recognizing “that reversal will not occur because of unrecorded * * * sidebars where the defendant has failed to demonstrate that a request was made at trial or objections were made, that an effort under App.R. 9 was made to reconstruct what occurred, and that material prejudice resulted”
How later courts described this case
- recognizing “that reversal will not occur because of unrecorded * * * sidebars where the defendant has failed to demonstrate that a request was made at trial or objections were made, that an effort under App.R. 9 was made to reconstruct what occurred, and that material prejudice resulted”
- holding that shooting in the head at point-blank range showed that the defendant killed the victim purposely despite defendant’s claim that the “gun just went off”
- observing that murder under R.C.2903.02 is a lesser-included offense of aggravated murder under R.C.2903.01[A], and the sole difference is that the element of "prior calculation and design" is absent from murder
- concluding that placing gun against the victim's head required thought and helped support proof of prior calculation and design
Written by the judges who cited it.
The opinion
Moyer, C.J.,
concurring in part and dissenting in part. I concur in the holding of the majority that affirms the conviction and sentence of death pursuant to R.C. 2903.01(B) (felony-murder). However, I dissent as to the conviction for aggravated murder pursuant to R.C. 2903.01(A) (prior calculation and design).
In 1974, the General Assembly explicitly superseded previous court decisions that held murder could be deemed premeditated even though the intent to kill was conceived and executed on the spur of the moment. See 134 Ohio Laws, Part II, 1866, 1900, Am.Sub.H.B. No. 511; 1973 Technical Committee Comment to Am.Sub.H.B. No. 511 (a Legislative Service Commission summary), R.C. 2903.01; State v. Taylor (1997), 78 Ohio St.3d 15, 19 , 676 N.E.2d 82, 88 .
*352 R.C. 2903.01 redefined the requisite element of intent for the crime of aggravated murder to be “prior calculation and design,” which embodies “the classic concept of cold-blooded killing while discarding the notion that only an instant’s prior deliberation is necessary.” 1973 Technical Committee Comment, supra, R.C. 2903.01; State v. Taylor, 78 Ohio St.3d at 19 , 676 N.E.2d at 88 . This standard is more stringent than the “deliberate and premeditated” standard of the former murder statute. State v. Cotton (1978), 56 Ohio St.2d 8 , 10 O.O.3d 4 , 381 N.E.2d 190 , paragraph one of the syllabus. In adopting this more stringent standard, the General Assembly intended to require more than an instantaneous deliberation, and more than a few moments of deliberation. It intended to require a planned scheme designed to implement a calculated decision to kill. Id., 56 Ohio St.2d at 11 , 10 O.O.3d at 6 , 381 N.E.2d at 193 ; State v. Taylor, 78 Ohio St.3d at 19 , 676 N.E.2d at 88 .
The statute and its purpose are clear. Nonetheless, a majority of this court once again disregards the words and the intent of the General Assembly and of its own precedent to extend the application of “prior calculation and design” beyond its intended scope. In doing so, it disregards the explicit rule of construction under R.C. 2901.04, which states that “[sjections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.”
The majority holds that prior calculation and design was proven in this case because “[i]t was an action that required thought on [the defendant’s] part to place the gun at the victim’s forehead, and he took additional time to decide to pull the trigger in order to carry out a calculated plan to obtain money from the store. This was not a spur-of-the-moment accidental shooting on the part of a robber. * * * The evidence clearly establishes that Goodwin acted with prior calculation and design in killing Mustafa. Under any reasonable view, the killing was done with purpose.”
While the majority may be correct that the evidence supports a finding that this was a purposeful, non-accidental killing, there is absolutely nothing in the record to indicate more than an instantaneous deliberation, or more than an intent to kill conceived and executed on the spur of the moment.
The majority opinion equates “purpose” with “prior calculation and design.” However, these are two separate elements of aggravated murder. “Purpose,” without prior calculation and design, is sufficient for a conviction of murder under R.C. 2903.02, but cannot sustain a finding of guilt for aggravated murder under R.C. 2903.01(A). As these are separate elements, “purpose” cannot be a basis for finding “prior calculation and design.”
Aside from the purposeful nature of the killing, the majority, in this case, has found prior calculation based solely on the fact that Goodwin raised a gun to the *353 victim and pulled the trigger. This reasoning is wholly inadequate and simply restates the fact that Goodwin did shoot Mustafa. The act of shooting Mustafa, however, cannot be the sole basis for a finding of prior calculation and design, as it does not distinguish between whether the killing was aggravated murder, murder, or voluntary manslaughter. All of these charges are based on an intentional killing that would require the minimal thought process of raising a weapon and implementing it to effect a killing. However, only aggravated murder requires an additional element of prior calculation and design. If the conduct of the defendant in this case constitutes prior calculation and design, it is difficult to imagine how any non-accidental killing could be anything less. Such a holding runs contrary to the plain meaning of “prior calculation and design,” the explicit legislative intent of the statute, and our prior case law. R.C. 2903.01(A); 134 Ohio Laws, Part II, 1866, 1900; 1973 Technical Committee Comment, supra, R.C. 2903.01. See, also, e.g., State v. Reed (1981), 65 Ohio St.2d 117 , 19 O.O.3d 311 , 418 N.E.2d 1359 (when the only evidence of intent, in a murder resulting from an alleged attempted robbery, is the shooting itself and a prior statement by the defendant that “if a cop got in his way [during a robbery] he would blow him away,” the evidence is insufficient to establish prior calculation and design); State v. Cotton, at paragraphs one and two of the syllabus (“ ‘prior calculation and design’ is a more stringent element than * * * ‘deliberate and premeditated-malice’ ”; “[i]nstantaneous deliberation is not sufficient to constitute ‘prior calculation and design’ ”). Under the new test implied in the majority opinion, the charges of aggravated murder, murder, and voluntary manslaughter will be rendered indistinguishable.
The only other support the majority cites to bolster its position is that Goodwin planned the robbery. This is, as a matter of law, insufficient to prove that he planned to murder Mustafa. The majority holding effectively equates a scheme designed to implement a calculated decision to rob, with a scheme designed to implement a calculated decision to kill. Prior calculation and design for murder must be based on a calculated decision to kill, not a calculated decision to commit robbery or any other felony. To hold otherwise would render superfluous the felony-murder provisions of R.C. 2903.01(B). This result contravenes the general rule of statutory construction codified under R.C. 1.47(B), stating that in enacting a statute, “[t]he entire statute is intended to be effective.” See Richards v. Market Exchange Bank Co. (1910), 81 Ohio St. 348 , 90 N.E. 1000 .
Further, if the robbery plan had involved a preplanned intent to kill, it makes no sense that Goodwin would kill Mustafa and not kill the other store clerk who was a witness to the robbery and killing. Though the majority cites the fact that after Mustafa was shot, Goodwin grabbed the other clerk and forced him at gunpoint to go to the safe, it ignores the fact that this clerk was not injured. If this second clerk had been shot, or even if Mustafa had been shot numerous *354 times, the cases cited by the majority might support a finding of prior calculation and design. However, without some break in the sequence between when Goodwin conceived of shooting Mustafa and when the death was effectuated, the cases cited by the majority do not support a finding of prior calculation and design in this case. See, e.g., State v. Palmer (1997), 80 Ohio St.3d 543 , 687 N.E.2d 685 (defendant convicted of killing two victims, each shot twice in the head execution-style, and evidence supported a finding that the second victim was killed because he arrived at the scene just after the first shooting); State v. Taylor (defendant shot the victim several times and followed him as he tried to crawl away and then shot him three or four more times); State v. Cotton (defendant shot two police officers who were chasing him in connection with a forged check, after stealing the gun from one officer and taking the time to shoot each in the back after they were wounded and either incapacitated or trying to retreat).
These cases are significantly different from the case at issue. They all involve more than one shooting and a significant period of time passing between the first shot and the final shot. Most involve more than one victim, and all involve killing those who were wounded or who witnessed the original shooting. None correlate to a case where one victim was killed in a single instant and no further injury to that victim or other witnesses occurred.
When the evidence, is construed in a light most favorable to the prosecution as required under State v. Jenks (1991), 61 Ohio St.3d 259 , 574 N.E.2d 492 , paragraph two of the syllabus, there is insufficient evidence to find, beyond a reasonable doubt, that Goodwin calculated, schemed, or planned to kill Mustafa before entering the store. Nor is there any evidence of more than an instantaneous deliberation between the time he formed the intent to kill Mustafa, if he even made a conscious decision to do so, and the moment he pulled the trigger. There is no evidence that the robbery plan involved a plan to kill. There is no evidence that would explain the killing of Mustafa but not the other clerk, and there is no evidence that Goodwin was prevented from killing the other clerk if that had been his intention. In fact, all evidence on the record contradicts these theories. Thus, for all the aforementioned reasons, I dissent from the majority and would affirm the conviction and sentence of death pursuant to R.C. 2903.01(B) only, and reverse the conviction pursuant to R.C. 2903.01(A).
Pfeifer and Cook, JJ., concur in the foregoing opinion.