COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60898 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : LEZESKER HALL : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-251599 JUDGMENT: REVERSED AND REMANDED FOR RESENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: FEDELE DeSANTIS Assistant County Prosecutor The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: HYMAN FRIEDMAN, Cuyahoga County Public Defender BY: BETTY T. HARVEY Assistant Public Defender The Marion Building, Rm. 307 1276 West Third Street Cleveland, Ohio 44113-1569 -2- SPELLACY, J.: On March 26, 1990, at approximately 4:00 P.M., defendant- appellant Lezesker Hall ("appellant"), who had worked at Euclid Villa Senior Apartments as a temporary laborer for approximately two months, assaulted his co-worker, Homer Varner, a maintenance worker, with a hammer. Varner sustained four lacerations and a depressed fracture to the back of the head, ten contusions on his back, and a broken rib. After a jury trial, appellant was convicted of attempted murder, in violation of R.C. 2903.02 and R.C. 2923.02, with three violence specifications and an aggravated felony specification. Appellant appeals and raises the following assignments of error: I. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO IMPEACH ITS OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT ABSENT A SHOWING OF AFFIRMATIVE DAMAGE, PURSUANT TO EVID. R. 607. II. THE TRIAL COURT ERRED WHEN IT DID NOT INSTRUCT THE JURY ON THE OFFENSE OF AGGRAVATED ASSAULT IN LIGHT OF EVIDENCE PRESENTED AT TRIAL OF SERIOUS PROVOCATION, WHICH MITIGATES AND REDUCES THE OFFENSE CHARGED. I. In his first assignment of error, appellant contends the trial court erred by allowing the State to impeach one of its own witnesses, Ann Mentall, with a prior inconsistent statement with- out a showing of affirmative damage as required by Evid. R. 607. Appellant's assignment of error lacks merit. -3- Evid. R. 607 provides, in pertinent part: The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. At first Mentall, a seventy-five year old resident of Euclid Villa whom the trial court characterized as being extremely nervous, testified she did not remember the date of the incident and that she had not given a statement to the police. After the State gave Mentall a copy of her statement to the police, she testified that she had seen a black man, who worked in the build- ing, hitting a white man, who worked in the building, with a hammer. Mentall could not identify either appellant or Varner. Reviewing this testimony, we find that the State did not attack Mentall's credibility. If anything, the State attempted to bolster her credibility. Accordingly, appellant's first assignment of error is not well taken. II. In his second assignment of error, appellant contends the trial court erred when it did not instruct the jury on the lesser-included offense of aggravated assault, in violation of R.C. 2903.12. Appellant's assignment of error lacks merit. Appellant made no objection to the trial court's instruction to the jury. Crim. R. 30 provides, in pertinent part: -4- A party may not assign as error the giving or the failure to give any instructions unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. "In the absence of plain error, a reviewing court will not consider alleged errors in the failure of the court to give instructions where appellant has not complied with the provisions of Crim. R. 30." Parma v. Jackson (1989), 58 Ohio App. 3d 17, 1 19. "Notice of plain error under Crim. R. 52(B) is to be taken with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long (1978), 53 Ohio St. 2d 91, paragraph three of the syllabus. "Plain error does not exist unless, but for the error, the outcome at trial would have been different." State v. Watson (1991), 61 Ohio St. 3d 1, 6. R.C. 2903.12 provides, in pertinent part: (A) 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: (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. 1 Crim. R. 52(B) provides "[p]lain error or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. -5- In State v. Deem (1988), 40 Ohio St. 3d 205, paragraph five of the syllabus, the Court held that: Provocation, to be serious, must be rea- sonably sufficient to bring on extreme stress and the provocation must be reasonably suffi- cient to incite or to arouse the defendant into using deadly force. In determining whether the provocation was reasonably suffi- cient to incite the defendant into using deadly force, the court must consider the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time. (Citation omitted). Appellant argues that he assaulted Varner during a fight precipitated by racial remarks made by Varner. Appellant did not testify at trial. Evidence adduced at trial reveals the following: Varner testified that he suffers from "concussion syndrome" and does not remember the incident. Margie Zelman, Administrator for Euclid Villa, testified that on the day of the incident, she assigned appellant to paint some benches in a workroom. Julia Manning, a sixty-nine year old resident of Euclid Villa, testified that she was in a sitting room, near the workroom, when she saw Varner walk by. A few moments later she saw appellant walk by carrying a large hammer. Manning went on to testify that she heard "words" between appellant and Varner and then heard Varner screaming. When Manning ran out into the hallway, she observed appellant hitting Varner on the head with the hammer and swearing. Manning stated that appellant seemed shocked that she was there and, at first, she believed he was -6- going to hit her with the hammer. Appellant then headed down the hallway. Allen Pinter, Administrator for Associated Estates, the company which manages Euclid Villa, and Zelman, testified that when they arrived on the scene, they found Varner covered with blood and paint, and that the entire area was covered with blood and paint. Pinter stated that Varner was incoherent, with his arms covering his head, and "wobbling" from wall to wall. Pinter further stated that he followed a pair of paint footprints to the entrance of the building where he found a hammer with blood on it. Manning did not think the hammer Pinter found was the one she saw appellant carrying. Several hours after the incident, appellant turned himself in at the Euclid Police Station. In an oral statement given to the police, appellant stated that Varner, who was holding a wrench and making racial remarks, had pushed him. Appellant's mother testified that appellant had told her that Varner made it miserable for him to work at Euclid Villa by making racial remarks. Barb Kohler, a Service Representative at Cencor, the temporary service agency that employed appellant, testified that appellant had told her that Varner was giving him a hard time and calling him names. She stated that appellant had not indicated that Varner had been making racial remarks. John Lapin, Property Manager for Associated Estates, testified that after Kohler told him that appellant had -7- complained, he spoke with both men and they told him that the problem would be worked out. Wanda Cohen, a Housekeeper at Euclid Villa, testified that appellant had told her that Varner was always riding him and was hard on him. Cohen stated that appellant had never mentioned that the tension between Varner and himself was based on race. Steve Kincaid, a maintenance worker at Euclid Villa, testified that on several occasions, including the day of the incident, appellant had stated that he was going to mess Varner up. Kathy Kincaid, a security guard at Euclid Villa, testified that, on the day of the incident, appellant threatened to kill Varner. She admitted that she did not report these threats until after the incident. Finally, none of the witnesses observed a wrench at the scene of the incident. We find that the evidence adduced at trial does not suffi- ciently demonstrate serious provocation. As a result, we find that the trial court's failure to instruct the jury on the lesser included offense of aggravated assault did not constitute plain error. Appellant also contends under this assignment of error that he was denied the right to effective assistance of counsel because his trial counsel failed to request a jury instruction on aggravated assault. -8- In Strickland v. Washington (1984), 466 U.S. 668, 687, the court set forth the test for determining whether a defendant had effective assistance of counsel: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction *** resulted from a breakdown in the adversary process that renders the result unreliable. See, also, State v. Frazier (1991), 60 Ohio St. 3d 247. In State v. Bradley (1989), 42 Ohio St. 3d 136, paragraph two of the syllabus, the court held that: Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representa- tion and, in addition, prejudice arises from counsel's performance. (Citations omitted). Bradley also held that: To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Id. at paragraph three of the syllabus. We find that even if appellant's trial counsel had requested an instruction on aggravated assault, the result of the trial -9- would not have been different. As a result, appellant has failed to show prejudice. Accordingly, appellant's second assignment of error is not well taken. III. A review of appellant's sentence reveals that it is improper. Under App. R. 12 an appellate court may address error even though it is not assigned as error. See C. Miller Chevrolet v. Willoughby Hills (1974), 38 Ohio St. 2d 298, 301; State v. Thrower (1989), 62 Ohio App. 3d 359, 379. We find this to be especially true when, as in this case, the error amounts to plain error. In an entry journalized on October 26, 1990, the trial court sentenced appellant to a term of fifteen to twenty-five years, with fifteen years actual incarceration. At the time of sentencing, R.C. 2903.02 provided that attempted murder was a felony of the first degree. The penalty for a felony of the first degree is imprisonment for an indefinite term with a minimum of four, five, six, or seven years and a maximum of twenty-five years. It is necessary, therefore, to remand this case for resentencing. Judgment reversed and remanded for resentencing. This cause is reversed and remanded for further proceedings consistent with this journal entry and opinion. It is, ordered that appellant(s) recover of said appellee his costs. -10- The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, P.J., CONCURS; HARPER, J., DISSENTS. (See Dissenting Opinion Attached) LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60898 : STATE OF OHIO : : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION LEZESKER HALL : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1992 HARPER, J., DISSENTING: I respectfully dissent from the judgment of the majority overruling appellant's assignments of error and affirming the judgment of the court below. I do not agree with the majority that this court cannot recognize plain error in the trial court's failure to instruct the jury on a lesser offense of aggravated assault. The failure to instruct on a lesser offense precluded the jury from considering the mitigating circumstances that could have lead the jury to finding appellant guilty of aggravated assault. Such error in no uncertain terms is consistent with both case law and statutory definition of plain error. -2- Crim. R. 52 provides: "(B) Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Plain error is present when but for the error, "the outcome of the trial clearly would have been otherwise." State v. Long (1978), 53 Ohio St. 2d 91, 96; State v. Underwood (1983), 30 Ohio St. 3d 12, 13; State v. Watson (1991), 61 Ohio St. 3d 1. "A 'plain error,' committed by a trial court and reviewable on appeal, is an obvious error which is prejudicial to an accused, although neither objected to nor affirmatively waived, which, if allowed to stand, would have a substantial adverse impact on the integrity of and public confidence in judicial proceedings." State v. Craft (1977), 52 Ohio App. 2d 1. Plain error is also invoked to avoid a miscarriage of justice; Long, supra, at 96, when there is obvious prejudice to an accused; and to reaffirm public confidence in the judicial process. United States v. Atkins (1936), 397 U.S. 157; see also Craft, supra. The judiciary commands public confidence when it addresses the concerns of the entire spectrum of the population which looks at the judiciary as its last resort. When such confidence is lost there is chaos and the judiciary, "the least dangerous branch", becomes powerless to undo the damage it failed to recognize. The Ohio legislature did not pass Crim. R. 52 into law to window dress the criminal statute. It is in the statute to give appellate courts the opportunity to show their independence and neutrality in recognizing that there are few times when justice does not live up to its billing. Crim. R. 52 is not in the -3- statute so that appellate courts can dance around its meaning with fancy rhetoric only to rubber stamp a clearly erroneous decision that is prejudicial to the accused. This court held in State v. Muscatello (1977), 57 Ohio App. 2d 231, that an error which has constitutional implications necessarily involves substantial rights of an appellant and should be reviewed as plain error, pursuant to Crim. R. 52. A conviction on attempted murder which carries a higher penalty than aggravated assault where there is evidence that can reduce the conviction to aggravated assault involves a substantial constitutional due process right. This court, therefore, must live up to its judicial creed and recognize that plain error is not to be determined by designating some plain errors as important while others as harmless. When an error involves a substantial right it is plain error and any attempt to create a harmless plain error is not supported by either the statute or the rule of decision. The majority cited the Ohio Supreme Court holding in State v. Deem (1988), 40 Ohio St. 3d 205, which states in paragraph five of the syllabus as follows: "Provocation, to be serious, must be reasonably sufficient to bring on extreme stress and the provocation must be reasonably sufficient to incite or to arouse the defendant into using deadly force. In determining whether the provocation was reasonably sufficient to incite the defendant into using deadly force, the court must consider the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time." (Citation omitted). -4- It follows that provocation can be a product of an immediate act or a history of an accumulation of acts and incidents that sufficiently arouses an individual to react with deadly force. The record in the within case is replete with incidents that could arouse any saintly being into action. As the Ohio Supreme Court held in Deem, supra, "The court must consider the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time." (Emphasis added.) The majority noted appellant's argument that he assaulted Varner in a fight that was precipitated by racial remarks made by Varner, but concluded, however, that "appellant did not testify at trial". The remarks about appellant's failure to testify could create an inference that his testimony was necessary in order to instruct on provocation. The following evidence which was adduced at trial showed a history of provocations and remarks offensive to any person's sensitivity, the result of which when put together can cause violent rage in an individual and appellant's testimony should not be a prerequisite to jury instruction on provocation. Appellant was employed on January 16, 1990 to mop, paint, clean bathrooms and stairwells. Mr. Varner was employed as a maintenance person. The two job descriptions are distinctly different from each other. Approximately one month after appellant's employment, Mr. Varner claimed that supplies were missing. Even though all employees had access to the supply -5- room, Mr. Varner suspected appellant as the supplies thief. Mr. Varner did not keep this naked suspicion to himself but informed their superior, Ms. Zellman, that he suspected appellant was the rogue. Ms. Zellman, acting on and apparently believing Mr. Varner's information, changed the key to the storage room and gave the new set of keys to every employee except appellant. By then it was obvious to all that the appellant is a rogue who could not be trusted with a key to the storage room. Appellant informed Ms. Zellman that he did not appreciate being told what to do by Mr. Varner, who constantly picked on him, even though he was not his supervisor. Ms. Zellman informed Varner and other employees that she would tell appellant what jobs he was to perform. In spite of constant complaints by appellant of his relationship with Varner, Ms. Zellman never sought a resolution but rather perceived the situation as not being a "problem". Everyone in the establishment knew that there was a problem between the two but could not tell what it was. There was evidence that appellant threatened Varner on several occasions but there was no evidence that appellant suffered from any mental instability. What was missing from the testimony of the state witnesses was why appellant was threatening Mr. Varner. Mr. Kincaid testified that appellant told him that if "Homer keeps on messing with him, he don't have to put up with it, he always carries a gun in his car". Mrs. Kincaid testified that appellant said to her, "I am tired of them fucking with me, I would like to -6- fuck them up, I would like to kill him." "Him" refers to Mr. Varner. Detective Bensi and Jorz testified that when appellant turned himself in to the police, he stated that Mr. Varner had a wrench and called him a "nigger", which was what triggered the fight between the two on March 26, 1990. Julia Manning testified that she heard words being exchanged between appellant and Mr. Varner before the fight broke out. She, however, did not hear exactly what was said. The detectives did not see a wrench when they investigated, however, Ms. Zellman ordered the room cleaned by Mr. Kincaid, who testified of hearing threats but never knew why, before the detectives arrived. Some witnesses saw two screwdrivers which the detectives did not see. It is not inconceivable for a maintenance person to carry a wrench at his place of work, and failure of the detectives to find a wrench is insufficient to preclude a jury instruction on Mr. Varner's contribution to the causes of the fight. Mrs. Hall testified that her son had complained to her of Varner's relationship with him. Mr. Varner constantly taunted him and called him racial names. Appellant told her that Varner once said to him that "they hang niggers like him in Painesville." In spite of all this testimony, the majority concluded: "We find that the evidence adduced at trial does not sufficiently demonstrate serious provocation. As a result, we find that the trial court's failure to instruct the jury on the lesser included offense of aggravated assault did not constitute plain error." -7- It is my opinion that sufficient evidence was presented. The jury should have been given the opportunity by instruction to determine if appellant was provoked by Mr. Varner's persistent transgressions and whether appellant's conduct on March 26, 1990, while improper, was an understandable reaction to Mr. Varner's repeated and deliberate provocations, which went unchecked by the employer. Racial insults should not be a topic of objective analysis, but a subjective determination, bearing in mind the surrounding circumstances and the individual's frame of mind. It is like analyzing a case of a battered woman syndrome, provocation is looked at from the totality of the circumstances including the history of the abuse. A complete understanding of the situation can be made manifest only when there is an inquiry beyond the immediate incident. Our job after all is to see that justice is done within the confines of the law and not to be drawn into supporting a prosecution with a doubtful motive as to whether an attempted murder indictment was to do justice or an attempt to seek the harshest punishment possible because it can be obtained. We cannot afford to ignore the danger racial taunting can cause, and it is my opinion that when such issue comes before the court, both parties should be made aware of this danger and making a hero out of one by ignoring his contribution to the incident while making a villain out of the other is not my understanding of justice. The trial court should have instructed the jury on the issue of provocation. .