State v. Rhodes

590 N.E.2d 261, 63 Ohio St. 3d 613, 1992 Ohio LEXIS 864

Opinions

Wright, J.

This case requires us to decide whether a defendant on trial for murder bears the burden of establishing by a preponderance of the evidence that he was “under the influence of sudden passion or in a sudden fit of rage, either of which was brought on by serious provocation occasioned by the victim that * * * [was] reasonably sufficient to incite the * * * [defendant] into using deadly force * * * ” — the mitigating circumstances of R.C. 2903.-03(A) — , in order for a jury to find the defendant guilty of voluntary manslaughter rather than murder. In order to understand the import of the issue before us, a review of the law of voluntary manslaughter is necessary. The text of the relevant portion of the voluntary manslaughter statute, R.C. 2903.03(A), reads as follows:

“No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another.”

R.C. 2903.03 defines voluntary manslaughter as a single offense that, under certain circumstances, permits a defendant to mitigate a charge of murder to manslaughter. The crime comprises elements that must be proven by the prosecution and mitigating circumstances that must be established by the defendant.² Under the statute, the jury must find a defendant guilty of voluntary manslaughter rather than murder if the prosecution has proven, beyond a reasonable doubt, that the defendant knowingly caused the victim’s death, and if the defendant has established by a preponderance of the evidence the existence of one or both of the mitigating circumstances.

Voluntary manslaughter is, by our prior definition, an inferior degree of murder. State v. Tyler (1990), 50 Ohio St.3d 24, 36, 553 N.E.2d 576, 592. Accord State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, paragraph two of the syllabus. Thus, if a defendant on trial for murder or aggravated murder (or the prosecution in such trial) produces evidence of one or both of the mitigating circumstances set forth in R.C. 2903.03, that evidence will be sufficient to entitle a defendant to an instruction on voluntary manslaughter as an inferior degree of murder if under any reasonable view of the evidence, and when all of the evidence is construed in a light most favorable to the defendant, a reasonable jury could find that the defendant had established by a preponderance of the evidence the existence of one or both of the mitigating circumstances. State v. Wilkins (1980), 64 Ohio St.2d 382, 388, 18 O.O.3d 528, 532, 415 N.E.2d 303, 308.

If a defendant is not charged with murder or aggravated murder, but rather is on trial for voluntary manslaughter, neither party is required to establish either of the mitigating circumstances. Rather, the court presumes (to the benefit of the defendant) the existence of one or both of the mitigating circumstances as a result of the prosecutor’s decision to try the defendant on the charge of voluntary manslaughter rather than murder. In that situation, the prosecution needs to prove, beyond a reasonable doubt, only that the defendant knowingly caused the death of another, and it is not a defense to voluntary manslaughter that neither party is able to demonstrate the existence of a mitigating circumstance. State v. Calhoun (1983), 10 Ohio App.3d 23, 10 OBR 30, 460 N.E.2d 294, motion for leave to appeal overruled (1983).

We now turn our attention to the central issue in this matter: whether the trial court’s instruction to the jury on the burden of establishing either of the mitigating circumstances of R.C. 2903.03 was proper. Because the instruction at issue was not objected to at trial, and because the record does not reflect that the court rejected a defense-proposed alternative to the instruction given, we review the instruction for plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332.

In its instructions to the jury, the court placed upon the defendant the burden of establishing by a preponderance of the evidence either of the mitigating circumstances of R.C. 2903.03(A). In State v. Muscatello (1978), 55 Ohio St.2d 201, 9 O.O.3d 148, 378 N.E.2d 738, we analyzed the predecessor manslaughter statute and determined that the “mitigating circumstance” of “extreme emotional stress” was not an element of the crime of voluntary manslaughter. Id. at paragraph one of the syllabus. We also determined that the defendant was not required to establish the mitigating circumstance of extreme emotional stress by either a preponderance of the evidence or beyond a reasonable doubt “in order for the jury to consider the * * * [inferior degree] offense of voluntary manslaughter.” Id. at paragraph three of the syllabus. At the time the defendant in Muscatello originally went to trial, former R.C. 2901.05(A) placed only the burden of production, and not the burden of persuasion, upon the defendant asserting an affirmative defense. State v. Robinson (1976), 47 Ohio St.2d 103, 1 O.O.3d 61, 351 N.E.2d 88; former R.C. 2901.05(A) (134 Ohio Laws, Part II, 1866, 1893).

Muscatello is as instructive for what it does not say as it is for what it does. Although some would suggest that Muscatello stands for the proposition that the mitigating circumstance “extreme emotional stress” is not an element of an affirmative defense, and thus its equivalent under the current statute, “sudden passion or sudden fit of rage,” also does not need to be proven as an element of an affirmative defense, we find no such language in the court’s opinion. Indeed, an examination of the court of appeals’ decision affirmed in Muscatello substantially contradicts that suggestion: “Emotional stress as a mitigating circumstance is similar to an affirmative defense since it operates as a defense to the higher offenses of aggravated murder and murder. As such, the law in Ohio applicable to affirmative defenses is also clearly applicable to the mitigating factor of emotional stress.” State v. Muscatello (1977), 57 Ohio App.2d 231, 248, 11 O.O.3d 320, 330, 387 N.E.2d 627, 640. Clearly, the court of appeals directly, and this court by implication, in the respective Muscatello opinions, viewed the law relating to affirmative defenses as applicable to the mitigation of a charge of murder to voluntary manslaughter, and, for that reason, both courts chose not to place the burden of persuasion upon the defendant who sets forth a mitigating circumstance.³

In 1978, the General Assembly amended former R.C. 2901.05(A) and changed the burden imposed upon a defendant asserting an affirmative defense (137 Ohio Laws, Part II, 3895, 3896). Currently, a defendant bears the burden of production, as before, as well as the burden by a preponderance of the evidence to prove an affirmative defense. R.C. 2901.05(A). In view of that statutory change, our decision now whether the implicit rationale underlying Muscatello should stand will determine whether a court may require a defendant to prove either of the mitigating circumstances by a preponderance of the evidence.

We see no reason to alter the course set forth in Muscatello, and we thus continue to view the law regarding affirmative defenses to be applicable to the proof of mitigation to reduce a charge of murder to manslaughter. As before, the defendant bears the burden of producing evidence of a mitigating circumstance “in order for a jury to consider * * * [as an inferior degree of murder,] voluntary manslaughter.” Muscatello, 55 Ohio St.2d at 203, 9 O.O.3d at 150, 378 N.E.2d at 740.⁴ The jury now, however, must weigh the evidence in mitigation in light of defendant’s burden to establish the existence of either of the mitigating circumstances by a preponderance of the evidence. To that extent, we apply the current statute concerning affirmative defenses to our prior decision in Muscatello and modify it accordingly.

The result here is consistent with the practice approved by the United States Supreme Court in Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281. In Patterson, the court upheld a New York law that placed the burden of persuasion upon the defendant to prove by a preponderance of the evidence that he acted under the influence of extreme emotional stress to reduce the crime of second-degree murder to manslaughter. Because placing the burden to prove mitigation upon the defendant does not require him to disprove an element of the offense of murder, we similarly find the practice to be acceptable under both the Ohio and United States Constitutions.

Thus, we hold that a defendant on trial for murder or aggravated murder bears the burden of persuading the fact finder, by a preponderance of the evidence, that he or she acted under the influence of sudden passion or in a sudden fit of rage, either of which was brought on by serious provocation occasioned by the victim that was reasonably sufficient to incite the defendant into using deadly force, R.C. 2903.03(A), in order for the defendant to be convicted of voluntary manslaughter rather than murder or aggravated murder. The court shall instruct the jury on the offense of voluntary manslaughter if the defendant meets his burden of production with respect to evidence of one or both of the mitigating circumstances of R.C. 2903.03(A).⁵

In this case, the trial court properly placed the burden of proof upon the defendant to prove the mitigating circumstances of R.C. 2903.03(A) by a preponderance of the evidence. The judgment of the court of appeals is reversed.

Judgment reversed.

Sweeney and Holmes, JJ., concur. Resnick, J., concurs in the syllabus and judgment. Moyer, C.J., Douglas and H. Brown, JJ., dissent.

2 . The mitigating circumstances are (1) sudden passion in response to serious provocation by the victim sufficient to incite the defendant to use deadly force, and (2) a sudden fit of rage in response to serious provocation by the victim sufficient to incite the defendant to use deadly force. In State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, we designated these circumstances as “mitigating elements.” Henceforth, to avoid confusion as to what constitutes the elements of the offenses of voluntary manslaughter and aggravated assault, we will use the term “mitigating circumstances” to refer to those factors that a defendant bears the burden of proving by a preponderance of the evidence in order to mitigate his or her culpability from an indicted greater offense to an offense of an inferior degree.

3 . Additionally, a careful reading of Muscatello reveals that the court was not concerned as much with how the jury should weigh the evidence of the mitigating circumstance of extreme emotional stress as it was with the quantum of evidence of the mitigating circumstance necessary for the defendant to be entitled to have the jury consider the offense of voluntary manslaughter as an inferior degree of murder. See Muscatello, supra, at paragraph three of the syllabus.

4 . This is not to say that the defendant cannot rely upon evidence adduced by the prosecution to discharge his burden.

5 . We do not address herein the issue of what quantity and quality of evidence must be produced in order for a murder defendant to obtain an instruction on voluntary manslaughter.