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State v. Smith12/9/2004
Defendant failed to object to either the prosecution's argument or the trial court's instruction and, therefore, to prevail on appeal must demonstrate plain error.
{ } In its initial portion of closing argument, the prosecution commented that: " efendant is not in a position to claim self-defense under this circumstance if he's seeking trouble and he's armed and he's provoking a fight or he's renewing a fight that had broken off and did not attempt to avoid it or to leave the scene of the trouble. He went directly to the scene of the trouble. He could have stayed in that back bedroom. I know it's a little degrading. But you know what? Just stay in the bedroom till the drunk calms down for heaven's sake, you know, be a grownup." (Tr. Vol. II, 292.) The prosecution continued: "There is nothing to indicate that if he had stayed in the bedroom with the gun that * * * the matter wouldn't have resolved. You know, he put the candlestick down. * * * Joshua thinks it's over, it's a dead issue. So just swallow your pride a little bit, stay in the bedroom." Id. at 292-293.
{ } In its rebuttal portion of closing argument, the prosecution again emphasized that "[defendant] could have stayed in the bedroom. Degrading, I admit, certainly not an ideal way to spend an evening, but he could have been in the bedroom." Id. at 318.
{ } The trial court's charge on the duty to retreat element of self-defense instructed the jury, in pertinent part, that:
* * * here a person in the lawful pursuit of his business on his own premises, and without blame, is violently assaulted by another who manifestly and maliciously intends and endeavors to kill him, the person so assaulted, without retreating, although it be in his power to do so without increasing his danger, may kill his assailant if necessary to save his own life or prevent enormous bodily harm.
(Tr. Vol. II, 336-337.)
{ } In State v. Peacock (1883), 40 Ohio St. 333, the Ohio Supreme Court held that " here one is assaulted in his home * * * he may use such means as are necessary to repel the assailant from the house * * * even to the taking of life. But a homicide in such a case would not be justifiable unless the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe that the killing is necessary to repel the assailant." (Emphasis sic.) Id. at paragraph two of the syllabus.
{ } In State v. Cuttiford (1994), 93 Ohio App.3d 546, the defendant and the victim lived in separate apartments in the same duplex. After the victim and the defendant engaged in an intense verbal confrontation on a common stairway, the defendant ran into the kitchen entrance of his apartment, closed the door behind him, and retrieved two guns he kept in the bedroom. He returned to the kitchen door armed with both guns, opened the door, and pointed one of the guns at the victim, who by this time had come to the landing outside the kitchen door. The victim told defendant he was going to kill him. The defendant, standing about a foot inside his apartment, shot the victim as the victim "crouched and lunged at him." Id. at 551. The defendant argued that the trial court's general instructions on self-defense were incomplete because the court refused to instruct the jury that when a person is within his own home he has no duty to retreat.
{ } The court of appeals determined that the trial court erroneously failed to instruct the jury that "defendant, once he was inside his own apartment, was privileged to use such means as were necessary to prevent [the victim] from entering the apartment and was not required to retreat to avoid further confrontation with him."
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