I mean like if I was straight up about everything, I mean, would you guys consider trying to get some of that shit dropped against me?” “* * * I mean, what do you think my chances is of getting this attempted murder thing dropped off?” To which Captain Cluxton replied:

“Nobody mentioned anything about getting it dropped off. Something like that isn’t up to us, Bob. If there’s going to be a reduction in the charges, that has to be something that’s agreed upon with the prosecutor, defense attorney, and the court. We don’t have any authority or say as far as being able to do that. If we did, we’d sit here and deal with people all day and night and get all kinds of crimes solved.”

4 Evid. R. 410 provides, in pertinent part:

“Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of no contest, or the equivalent plea from another jurisdiction, or a plea of guilty in a violations bureau, or of an offer to plead guilty or no contest to the crime charged or any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. * * *”