COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61216 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION GREGORY HUTCHINS : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 5, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 254329. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor A. Steven Dever Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Patrick E. Talty, Esq. 20800 Center Ridge Rd. #211 Rocky River, Ohio 44116-4386 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Gregory Hutchins appeals his conviction for aggravated murder with a gun specification in violation of R.C. 2903.01. Appellant was sentenced to a term of incarceration of twenty years to life imprisonment, with an additional three years for the gun specification. On June 17, 1990, appellant and his wife resided in an apartment located at 12336 Superior Avenue, Cleveland, Ohio. In a neighboring apartment lived the victim, Charles Berry and Tonae Bolton. These apartments were located above a small grocery store, Superior Beverage. Mr. Berry was working at the store on the day of his death. Appellant was in the store, and an argument developed between the two men, both of whom were intoxicated. The victim used the telephone located in the store, against the specific orders of the store owner. The appellant, who was a friend and former employee of the owner, objected to the victim's use of the phone. The appellant returned to his apartment, argued with his wife, and drew out his shotgun. He proceeded out onto the balcony of the apartment. The victim was outside, and below the balcony when he was shot by the appellant. Tonae Bolton testified that she overheard the argument between the appellant and his wife which preceded the shots. Ms. Bolton testified that she heard Mrs. Hutchins holler, "no, Greg, no." (T. 30, 32); and that Mrs. Hutchins told her husband not to - 3 - get the gun (T. 33). Ms. Bolton testified that she heard only the voice of Mrs. Hutchins, and the tone of her voice was "real upset"; "a high tone of voice" and that "she was hollering" (T. 32). Ms. Bolton recognized the voice, and knew Mrs. Hutchins from the store (T. 32). Prior to trial, a motion to suppress the testimony of Ms. Bolton was filed. The prosecution argued that Ms. Bolton's testimony would be admissible as an exception to the hearsay rule under Evid. R. 803(2), excited utterance, or Evid. R. 803(3), then existing mental, emotional, or physical condition. Appellant argued that the testimony was inadmissible as a privileged communication between Mr. and Mrs. Hutchins. In the alternative, appellant argued that the testimony did not meet the requirements of any hearsay exception. The judge stated: THE COURT: Frankly, I am not satisfied that it is hearsay, which isn't the question at the moment. You see the wife or the husband can testify and contradict, if you will, what this witness Bolton says that is forcing them to testify and they are not obliged to testify, to that extent, I am concerned. I am satisfied with your exception, assuming the applicability there is, if there is that rule. This testimony is perfectly admissible. I have no problem with it. The objection is overruled. The motion in limine is overruled. (T. 23.) Appellant sets forth two assignments of error. Appellant's first assignment of error. - 4 - I THE TRIAL COURT ERRORED (SIC) TO THE PREJUDICE OF GREGORY HUTCHINS BY PERMITTING THE HEARSAY TESTIMONY OF A THIRD PARTY CONCERNING A PRIVELAGED (SIC) COMMUNICATION BETWEEN THE ACCUSED AND HIS WIFE. The law of this State which delineates the competency of witnesses is R.C. 2945.42, and states as follows: No person is disqualified as a witness in a criminal prosecution by reason of his interest in the prosecution as a party or otherwise, or by reason of his conviction of crime. Husband and wife are competent witnesses to testify in behalf of each other in all criminal prosecutions, and to testify against each other in all actions, prosecutions, and proceedings for personal injury of either by the other, bigamy, or failure to provide for, neglect of, or cruelty to their children under eighteen years of age or their physically or mentally handicapped child under twenty-one years of age. * * * * Husband or wife shall not testify concerning a communication made by one to the other, or act done by either in the presence of the other, during coverture, unless the communication was made or act done in the known presence or hearing of a third person competent to be a witness, or in case of personal injury by either the husband or wife to the other, or rape or felonious sexual penetration in a case in which the offense can be committed against a spouse, or bigamy, or failure to provide for, or neglect or cruelty of either to their children under eighteen years of age or their physically or mentally handicapped child under twenty-one years of age, or neglect or abandonment of such spouse under such sections. The presence or whereabouts of the husband or wife is not an act under this section. The rule is the same if the marital relation has ceased to exist. - 5 - Appellant argues that not only does this marital privilege exist between spouses, but that it also attaches to any third party who happens to overhear a confidential communication between spouses. Appellant has cited no authority for this proposition, and this court considers appellant's position to be palpably absurd. The marital privilege exists only between those persons joined in matrimony under the laws of this State. Nonetheless, the testimony of Ms. Bolton constitutes hearsay under Evid. R. (801). On appeal, the prosecution contends that Ms. Bolton's testimony is admissible under Evid. R. 803(2), as an excited utterance. RULE 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness; * * * * (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. * * * * In State v. Wallace (1988), 37 Ohio St.3d 87, the Supreme Court set forth a four-part test to determine what constitutes an excited utterance. The court reasoned: The excited-utterance exception is essentially a codification of Ohio common law governing spontaneous exclamations. At common law, this court applied a four-part - 6 - test in determining what constituted a spontaneous exclamation: "(a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement or declaration spontaneous and unreflective, "(b) that the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over his reflective faculties, so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, "(c) that the statement or declaration related to such startling occurrence or the circumstances of such startling occurrence, and "(d) that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration." Potter v. Baker (1955), 162 Ohio St. 488, 55 O.O. 389, 124 N.E. 2d 140, paragraph two of the syllabus (followed and approved in State v. Duncan [1978], 53 Ohio St. 2d 215, 7 O.O. 3d 380, 373 N.E. 2d 1234, paragraph one of the syllabus). (Citation omitted.) (Footnote omitted.) The testimony demonstrates that appellant went into his apartment, and then went out onto the balcony with a shotgun in his hands. Mrs. Hutchins' statements to the appellant were caused by the startling occurrence of appellant's retrieval of his shotgun; her tone of voice indicated that she was extremely - 7 - agitated; her words were uttered contemporaneously with appellant's actions; and she was present in the room with her husband. The standard for reviewing the trial judge's determination on the admissibility of an excited utterance was also set forth in Wallace, supra: The standard for reviewing decisions of the trial judge on excited-utterance exceptions was set forth by Judge Taft in Potter, supra, at 500, 55 O.O. at 394, 124 N.E. 2d at 146-147: "It is elementary that the trial judge is to decide those questions of fact which must be decided in order to determine whether certain evidence is admissible. * * * If his decision of those questions of fact, as reflected in his ruling on the admissibility of * * * [the] declaration, was a reasonable decision, an appellate court should not disturb it." The trial judge, under the facts presented, made a reasonable decision, which will not be disturbed. Appellant's first assignment of error is overruled. Appellant's second assignment of error. II THE VERDICT OF THE JURY FINDING GREGORY HUTCHINS GUILTY OF AGGRAVATED MURDER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In State v. Martin (1983), 20 Ohio App. 3 172, at syllabus 3, the court stated: 3. In considering the claim that the conviction was against the manifest weight of the evidence, the test is much broader. The court, reviewing the - 8 - entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. And, as recently stated by this court in State v. Clark (November 14, 1991), Cuyahoga App. No. 59427, unreported, the test for determining manifest weight was set forth in State v. Thompson and Malone (July 18, 1991), Cuyahoga App. Nos. 58803 and 58834, unreported. The Thompson and Malone decision held: The scope of review to be used where a party alleges the judgment of the trial court is against the manifest weight of the evidence was recently stated by this court in State v. Scott (Mar. 23, 1989), Cuyahoga App. No. 55114, unreported, at p. 7-8. The primary task of weighing evidence and judging the credibility of witnesses is left to the trier of fact, in this case the jury. State v. DeHass (1967), 10 Ohio St. 2d 230, at syllabus number 1. Therefore, a reversal of a judgment based on manifest weight of the evidence will only be done in exceptional cases. State v. Woods (1985), 25 Ohio App. 3d 35. A reviewing court will not reverse where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. The appellant argues that the prosecution did not meet its burden under R.C. 2903.01 of proving the appellant acted with prior calculation and design in causing the death of Charles - 9 - Berry. In State v. Moreland (1990), 50 Ohio St.3d 58, the Supreme Court reiterated its position on the element of prior calculation and design: In State v. Cotton (1978), 56 Ohio St. 2d 8, 10 O.O. 3d 4, 381 N.E. 2d 190, paragraph three of the syllabus, we held that: "Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified." In the case sub judice, the jury heard testimony from Ms. Bolton regarding the argument between appellant and his wife. They heard the testimony of Susan Holly, the store cashier who stated that ten to twenty minutes after the argument between appellant and the victim, the appellant telephoned her and stated that he was tired of the treatment he was receiving, and that he was going to get his shotgun and shoot or kill everyone in the store. (T. 98-100; 108). Ms. Holly also testified that approximately forty-five minutes elapsed between the argument and the shots (T. 108). The jury heard substantial competent, credible evidence which, if believed, proved the element of prior calculation and design. Appellant next argues that the court erred in failing - 10 - to give a requested instruction on voluntary manslaughter. In State v. Lawrence (1989), 44 Ohio St.3d 24, the court stated: Although voluntary manslaughter may be an inferior degree of aggravated murder, see State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E. 2d 294, paragraph two of the syllabus, appellant was entitled to the jury instruction only if there was evidence on which the jury could have reasonably found that the appellant knowingly caused the deaths of Jesse and Cheryl Mooney while acting "* * * 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[s] that * * * [was] reasonably sufficient to incite * * * [appellant] into using deadly force * * *." R.C. 2903.03(A). See State v. Kidder (1987), 32 Ohio St. 3d 279, 280, 513 N.E. 2d 311, 314; Keeble v. United States (1973), 412 U.S. 205. Stated in the converse, appellant was not entitled to the jury instruction unless the jury could have reasonably found that the victims seriously provoked appellant and that the serious provocation was reasonably sufficient to have incited him into using deadly force. Even if the jury could reasonably have found the victim seriously provoked the appellant, the judge did not err in denying appellant's requested instruction because the provocation was not reasonably sufficient to have incited the appellant into using deadly force. An argument over the use of a telephone ought not reasonably provoke one participant to murder the other. Appellant's second assignment is overruled. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J., and BLANCHE KRUPANSKY, J., CONCUR. JAMES D. SWEENEY 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. .