Summary
In State v. Jones (1981), 67 Ohio St.2d 244, 251, we stated that "[t]his court will not reverse a ruling of a trial court on the qualification or competency of an expert witness to give his opinion upon a particular subject unless there is clear showing that the trial court abused its discretion.
Summary of this case from State v. HipkinsOpinion
Nos. 80-1182, 80-1447 and 80-1646
Decided July 15, 1981.
Criminal law — Jury instructions — Burden of proof — R.C. 2901.05 — Retroactive application prohibited.
The application of R.C. 2901.05(A), as amended effective November 1, 1978, to crimes committed before the effective date of the statute is a violation of the prohibition against ex post facto laws (Section 10, Article I of the United States Constitution).
CERTIFIED by the Courts of Appeals for Hamilton, Montgomery and Belmont Counties.
Case No. 80-1182.Beginning in April of 1978, Craig Phillips allegedly made a number of threats against Sharon Jones, wife of Charles Jones, appellant. On September 2, 1978, Phillips allegedly made an attack on appellant's wife, at which time appellant pursued Phillips by automobile. When the vehicle in which Phillips was a passenger stopped at a traffic light, appellant stopped his car, emerged with a pistol in hand, and opened Phillips' door. While appellant was attempting to take Phillips from the back seat of the car, he fired four shots, killing Phillips and wounding two others. Appellant allegedly commenced firing because he saw a gun in Phillips' hand or in the hand of one of the other two passengers in the back seat.
Appellant was indicted for one count of murder, in violation of R.C. 2903.02, and two counts of felonious assault, in violation of R.C. 2903.11. His jury trial began on January 9, 1979, in the Court of Common Pleas of Hamilton County. Appellant asserted a defense of self-defense. Appellant was found guilty of the lesser-included offenses of voluntary manslaughter, in violation of R.C. 2903.03, and aggravated assault, in violation of R.C. 2903.12. Appellant was sentenced to four to twenty-five years on the manslaughter charge and one to five years for each of the assault charges. The sentences are to run concurrently. On June 25, 1980, the Court of Appeals affirmed the convictions, rejecting appellant's claim that prejudicial error had been committed by an instruction to the jury that appellant had the burden of proving his affirmative defense of self-defense by a preponderance of the evidence, pursuant to R.C. 2901.05(A), as amended effective November 1, 1978.
Case No. 80-1447.On September 18, 1978, Ilse Erath, a German national, was slain in Dayton, Ohio. She had been stabbed 19 times and had been manually strangled in her room at the Imperial House North motel. Eugene Wilkins, Jr., appellee, who was also staying at the motel, was found inside the deceased's room by motel employees who had responded to her cries for help. Appellee allegedly remembers nothing of the incident or how he came to be in the deceased's room. He alleges that prior to the incident he had taken a rest from a severe headache which had been plaguing him.
Appellee was indicted by the Montgomery County Grand Jury on September 28, 1978, for aggravated murder, in violation of R.C. 2903.01. He entered pleas of not guilty, not guilty by reason of insanity, and not guilty by reason of temporary insanity. Before trial, appellee, who had a history of mental disorder, underwent extensive examination concerning his sanity and was found competent to stand trial.
On May 29, 1979, appellee's jury trial began in the Court of Common Pleas of Montgomery County. Appellee was convicted of aggravated murder and sentenced to a term of life imprisonment. This conviction was reversed by the Court of Appeals on August 21, 1980. The basis for reversal was that the trial court had committed error prejudicial to appellee in instructing the jury that appellee had the burden to prove his affirmative defense of insanity by a preponderance of the evidence pursuant to R.C. 2901.05(A), as amended effective November 1, 1978.
Case No. 80-1646.Charles T. Coleman, appellant, was incarcerated in the Belmont County Jail on May 9, 1978. At about 10:30 P.M. that evening, Sheriff's Deputy Kenneth Clark opened appellant's cell block to lock up the prisoners and to administer medication to Coleman when he was struck over the head by appellant with a pipe made from a mop handle. Appellant was indicted for attempted escape, in violation of R.C. 2921.34, and felonious assault, in violation of R.C. 2903.11.
A plea of not guilty was entered by appellant and a trial by jury commenced on June 5, 1979, before the Court of Common Pleas of Belmont County. Appellant asserted at trial that he did not remember anything of the incident on May 9, 1978, and that he was so intoxicated that day from taking three Tuinal capsules that he was incapable of forming the requisite mental intent to commit the crimes alleged. A jury instruction was given that the burden of proving that appellant was under the influence of drugs was upon the defendant and that he must establish the defense by a preponderance of the evidence, pursuant to R.C. 2901.05(A), as amended effective November 1, 1978.
The jury returned guilty verdicts on both charges. Appellant was sentenced to two to five years on the attempted escape charge and five to fifteen years for the felonious assault charge. The sentences are to run consecutively. The Court of Appeals affirmed the convictions, rejecting appellant's claim that prejudicial error had been committed by the jury instruction that intoxication had to be proven by a preponderance of the evidence.
The Court of Appeals for Hamilton County in case No. 80-1182, finding its judgment to be in conflict with the judgment of the Court of Appeals for Montgomery County in State v. Simon (January 16, 1980), case No. CA 6262, unreported, and with the judgments of the Court of Appeals for Cuyahoga County in State v. Mocilnikar (March 6, 1980), case No. 40261, unreported, and State v. Muscatello (March 13, 1980), case No. 40484, unreported, certified the record of this case to this court for review and final determination.
The Court of Appeals for Montgomery County in case No. 80-1447, finding its judgment to be in conflict with the judgment of the Court of Appeals for Hamilton County in State v. Jones, case No. 80-1182 herein, certified the record of this case to this court for review and final determination.
The Court of Appeals for Belmont County in case No. 80-1646, finding its judgment to be in conflict with the judgment of the Court of Appeals for Montgomery County in State v. Simon (January 16, 1980), case No. CA 6262, unreported, certified the record of this case to this court for review and final determination.
Mr. Simon L. Leis, Jr., prosecuting attorney, Mr. Merlyn D. Shiverdecker and Mr. William E. Breyer, for appellee, in case No. 80-1182.
Mr. Louis Rubenstein and Mr. Ronald T. Bella, for appellant, in case No. 80-1182.
Mr. Lee C. Falke, prosecuting attorney, and Mr. Gary W. Crim, for appellant, in case No. 80-1447.
Mr. J. Robert Radabaugh, for appellee, in case No. 80-1447.
Mr. William L. Thomas, prosecuting attorney, and Mr. Paul Jefferis, for appellee, in case No. 80-1646.
Mr. Richard L. Aynes, for appellant, in case No. 80-1646.
I.
These three cases all involve the same central issue concerning the retroactive application of R.C. 2901.05(A). Specifically, the issue is whether R.C. 2901.05(A), as amended November 1, 1978, may be applied at the trial of defendants charged with crimes alleged to have been committed before the effective date of the statute.
Prior to November 1, 1978, R.C. 2901.05(A) provided that, "[e]very person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof is upon the prosecution. The burden of going forward with the evidence of an affirmative defense is upon the accused."
Effective November 1, 1978, R.C. 2901.05(A) was amended to read that, "[e]very person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused."
Article I, Section 10 of the United States Constitution prohibits any state from passing an ex post facto law. Such laws were defined by the United States Supreme Court in Calder v. Bull (1798), 3 U.S. (3 Dall.) 386, 390, as "***[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender." (Emphasis sic.)
The rule of Calder v. Bull was restated in Hopt v. Utah (1884), 110 U.S. 574, 590, in which the court stated that, "***[a]ny statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offense was committed, might, in respect of that offense, be obnoxious to the constitutional inhibition upon ex post facto laws."
The amendment to R.C. 2901.05(A) contains a change in the quantum of evidence necessary for conviction. It clearly concerns an evidentiary standard. Prior to the 1978 amendment, R.C. 2901.05(A) provided that a defendant was required to meet the burden of going forward with evidence of a nature and quality sufficient to raise an affirmative defense. State v. Robinson (1976), 47 Ohio St.2d 103. This burden requires the defendant to adduce evidence of his defense sufficient to cast a reasonable doubt on the question of his guilt. If he carries that burden, the defendant should be acquitted, regardless of whether he has proven the substance of his defense by a preponderance of the evidence. Id., fn., at page 112.
The 1978 amendment to R.C. 2901.05(A) adds the burden of persuasion to the burden of going forward. The burden of persuasion refers "to the risk which is borne by a party if the jury finds that the evidence is in equilibrium. The party with the burden of persuasion will lose if he fails to persuade the trier of fact that the alleged fact is true by such quantum of evidence as the law demands." State v. Robinson, supra, at page 107. This additional burden increases substantively the amount of evidence the defendant must adduce in support of his affirmative defense. Since "[t]he state need not disprove an affirmative defense unless the defendant comes forward with evidence sufficient to raise that defense" ( id., at pages 108-109), the state's burden is correspondingly lessened as the defendant's is increased. Accordingly, we find that retroactive application of amended R.C. 2901.05(A) to a crime committed before the effective date of the statute acts to decrease the quantum of proof required for criminal conviction. As such, this application of the statute is in violation of Section 10, Article I of the United States Constitution.
An additional basis for disapproving the retroactive application of R.C. 2901.05(A) is found in Section 28, Article II of the Ohio Constitution which provides:
"The General Assembly shall have no power to pass retroactive laws***." R.C. 1.58, enacted pursuant to the constitutional proscription against retroactive laws, also provides:
"(A) The reenactment, amendment, or repeal of a statute does not, except as provided in division (B) of this section:
"(1) Affect the prior operation of the statute or any prior action taken thereunder;
"(2) Affect any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred thereunder;
"(3) Affect any violation thereof or penalty, forfeiture, or punishment incurred in respect thereto, prior to the amendment or repeal;
"(4) Affect any investigation, proceeding, or remedy in respect of any such privilege, obligation, liability, penalty, forfeiture, or punishment; and the investigation, proceeding, or remedy may be instituted, continued, or enforced, and the penalty, forfeiture, or punishment imposed, as if the statute had not been repealed or amended."
Once an action is pending, as these actions all were prior to November 1, 1978, "associated remedial rights extended by statute could not be eliminated by later amendment or repeal, unless a contrary legislative intent was expressly stated." Tague v. Bd. of Trustees (1980), 61 Ohio St.2d 136, 138. There was no such legislative intent apparent in the amendment to R.C. 2901.05(A).
II.
In case No. 80-1182, appellant shot Craig Phillips on September 2, 1978. At his trial, which began on January 9, 1979, he offered a defense of self-defense. The trial court gave the following instruction on the issue of appellant's affirmative defense: "The burden of proving self-defense is upon the defendant and he must prove it by a preponderance or greater weight of the evidence." This instruction was clearly based upon amended R.C. 2901.05(A) which was not in effect at the time of the commission of the crime. As such, the giving of the instruction was error and prejudicial to the appellant.
This court has held that the defenses of insanity, intoxication and self-defense are affirmative defenses. State v. Robinson (1976), 47 Ohio St.2d 103, 108.
Appellant also contends as a proposition of law that R.C. 2901.05(A) violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. This issue was not raised at trial and, therefore, is not properly before this court. State, ex rel. King, v. Shannon (1960), 170 Ohio St. 393, 394. Moreover, given our disposition of appellant's cause, the constitutionality of amended R.C. 2901.05(A) is moot as regards this appellant.
III.
In case No. 80-1447, appellee stabbed and strangled Ilse Erath on September 18, 1978. His affirmative defense was insanity. The trial court gave the following instruction on appellee's affirmative defense to the jury at the trial which had begun on May 29, 1979: "In order to establish the defense of insanity, the accused must establish by a preponderance of the evidence that a disease or other defect of his mind has so impaired his reason that at the time of the criminal act with which he is charged either he did not know that such act was wrong or he did not have the ability to refrain from doing that act." This instruction also clearly applied the added burden of the November 1, 1978, amendment to R.C. 2901.05(A) to a crime committed before the effective date of the statute. As such, this was error prejudicial to the appellee.
IV.
In case No. 80-1646, appellant struck Kenneth Clark with a pipe on May 9, 1978. He asserted an affirmative defense of intoxication. His trial began on June 5, 1979, and concluded with this instruction from the trial court to the jury: "The burden of proving the defendant of being under the influence of drugs is upon the defendant and he must establish such defense by a preponderance of the evidence." This instruction, like those in the other two cases herein, was also based upon amended R.C. 2901.05(A), and applied to a crime committed before the effective date of the statute. This constitutes error prejudicial to appellant.
Appellant raises two additional issues. First, appellant asserts that the Court of Appeals did not weigh the evidence as to whether the appellant's actions caused serious physical harm. In view of the foregoing disposition of this case, this issue need not be addressed.
Second, appellant asserts that the refusal of the trial court to allow a drug counselor to testify about the effects of taking the drug Tuinal violated appellant's right to present a defense under the Sixth and Fourteenth Amendments to the United States Constitution.
Wayne Dickerson was offered as an expert witness by appellant. Dickerson stated his qualifications as follows: "I hold my undergraduate work, my bachelor's degree and my major in geochemistry and also social psychology. I hold a Master's degree in endorsement, testing and guidance.***My specific job duties involve making myself available to various segments of the community in terms of explaining not only the addictive process for both drugs and alcohol but, also to do initial things with people referred to us by the courts and also working on an individual basis with clients sent to us by their own referral and by the court's referral, also."
Appellant's counsel posed the following hypothetical question to Dickerson: "First, if you know, and if in your opinion as a drug and alcohol counselor, what effect one 25 milligram thorazine with two 5 grain tuinals have on a male approximately 160 to 180 pounds and approximately 6 feet tall?" The state's objection to the question was sustained by the trial court on the basis that Dickerson was not qualified to answer.
This court will not reverse a ruling of a trial court on the qualification or competency of an expert witness to give his opinion upon a particular subject unless there is a clear showing that the trial court abused its discretion. Ohio Turnpike Comm. v. Ellis (1955), 164 Ohio St. 377, paragraph eight of the syllabus.
The question asked of Dickerson required a knowledge of pharmacology. There is no evidence in the record that Dickerson was so qualified. There was no abuse of discretion, therefore, by the trial court in not permitting him to answer the question posed to him.
The Sixth and Fourteenth Amendments to the United States Constitution do not compel a trial court to accept a witness as expert who is not qualified to give expert testimony.
For the foregoing reasons, the judgments of the Courts of Appeals in cases Nos. 80-1182 and 80-1646 are reversed, and the causes are remanded for new trials; and in case No. 80-1447, the judgment of the Court of Appeals is affirmed.
Judgments reversed and causes remanded in cases Nos. 80-1182 and 80-1646.
Judgment affirmed in case No. 80-1447.
CELEBREZZE, C.J., P. BROWN, SWEENEY, VICTOR and C. BROWN, JJ., concur in cases Nos. 80-1182 and 80-1447.
CELEBREZZE, C.J., P. BROWN, SWEENEY and C. BROWN, JJ., concur in case No. 80-1646.
LOCHER, J., concurs in the judgment in cases Nos. 80-1182, 80-1447 and 80-1646.
HOLMES, J., dissents in case No. 80-1646.
VICTOR, J., of the Ninth Appellate District, sitting for HOLMES, J., in cases Nos. 80-1182 and 80-1447.