Petition — Chvosta v. Pierre

Supreme Court, U. S.

AE FILED

80-285 AUG2 3 1980

WECHAETRODAK, JR., CLERK

Supreme Court of the United States

October Term, 1980

JERRY F. CHVOSTA,

Petitioner,

VS.

ALISON PIERRE AND JACK BAZIE,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the Court of Appeals for the

Eighth District of Ohio

JERRY F, CHVOSTA

4548 Warrensville Center Road

North Randall, Ohio 44128

Tel. (216) 475-7463

Petitioner

JOHN D. LIBER

SPANGENBERG, SHIBLEY, TRACI & LANCIONE

National City Bank Bldg.

623 Euclid Ave.

Cleveland, Ohio 44114

Tel. (216) 696-3232

Attorneys for Respondents

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO-—TEL. (216) 621-6047

QUESTIONS PRESENTED

. Is it equal protection under amendment 14, US.

Constitution, to deny petitioner freedom from harass-

ment by blacks when blacks are protected from harass-

ment by whites? (Referred to in daily media as re-

verse discrimination. )

. Does the right of blacks to live where they please in-

clude the right to harass whites into “white flight”?

. Did the city police department deny petitioner the

equal protection of law in not taking appropriate action

and prosecution of black harassers of a 36-year white

resident to avoid being accused of racial discrimination

by the N.A.A.C.P.?

. Did certain police officers take a negative attitude

regarding petitioner’s rights because he complained to

their superiors regarding their misfeasance and non-

feasance?

. As found by this court in the Bakke case, 438 US.

265, 57 L. Ed. 2d 750, is there a parallel here in too

much affirmative action for blacks and a decrease in

equal protection for whites?

. Is it a denial of due process for the arresting officer

to lie down at the feet of petitioner in the arresting

act with his partner and then report to the news

reporter that petitioner struck him, which was then

printed in newspapers?

. Is it a denial of due process of law when persons in

privity with the respondents made person to person

threats to prospective witnesses for petitioner, (“if

you’re going to stick up for him you better move”),

with the result that not one was willing to testify

in petitioner’s behalf regarding acts of harassment

toward him and his good character?

10.

11.

12.

13.

14.

II

Is it denial of due process for the police department

to re-enact the incident for TV cameras the next

morning entirely on plaintiff’s version of the shooting

without petitioner or his attorney present and showing

said version on TV several times?

Is it a denial of due process of law and equal protec-

tion to take from the jury the weighing of facts of

self-defense as petitioner’s first affirmative defense?

Is it a denial of due process of law and equal protection

for the trial judge to take from the jury the con-

sideration of assumption of risk by respondents as pe-

titioner’s second affirmative defense?

Is it a denial of due process of law for the court to

find petitioner guilty of negligence without letting the

jury consider that question on the facts presented?

Did the court usurp the province of the jury as the

trier of the facts?

Is it due process of law and equal protection for the

trial judge to set trial date and hold court just 2 weeks

prior to his being up for re-election knowing that his

denial of due process to petitioner would assure a

plurality of black votes due to favorable publicity in a

black-owned and circulated newspaper?

Is it due process of law and equal protection for the

courts to accept the respondent’s perjured testimony

and that of her witnesses in fabricating a story of their

activity when the facts indicate a course of action

whereby they were harassing petitioner?

Is it due process of law and equal protection for the

trial court to hold that self-defense and accident can-

not be concurrent when the testimony showed that it

can be?

15.

16.

17.

18.

19,

20.

21.

22.

III

Is it due process of law and equal protection for the

trial court to disregard that Petitioner was on his own

property and was therefore acting in self-defense while

Respondent was away from her home several hundred

yards, armed with a stick and attacking Petitioner in-

stead of avoiding him?

Is it not well established that a man’s home is his

castle and he has a right to defend it and himself

while thereon, thereby acting in self-defense?

A recent Ohio Court of Appeals held unconstitutional

the burden of proof on Defendant to establish self-

defense, thereby providing another self-defense ques-

tion; is it not appropriate for this court to issue the

writ and consider the self-defense aspects of this case?

In a racially changing neighborhood is it not equal

protection for a long-time resident to defend himself

against a gang of aggressors interfering with his yard

chores?

Is it due process of law and equal protection for the

F.B.I. to refuse to investigate the racial aspects of

harassment of Petitioner?

Is it due process of law and equal protection for Pe-

titioner’s white attorney to withhold from his white

client that he is a life member of the N.A.A.C.P. know-

ing that he cannot serve two masters?

Is it due process of law and equal protection for Pe-

titioner’s attorney to refuse to file a counter-claim in

order to bring the case into the realm of mutual combat

common law whereby many litigants have been denied

damages from either side?

Is it due process for Petitioner’s attorney to engage in

token-level cross examination of the arresting officers

23.

24.

25.

26.

27.

28.

29.

IV

because he is an attorney for the police association

and thereby failed to establish that the officer lied

when he testified that he read Petitioner the rights

required by the Miranda decision?

Is it due process for the trial court to negate Ohio

case law, which denies punitive damages due to mit-

igating circumstances, by holding Petitioner negligent

and submitting to the jury the question of damages

only?

Is it due process for Petitioner’s attorney to fail to

object, enter objections and enter proffers into the

record as pointed out in the Court of Appeals Review

of the assignments of error?

Is it due process of law and equal protection for Pe-

titioner’s attorney to refuse to appeal to higher courts

and thereby force him to act as his own attorney?

Is it due process of law and equal protection for the

trial court to deny Petitioner’s testimony to a threat

by the leader of the gang that she would return with

a gun?

Due to the TV re-enactment, the extensive TV and

newspaper coverage of the incident, is it due process

of law for the attorney for Petitioner to not ask for

change of venue?

Is it due process of law for the court to permit Re-

spondent’s attorney to first put Petitioner on the wit-

ness stand in cross-examination without first making

out his case by direct examination of Respondent?

Is it due process of law for the opinion writing ap-

pellate judge to do so in the same year that he is up

for re-election, thereby gaining the black vote?

TABLE OF CONTENTS

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Reasons for Allowing the Writ -22........0.....c.cccccccsseeseeees 7

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ERSTE NST SES EE A CSN eS “Pen See 12

Appendix:

Judgment Entry of the Court of Common Pleas

I lilies Al

Journal Entry and Opinion of the Court of Appeals

of Cuyahoga County, Ohio (March 6, 1980) ........ A2

Judgment Entries of Ohio Supreme Court (May 29,

ot ER RSS SORE SR en oe Al5

TABLE OF AUTHORITIES

Cases

Marts v. State, 26 Ohio St. 162 (1875) 20000... 9

State v. Clifton, 32 Ohio App. 2d 284, 61 Ohio Op.2d

INES ERS STE OS ne ee 9

State v. Lovejoy, 48 Ohio Misc. 20 (1976) ....00.0000000...... 8

State v. McLeod, 82 Ohio App. 155, 37 Ohio Op. 522

a inca —aabsicnralh eat cidaineddcepelibeticeens sunitedinsanctenveeweresante 9,11

State v. Peacock, 40 Ohio St. 333 (1883) 002... 9

State v. Reid, 3 Ohio App. 2d 215, 32 Ohio Op.2d 316

Ne dli delldenchdibdnsheiabieasisciossninn 9

VI

Constitutional Provisions and Statutes

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Supreme Court of the United States

October Term, 1980

JERRY F. CHVOSTA,

Petitioner,

VS.

ALISON PIERRE AND JACK BAZIE,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the Court of Appeals for the

Eighth District of Ohio

OPINIONS BELOW

The Judgment Entry of the Cuyahoga County Court of

Common Pleas dated October 23, 1978 is printed in the

Appendix herein.

The Journal Entry and Opinion of the Court of Ap-

peals of Ohio for Cuyahoga County, Case No. 401°7 is

printed in the Appendix herein.

The Judgment of the Supreme Court of Ohio dis-

missing the appeal is printed in the Appendix herein.

JURISDICTION

The Order of the Supreme Court of Ohio dismissing

petitioner’s appeal from the Court of Appeals for Cuyahoga

County and overrule of appellant’s Motion for an order

directing said Court of Appeals to certify its record was

2

made and entered on May 29, 1980 and Notice of Appeal

was filed on June 27, 1980 with copy thereof to opposing

counsel.

The jurisdiction of this Court is invoked under 28

U.S.C. Section 1257(3) and timely filed within the re-

quired 90 days.

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment XIV:

“Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No state shall make or enforce any law which

shall abridge the privileges or immunities of the citizens of

the United States; nor shall any State deprive any person

of life, liberty, or property without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws. . .”

Constitution of Ohio:

Article I, Section 1 of the Ohio Constitution guarantees

citizens their right to protect their property.

Article I, Section 16 is entitled Redress in Courts:

“All Courts shall be open and every person for an injury

done him in his land, goods, person or reputation, shall

have remedy by due process of law, and shall have justice

administered without delay. Suits may be brought against

the state, in such courts and in such manner, as may

be provided by law.”

Article I, Section 19, Private Property Inviolate, Ex-

ception: “Private property shall ever be held inviolate

but subservient to the public welfare. .. .”

STATEMENT OF THE CASE

Petitioner Jerry F. Chvosta (hereinafter referred to

as Chvosta) resided at 16721 Lomond Blvd. in Shaker

Heights, Ohio for thirty-six (36) years. During the four

(4) or five (5) years prior to June 21, 1976, Chvosta be-

gan receiving harassment from certain neighborhood

teenagers. Eggs were thrown at his house. Destruction

wes done to his property. Several times there were threats

of bombing his house or bodily shooting him.

Chvosta’s response each time was to call the Shaker

Heights Police Department and to complain. On June 15,

1976 Chvosta requested a special meeting with Lt. Holo-

wenko in charge of the juvenil® unit of the Shaker Heights

Police Department to complain about the threats that were

made against him.

The harassment continued while Chvosta was dispos-

ing of a dead elm tree and replacing a maple tree in his

front yard. Two boys, J. Kevin Newbill and Kevin Free-

man were the main instigators of activity against Chvosta.

On June 21, 1976, Chvosta was in his front yard on

Lomond Blvd. cutting the grass with a power mower.

Five teenagers, three of them appeared to be girls and

two appeared to be boys, came down the driveway at

16801 Lomond and lingered in front of Chvosta’s house

about 8:30 P.M. They shouted at Chvosta but he ignored

them, intent on minding his own business. He wasn’t

bothering them as they fantasized. They were bothering

him with their leader, Sandra Williams, who wore light

blue slacks and blouse, as aunt of the Solomon girls.

Having been ignored, they gave up and left within a

minute.

4

Chvosta finished cutting the front lawn and returned

his power mower to his garage. He then proceeded to

the front again to pick up twigs, trash and hand-pull

clumps of grass not consumed by the mower. The time

was close to 9:00 P.M. and as he came down his driveway

and into the clearing between houses, he saw that they

were coming back across the street.

Wishing not to confront them at close range he turned

and went to his front door step to wait until they passed.

When they got to the sidewalk in front of Chvosta’s house

4hey stopped and the 19-year old aunt in light blue slacks

shouted “We can walk on your lawn all we want and

you can’t do anything about it.” They appeared to be the

same five (5) girls and boys who shouted at him about

8:30 as he was mowing the front lawn.

Chvosta replied “But I have to maintain it and I’m

trying to make it look nice”. To avoid shouting he slowly

approached them down the 16725 driveway next door to

his. The 19-year old aunt Sandra Williams repeated “We

can walk on your lawn all we want and you can’t do any-

thing about it”. By this time Chvosta had reached a normal

conversation distance from them and Sandra Williams

held a full-size brick to within six (6) inches of Chvosta’s

face and said “If you try to stop us you're going to get hit”,

at which time Chvosta saw that Alison Pierre, standing

at Sandra Williams’ left elbow, was holding a stick behind

her back, Sheila Solomon was at Sandra Williams’ right

elbow holding up a three-quarter size brick. Angela Gray

stood behind Sheila Solomon and Monica Hardy to Angel’s

right with an object in her hand.

Then Sandra Williams said “The next time we meet

I’m going to have a gun, there is going to be a shootout

and one of us will be dead”. Chvosta replied “But I’m

56 years old” and not wishing to prolong a useless argu-

5

ment he turned and went to his backyard hoping that

they would go away so he could do his work.

The group of five proceeded to 16801 Lomond to the

Newbill home and four of them walked back toward Lind-

holm. After waiting as long as 10 minutes he decided to

return to finish his front work. But, he feared that they

would return with a gun as Sandra Williams had threatened

so he decided to take along his shotgun, intending to lay

it down at his side as he worked on his hands and knees.

Halfway down his main lawn he heard Bernard Hardy,

sitting on the front step at 16801 Lomond, shout “He’s

out there again”. At the same time Chvosta saw the

group of five in conversation on the corner of Lomond and

Lindholm. Chvosta recalled that Kevin Newbill had said

that his father threatened to shoot Chvosta so he placed

himself to the west of a pine tree to observe what the

five were going to do; go away or come back. They im-

mediately started across Lomond directly toward him,

carrying bricks and large sticks and Sandra Williams ap-

peared to be holding a gray object to her bosom which

Chvosta assumed was a gun. As he backed into the pine

tree his feet were slipping on the roots and mulch. He

was preparing to cock the gun to possibly fire a warning

shot into the neighbor’s main lawn when it accidently dis-

charged.

Two of the girls were hit by the shotgun pellets.

Shaker Heights Police were called and Chvosta surrendered

to them.

Trial was held before the Honorable Judge Francis E.

Sweeney beginning on Oct. 16, 1978 and ending on Oct. 19,

1978 before a jury of eight (8) men and women.

The testimony showed that the girls had fabricated

a story of being at a house at 3698 Lindholm, occupied by

Mr. and Mrs. Alexander Solomon, Jr., parents of Sheila,

Bridget and Pamela Solomon and the temporary home

of the children’s aunt, 19-year old Sandra Williams, visiting

from Birmingham, Alabama. They testified that a meeting

at 3698 Lindholm lasted from 7:00 to 9:00 P.M. which could

not be true as they first walked past Chvosta while he

was mowing his front lawn at 8:30 P.M.

An officer of the Shaker Heights Police Department

informed Chvosta that when statements were being taken

at the station on the evening of the shooting, the parents

did all the talking, thereby putting the first words of

fabrication to the children.

A comparison of the testimony in the criminal case

and this civil case record will show conflicting, inconsistent

and reversed accounts of the girls and their witnesses.

When plaintiff’s attorney realized that the testimony

was no longer consistent, he rested his case without calling

other witnesses subpoenaed who would additionally expose

fabricated testimony entirely at variance with probable

facts.

The Court sided with plaintiff in sustaining a Motion

in Limine, thereby denying Chvosta his affirmative de-

fenses of self-defense and assumption of risk by plaintiff.

From the errors of the Trial Court and the jury award

Chvosta appealed to the Court of Appeals, Eighth Appel-

late District. The Court of Appeals affirmed the judgment,

but cited several instances of passive conduct by Chvosta’s

attorneys in not entering timely objections, exceptions and

proffers into the record.

The petitioner Chvosta then filed a Notice of Appeal

and Memorandum in Support of Jurisdiction to the Su-

preme Court of Ohio, case No. 80-652, which refused juris-

diction on May 29, 1980.

7

On June 26, 1980 petitioner Chvosta filed a Notice of

Appeal to the United States Supreme Court with copy to

counsel for appellees.

The stages in which the federal questions were raised

appear in the record of the Trial Court’s conduct of the

case, in briefs, oral argument to the Appellate Court and

in the opinion of the Trial Court.

REASONS FOR ALLOWING THE WRIT

1. Petitioner is entitled to review of his case by an

impartial tribunal not subject to elective office and

therefore the votes of an overwhelming minority

which had achieved racial superiority over petitioner’s

neighborhood by which he became the minority.

2. Having achieved 50 to 75% racial superiority the

blacks proceeded to harass petitioner to make him

unhappy in the area, force him to move and thereby

cause more blacks to move into the neighborhood so

they could take it over completely.

3. Petitioner, a lawyer and engineer accepted the blacks

into the area, admonished them from his lawn when

fertilizer was spread and reported their wayward con-

duct to the police, for this they harassed him and there-

fore they should not be allowed to profit by their

harassing conduct.

ARGUMENT

When a person has a bona fide belief that he is in

immediate danger of great bodily harm as a result

of the threatening conduct of a group of assailants,

that person is justified on the ground of self-defense

in assaulting the assailants.

A fair interpretation of the overwhelming testimony

in this case can lead to but one conclusion: that Chvosta

was not negligent by reason of his acting in self-defense.

The law of self-defense was duly summarized in

State v. Lovejoy, 48 Ohio Misc. 20, 21 (1976) as follows:

“* * * In the case of justifiable self-defense, the

injured party may repel force with force in defense of

his person, habitation or property, against one who

manifestly intendeth and endeavoreth, with violence

or surprise, to commit a known felony upon either. In

these cases he is not obliged to retreat, but may pursue

his adversary till he findeth himself out of danger, and

if, in a conflict between them, he happeneth to kill,

such killing is justifiable.” Foster’s Crown Cases,

Ch.3, Pg. 273 et seq. (1762)

“Where a person in the lawful pursuit of his busi-

ness, and without blame, is violently assaulted by one

who manifestly and maliciously intends and endeavors

to kill him, the person so assaulted, without retreating,

although it is 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.”

Erwin v. State (1876), 29 Ohio St. 187.

“* * * a true man, who is without fault, is not

obliged to fly from an assailant, who, by violence or

surprise, maliciously seeks to take his life or do him

enormous bodily harm.” Judge McIlvaine in Erwin v.

State, supra, at page 199; State v. Blanton (1960), 111

Ohio App. 111, 116.

An assault is justifiable on the ground of self-defense,

where the defendant in the careful and proper use of his

faculties, bona fide believes, and has reason to believe that

he is in imminent danger of great bodily harm, and that his

only means of escape icom that danger will be by exerting

such force as may even take the life of his assailant, al-

though in fact he is mistaken as to the existence or im-

minence of the danger. Marts v. State, 26 Ohio St. 162

(1875).

The test therefore relates to the actual state of mind

of the defendant and its bona fide or good faith, and

whether such state of mind is on reasonable grounds. The

question is not whether the actions were reasonable as to

the reasonable man, but whether the acts were reasonable

as to the defendant. The test does not relate to what

should be, but may not be, apparent to the defendant.

See State v. Reid, 3 Ohio App. 2d 215, 32 Ohio Op.2d 316,

320 (1965); State v. McLeod, 82 Ohio App. 155, 37 Ohio

Op. 522 (1948); State v. Clifton, 32 Ohio App. 2d 284, 61

Ohio Op.2d 348 (1972).

In relation to the defense of one’s property, where one

is assaulted in one’s home, he may use such means as are

necessary to repel the assailant from his home or to prevent

material injury to his home. State v. Peacock, 40 Ohio

St. 333 (1883).

On the night of June 21, 1976, Chvosta was in the

lawful pursuit of the quiet possession of his habitation,

as he had been for thirty-six (36) years. But built up

inside him was the anxiety caused by a changing neighbor-

10

hood with a rash of threats and harassment from neighbors

and area teenagers. In a frightened state, and after having

received a threat on his life. Chvosta took protection with

him in the form of a shotgun as he endeavored to finish

his yard work that evening. When the group of teenagers

came upon him with bricks and long wooden boards (all

capable of inflicting serious bodily injury), he backed into

a tree in his front yard to observe the assailants. By his

own words, he stated the gun accidently discharged as he

was about to fire a warning shot. No other evidence re-

futed his testimony. The weight of the evidence demon-

strates that Chvosta acted in self-defense. In the good

faith state of mind of Jerry Chvosta, he was afraid that

serious bodily harm would result to him.

It is hereby stated from the Ohio Constitution, Article

I, Bill of Rights: I §1 - Inalienable Rights:

“All men are by nature, free and independent and

have certain inalienable rights, among which are those

of enjoying and defending life and liberty, acquiring

possession and protecting property, and seeking and

obtaining happiness and safety.”

Also from the Ohio Constitution, I §10 - Trial for

Crimes, Witness:

“* * * and to have compulsory process to procure the

witnesses in his behal?... .”

This was denied Chvosta because of threats to friendly

neighbors, “If you are going to stick up for him you

better move.”

Also see the Ohio Constitution, I §19 - Private Prop-

erty Inviolate, Exception: (Eminent Domain).

Yet one month after the shooting incident, Chvosta’s

house was broken into while Chvosta was not at home.

11

When a person is engaged in an altercation with

more than one person, it is not the use of greater

force than necessary when he overcomes the force of .

their individual weapons in defending himself against

their combined weapons.

In State v. McLeod, 82 Ohio App. 155, 80 N.E.2d 699

(1948) it was stated that:

“In general, every man has the right to defend

himself and his property by the use of such force as

the circumstances require to protect himself against

such danger as he has good reason to apprehend, and

the measure of that force depends upon the nature

of that assault taken together with all other circum-

stances, such as the physical disparity between the

parties here, and it is only when one uses a greater

degree of force than is necessary under all the cir-

cumstances that it is not justifiable on the ground of

self-defense.

The law does not require of the defendant any

nice distinction as to the least amount of force neces-

sary, but whether the force used was excessive or not

is a question for the trier of the facts under proper

instruction,

Evidence of threats is admissible on the issue of

self-defense”.

In the case at bay the Court usurped the function of

the jury in removing from the jury’s consideration the

issue of self-defense,

In holding that Chvosta was negligent the Court took

away from the jury its function as the trier of the facts

above.

In taking away from the jury the consideration of

contributory negligence or assumption of risk, the Court

12

denied the consideration of the jury as to the measure

of force in the hands of the attacker juveniles and their

leader Sandra Williams, and the force of self-defense in

the hands of Chvosta.

CONCLUSION

In light of the due process clause and the equal pro-

testion clause of Amendment 14 of the United States Con-

stitution and Article I, Sections 1, 10 and 19 of the Ohio

Constitution, this is a prime case for review by the

Supreme Court of the United States.

A peaceful man lives in a peaceful neighborhood for

thirty-six (36) years. Then over the past ten or fifteen

years the area changes. Chvosta was looked to, as a senior

resident, to help keep the neighborhood peaceful by re-

porting suspicious and uncivil behavior of pseudohoodlums

to the police. These characters engaged in harassment of

Chvosta and death threats were made. Under these cir-

cumstances, it can only be said that Chvosta acted reason-

ably when he obtained his shotgun as protection while

intent of doing his front lawn work as he had done for

some thirty plus years.

Over the past years Chvosta reported to the police

of the activity requested by police to be reported. Yet

because of the changing neighborhood the police pre-

ferred to keep a low profile.

Now we have a classic case of reasonable conduct

whereby Chvosta

(a) informed the police of harassment and,

(b) retreated from the first confrontation while mow-

ing and,

13

(c) retreated again when confronted with bricks and

sticks when attempting to clean up his mowing

debris, and

(d) was forced to defend himself in the third con-

frontation, whereupon an accidental shooting oc-

curred,

It is obvious that they were the aggressors and should not

be rewarded with an excessive money judgment for their

act. It can be said that encouraging their children to

harass a man of means so that he can be sued beats sending

them out to rob banks on a 100 to 1 escalation. This profit

should be denied to them.

Petitioner Jerry F. Chvosta, respectfully requests that

this Honorable Court sustain his Petition for Writ of

Certiorari.

Respectfully submitted,

JERRY F’, CHVOSTA

4548 Warrensville Center Road

North Randall, Ohio 44128

Tel. (216) 475-7463

Petitioner

Al

APPENDIX

JUDGMENT ENTRY OF THE COURT OF

COMMON PLEAS

(Filed October 23, 1978)

Case No. 962,621

COURT OF COMMON PLEAS

CuYAHOGA CouNTy, OHIO

ALISON PIERRE, et al.,

Plaintiff,

VS.

JERRY F. CHVOSTA,

Defendant.

Jury verdict for plaintiff, defendants costs, $75,000.00

actual damages plus $75,000.00 punitive.

/s/ F. SWEENEY

Judge

A2

JOURNAL ENTRY AND OPINION OF THE COURT

OF APPEALS OF CUYAHOGA COUNTY, OHIO

(Dated March 6, 1980)

No. 40157

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

County oF CUYAHOGA

ALISON PIERRE, et al.,

Appellees

vs .

JERRY CHVOSTA,

Appellant

JOURNAL ENTRY AND OPINION

PARRINO, J.:

This cause came on to be heard upon the pleadings

and the transcript of the evidence and the record in the

Common Pleas Court, and was argued by counsel for

the parties; and upon consideration, the court finds no

error prejudicial to the appellant and therefore the judg-

ment of the Common Pleas Court is affirmed. . Each

assignment of error was reviewed and upon review the

following disposition made:

On November 9, 1976, appellee, Alison Pierre, by

and through her next friend and guardian, instituted an

action for assault and battery and negligeiice in the Cuya-

hoga County Common Pleas Court by filing a complaint

against appellant, Jerry Chvosta. The complaint alleged

that at approximately 9:00 p.m. on June 21, 1976, appellee

was walking along the sidewalk near appellant’s property

A3

at 16721 Lomond Boulevard in Shaker Heights when

appellant intentionally fired a shotgun blast at her, striking

her in the chest, neck, face, and shoulder, The complaint

further alleged that appellant acted in a reckless and

negligent manner, and that as a result, appellee sustained

permanent and disfiguring injuries, suffered pain, and

incurred expenses for medical care. Appellee sought com-

pensatory damages in the amount of $150,000 and punitive

damages in the amount of $500,000.

Appellant filed an answer in which he admitted that

at approximately 9:00 p.m. on June 21, 1976, appellee

was in close proximity to his property and that a shotgun

was fired. Appellant denied the remaining allegations

contained in appellee’s complaint. In addition, appellant

set forth the affirmative defenses of self-defense and

contributory negligence.

Trial commenced before a jury on October 17, 1978.

After the jury was impaneled, appellee made a motion

in limine, requesting the court to prohibit appellant from

referring during opening argument to a statement alleg-

edly made by a teenage girl to appellant on June 21, 1976,

to the effect that the next time they met, she was going

to have a gun and there would be a shoot-out. The court

granted the motion over the objection of appellant.

At trial, the evidence established the following: Dur-

ing the years 1972-1976, appellant, who lived at 16721

Lomond Boulevard in Shaker Heights, experienced harass-

ment from area teenagers. At approximately 9:00 p.m.

on June 21, 1976, appellant was cutting his front lawn

when four neighborhood teenage girls, Pamela Solomon,

Sheila Solomon, Sandra Williams, and Monica Hardy,

walked by on their way to Monica Hardy’s house at

16801 Lomond Boulevard. Appellant and the girls be-

came involved in an argument.

A4

Witnesses gave conflicting accounts of the circum-

stances surrounding the argument. Monica Hardy testi-

fied that appellant approached the girls and accused them

of walking on his lawn. She further related that the

girls denied the accusation and that the argument ensued.

Appellant testified that the girls stopped in front of his

house and that Sandra Williams shouted, “We can walk

on your lawn all we want and you can’t do anything

about it.” Appellant added that he moved closer to the

girls and observed that they were holding bricks and

sticks. Appellant further stated that Sandra Williams

repeated her previous comment, brandished a brick within

a few inches of his face, and declared, “If you try to

stop us, you’re going to get hurt.”

The argument ended when Monica Hardy’s aunt sum-

moned Monica to come home. Monica Hardy’s house was

located two houses east of appellant’s residence, on the

same side of the street. The remaining three girls headed

west on Lomond Boulevard toward Lindholm Road. Ap-

pellant retreated to his back yard.

Appellant entered his garage and obtained a shotgun

which he promptly loaded. With the gun in hand, appel-

lant returned to his front yard and hid underneath a

large pine tree.

In the meantime, Pamela Solomon, Sheila Solomon,

and Sandra Williams encountered three friends, Paula

Cox, Angela Gray, and appellee, Alison Pierre, at the

corner of Lomond Boulevard and Lindholm Road. The

girls engaged in conversation, and Sheila Solomon and

Sandra Williams informed the others of the quarrel with

appellant. According to the testimony of Paula Cox,

Angela Gray, and appellee, the girls decided to go to a

nearby Baskin Robbins Ice Cream Store and to pick up

Monica Hardy on the way.

A5

With the exception of Pamela Solomon, who stayed

at the corner of Lomond Boulevard and Lindholm Road,

the girls proceeded east on Lomond Boulevard in the

direction of Monica Hardy’s house, walking on the side

of the street on which Monica Hardy’s house was located.

Sandra Williams carried a brick and at least two girls

carried sticks. Paula Cox testified that the items were

for defense purposes in the event of a confrontation with

appellant.

When the girls were approximately seventy feet from

the pine tree situated on appellant’s front lawn, a shot

rang out from the vicinity of the tree. Shotgun pellets

struck appellee, wounding her.

Shortly thereafter, several Shaker Heights police offi-

cers arrived at the scene and arrested appellant, who

was still underneath the pine tree. Appellant told one

of the officers, “They came at me with bricks and rocks

and I had to get even with them.”

At trial, appellant maintained that his shotgun dis-

charged accidentally. He testified as follows:

THE WITNESS: I had to change my plan of

putting the gun down and continuing my yardwork,

and I then took cover by backing into the pine tree

to observe what was going on, because I noticed that

the girls were starting to come around the corner

at Lindholm towards my direction.

Q. What’s the next thing you remember, Mr.

Chvosta?

A. I remember seeing Sandra Williams carrying

something to her busom like this, and recalling the

previous threats and seeing that the bricks and sticks

and I wanted to fire a warning shot into the neigh-

bor’s lawn to let them know that I was armed be-

A6

cause I didn’t want to hurt them. So, as I swung

the gun around, it discharged accidentally.

Q. What happened then?

A. I realized what had happened and I was

shocked at the fact that the gun had gone off and so,

I realized that the only thing I could do is sit there

and wait until or stand and wait until the police

came, which I did. (Tr. 287.)

At the close of appellee’s evidence, appellant moved

for a directed verdict as to the issue of proximate cause.

The court overruled the motion. !

At the conclusion of appellant’s opening statement and

again at the close of all the evidence, appellee requested

the court to strike the affirmative defense of self-defense

and to direct a verdict for her as to the issue of liability.

At the close of all the evidence, the court granted both

requests. In addition, the court earlier withdrew the af-

firmative defense of contributory negligence from the con-

sideration of the jury.

In its charge to the jury, the court stated as follows:

The Court has directed a verdict on the matter of

law that the defendant was negligent and his neg-

ligence was the proximate cause of the injuries com-

plained of.

The Court further finds that as a matter of law,

the defendant assaulted the plaintiff and that said

assault was also the direct and proximate cause of

the injuries complained of by the plaintiff. Your ver-

dict must be for the plaintiff and the Court instructs

you to award the plaintiff actual damages that she

is entitled to receive from all of the evidence which

will fully, fairly and wholly compensate for the in-

juries she received. (Tr. 376.)

A7

The jury awarded appellee compensatory damages in

the amount of $75,000 and punitive damages in like

amount.

Appellant timely filed a notice of appeal. Twelve

errors have been assigned:

I,

IT.

VI.

VII.

VIII.

PLAINTIFF’°S ATTORNEY WENT BEYOND

THE BOUNDS OF CLOSING ARGUMENT IN

ARGUING DEFENDANT'S OATH OF OFFICE.

THE COURT ERRED IN ALLOWING PLAIN-

TIFFS ATTORNEY TO GO BEYOND. THE

EVIDENCE IN HIS CLOSING ARGUMENT.

THE COURT ERRED IN SUSTAINING THE

OBJECTION TO THE TESTIMONY OF LT.

KOHANSKI [sic] THE INVESTIGATING OF-

FICER.

THE COURT ERRED IN REASONING THAT

SELF-DEFENSE AND ACCIDENT CANNOT

BE CONCURRENT.

THE COURT ERRED IN ORDERING DEFEN-

DANT ON PLAINTIFF’S MOTION IN LIMINE

TO REFRAIN FROM TESTIFYING TO SAN-

DRA WILLIAMS THREAT.

THE COURT ERRED IN NOT GRANTING

DEFENDANT’S MOTION FOR A DIRECTED

VERDICT.

THE COURT ERRED IN WITHDRAWING

FROM THE JURY THE QUESTION OF CON-

TRIBUTORY NEGLIGENCE.

THE COURT ERRED IN WITHDRAWING

FROM THE JURY, DEFENDANT’S FIRST AF-

FIRMATIVE DEFENSE OF SELF-DEFENSE.

A8

IX. THE COURT ERRED THAT THE DEFEN-

DANT ACTED NEGLIGENTLY AND THAT

HIS NEGLIGENCE WAS THE PROXIMATE

CAUSE OF INJURY TO PLAINTIFF.

X. THE COURT ERRED IN ITS CHARGE TO

THE JURY THAT DEFENDANT ASSAULTED

PLAINTIFF AND SUCH ASSAULT WAS THE

PROXIMATE CAUSE OF THE PLAINTIFF'S

INJURIES.

XI. THE COURT ERRED IN FINDING FOR THE

PLAINTIFF AND SUBMITTING TO THE

JURY THE AMOUNT OF DAMAGES ONLY.

XII. THE COURT ERRED IN BELIEVING THE

FABRICATED AND PERJURED TESTIMONY

OF PLAINTIFF AND HER WITNESSES.

Since the first and second assignments of error are

concerned with the closing argument made by appellee’s

attorney, we are addressing them together.

It is a basic proposition of law that an appellate

court will not consider a claim of error where the alleged

error was not brought to the attention of the trial court

by a timely objection. Stores Realty Co. v. Cleveland

(1975), 41 Ohio St. 2d 41.

In the instant case, appellant failed to object to the

statements made by appellee’s attorney during closing

argument. Therefore, this Court will not consider the

first and second assignments of error on the merits.

Regarding the third assignment of error, it is well

settled that when a trial court sustains an objection to

a question, a statement must be made or proffered as

to what the expected answer would be in order that

an appellate court can determine whether or not the

Ad

action of the trial court is prejudicial, and in the absence

of a proffer, the exclusion of evidence may not be assigned

as error, Pokorny v. Local 310 (1973), 35 Ohio App. 2d

178, rev’d on other grounds, 38 Ohio St. 2d 177.

In the case at bar, appellant posed the following

question to Detective Tom Kohansek on cross-examina-

tion: ‘And you learned from Sandra Williams that she

had an object in her hand at the time of the shooting,

did you not?” Appellee objected to the question on

hearsay grounds, and the court sustained the objection.

Appellant did not proffer the expected answer into the

record. Thus, appellant may not assign as error the trial

court’s act of sustaining the objection to the question

asked of Detective Kohansek.

Accordingly, the third assignment of error is not well

taken. |

With respect to the fourth assignment of error, the

Ohio Supreme Court has held that self-defense and acci-

dent are inconsistent defenses. State v. Champion (1924),

109 Ohio St. 281.

In the present case, the following colloquy between

the court and appellant’s attorney took place at the close

of appellee’s case:

MR. WEINBERGER: I think it’s premature to

direct a verdict on the issue of self-defense until he

testifies in our case in chief.

THE COURT: But you just said your man was

going to testify, and he is going to say it was an

accident.

MR. WEINBERGER: Well—

THE COURT: Don’t you know what he is going

to say?

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MR. WEINBERGER: I am not exactly sure,

Judge.

THE COURT: He certainly said accident on

cross.

MR. WEINBERGER: Yes, he did.

THE COURT: Self-defense is confession of a

[sic] avoidance, yes, I shot the man and I intended

to shoot but I was fearful of my own life. He said,

he didn’t shoot the gun, that it went off. I assume,

he said it went off. The only way it can go off,

I assume, is by accident. So himself on cross had

already said, he did not shoot the gun that it went

off accidentally.

Is he going to say something different now on

direct, no, he didn’t shoot accidentally but he shot

in self-defense?

MR. WEINBERGER: Judge, I think that, I guess,

I am asking the Court to hold ruling on this in

abeyance until the Court hears the defendant testify

again mainly because it’s my feeling that the defen-

dant may well testify that he went and got the shot-

gun, that he felt that he was acting in self-defense

and when he backed into the tree, he felt he was

acting in self-defense but that the gun accidentally

discharged before any further actions could be taken.

THE COURT: I assume it’s going to be self-

defense and accident?

MR. WEINBERGER: Yes, Judge.

THE COURT: Which I think is impossible, it’s

either got to be one or the other.

I will hold in abeyance any ruling on a motion

as far as direction and/or eliminating any affirmative

All

defenses in consideration of the jury, and rule on

those after a'l of the evidence is in. (Tr. 262-264.)

Under the rationale of State v. Champion, supra, the

trial court did not err in concluding that the defenses

of self-defense and accident are mutually exclusive.

The fourth assignment of error is without merit.

Turning to the fifth assignment of error, a motion

in limine is defined as follows:

[A] precautionary request, directed to the inherent

discretion of the trial judge, to limit the examination

of witnesses by opposing counsel in a specified area

until its admissibility is determined by the court out-

side the presence of the jury. State v, Spahr (1976),

47 Ohio App. 2d 221 (Syllabus { 1).

In the present case, the court granted appellee’s mo-

tion in limine and ordered appellant to avoid reference

in his opening argument to a certain statement allegedly

made by a teenage girl to appellant on June 21, 1976.

Neither appellee nor appellant requested a subsequent

ruling on the admissibility of the statement. In view

of the parties’, especially appeilant’s, failure to request

a further ruling and in view of the legal principle that

opening statements are not evidence, the granting of the

motion in limine, if error at all, constituted harmless

error.

The fifth assignment of error is overruled.

Focusing on the sixth assignment of error, it is well

established that no error may be predicated on a trial

court’s denial of a defendant’s motion for a directed ver-

dict made at the close of the plaintiff’s evidence where

the record reflects that the defendant presented evidence

on his own behalf and failed to renew the motion for

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a directed verdict at the close of all the evidence. Ferrebee

v. Boggs, (1970), 24 Ohio App. 2d 18.

In the instant case, appellant moved for a directed

verdict at the conclusion of his opponent’s evidence. The

trial court overruled the motion, and appellant proceeded

to introduce evidence on his behalf. Appellant did not

renew his motion at the close of all the evidence. There-

fore, appellant may not assign as error the trial court’s

denial of his motion for a directed verdict.

The sixth assignment of error is not well taken.

Concerning the seventh assignment of error, it is

well settled that an individual cannot recover for injuries

occasioned by negligence, where he has himself also been

guilty of negligence which contributed to the result.

Bellefontaine & Indiana Railway Co. v. Snyder (1868),

18 Ohio St. 399.

In the case at bar, the record is devoid of evidence

to show that appellee was guilty of contributory negli-

gence on the evening of June 21, 1976. Accordingly, the

trial court did not err in withdrawing the affirmative

defense of contributory negligence from the consideration

of the jury.

The seventh assignment of error is without merit.

With respect to the eighth assignment of error, the

affirmative defense of self-defense has no application in

a case where the record is devoid of evidence to demon-

strate that the defendant, out of concern for his safety,

intended to shoot the plaintiff, or that the plaintiff com-

mitted an overt act by which the defendant could rea-

sonably believe that he was in imminent danger of great

bodily harm or death. State v. Rogers (1975), 43 Ohio

St. 2d 28, cert. denied, 423 U.S. 1061. In the instant case,

the record does not contain any evidence to show that

Al3

appellant intended to shoot appellee. Appellant himself

testified that he did not want to hurt appellee and her

friends, that he wanted to fire a warning shot into a

neighbor’s lawn in order to let the girls know that he

was armed, and that his shotgun discharged accidentally.

Furthermore, there is no evidence tending to show that

appellant could have reasonably believed that he was in

imminent danger of great bodily harm or death, as it

is undisputed that appellant hid underneath a pine tree

and was not visible to the approaching girls and that

the girls were seventy feet from the pine tree at the

time the shotgun was fired. Since the evidence does

not support a claim of self-defense, the trial court did

not err in withdrawing the defense from the consideration

of the jury.

The eighth assignment of error is overruled.

Since the remaining assignments of error are inter-

related, we are considering them together.

Civil Rule 50(A) (4) provides:

When a motion for a directed verdict has been

properly made, and the trial court, after construing

the evidence most strongly in favor of the party

against whom the motion is directed, finds that upon

any determinative issue reasonable miuds could come

to but que conclusion upon the evidence submitted

and that conclusion is adverse to such party, the

court shall sustain the motion and direct a verdict

for the moving party as to that issue.

We have carefully reviewed the record in the instant

case and conclude that the trial court properly directed

a verdict for appellee as to the issue of liability. The

record conclusively demonstrates that appellant assaulted

appellee and was guilty of negligence and that the assault

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and negligence were the proximate cause of appellee’s

injuries. The only issue remaining for resolution by the

jury was that of damages. The court instructed the jury

accordingly.

The ninth, tenth, eleventh, and twelfth assignments

of error are not well taken.

Accordingly, the judgment is affirmed.

It is ordered that appellee recover of appellant her

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.

A certified copy of this entry shall constitute the

mandate pursuant to Rule 27 of the Rules of Appellate

Procedure. Exceptions.

/s/ THomas J. PARRINO

Judge

Patton, P.J.,

CorRIGAN, J., concur.

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JUDGMENT ENTRIES OF THE

OHIO SUPREME COURT

(Dated May 29, 1980)

No. 80-652

THE SUPREME COURT OF OHIO

THE STATE oF OnIo, City or COLUMBUS

ALISON PIERRE, et al.,

Appellees,

VS.

JERRY F. CHVOSTA,

Appellant.

APPEAL FROM THE CourRT OF APPEALS FOR

CuyYAHOGA COUNTY

This cause, here on appeal as of right from the Court

of Appeals for Cuyahoga County, was considered in the

manner prescribed by law, and, no motion to dismiss such

appeal having been filed, the Court sua sponte dismisses

the Appeal for the reason that no substantial constitutional

question exists herein.

It is further ordered by the Court that a copy of this

entry be certified to the Clerk of the Court of Appeals

for Cuyahoga County for Entry.

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No. 80-652

THE SUPREME COURT OF OHIO

THE STATE OF OnI0, C1iTy or COLUMBUS

ALISON PIERRE, et al.,

Appellees,

vs.

JERRY F. CHVOSTA,

Appellant.

Motion for an order directing the Court of Appeals for

Cuyahoga County to certify its record.

It is ordered by the Court that this motion is over-

ruled.