court of appeals - supreme court of...
TRANSCRIPT
IN THE SUPREME COURT OF OHIO
THE STATE OF OHIO,
Appellee,
v.
JOSEPH T. SHINE-JOHNSON,
Appellant.
On Appeal from the Franklin County
Court of Appeals, Tenth Appellate
District
Court of Appeals Case No. 17AP-194
MEMORANDUM IN SUPPORT OF JURISDICTION
OF APPELLANT JOSEPH T. SHINE-JOHNSON
William T. Cramer, Reg. No. 0068611
470 Olde Worthington Road, Suite 200
Westerville, Ohio 43082
ph 614-353-5593
fax 614-453-8283
COUNSEL FOR APPELLANT JOSEPH T. SHINE-JOHNSON
Ron O’Brien, Reg. No. 0017245
Franklin County Prosecuting Attorney
Michael P. Walton, Reg. No. 0087265
Assistant Prosecuting Attorney
373 South High Street, 13th Floor
Columbus, Ohio 43215
ph 614-525-3555
COUNSEL FOR APPELLEE THE STATE OF OHIO
Supreme Court of Ohio Clerk of Court - Filed February 04, 2019 - Case No. 2019-0174
TABLE OF CONTENTS
Page
EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL
INTEREST ..................................................................................................................................... 2
STATEMENT OF THE CASE AND FACTS ............................................................................. 3
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW .................................................. 10
Proposition of Law: In order to claim self-defense, a defendant need not retreat from
or avoid a danger that is merely speculative; instead, there must be an imminent
danger of death or great bodily harm before a defendant has any duty to retreat or
avoid the danger. ................................................................................................................... 10
CONCLUSION ........................................................................................................................... 14
EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL
INTEREST
This case raises an issue of great public and general interest regarding the
appropriate legal boundaries of the right of self-defense. In this case, the prosecution
argued, and the Tenth District Court of Appeals agreed, that appellant had a duty to
avoid an argument with his father based on the speculative danger that the argument
may turn physical. By requiring persons to avoid the mere speculative danger arising
from a verbal argument, the Court of Appeals has eliminated the right to self-defense
for anyone who engages in an argument. And this effectively eliminates the first
aggressor rule—it no longer matters who started the fight, but only who engaged in the
argument.
This case raises even greater concerns in light of recent expansions of gun rights
and concealed carry permits. More Ohioans are carrying weapons on a regular basis.
Arguments that may have ended in a minor scuffle are more likely to end in gunfire. If
this broad interpretation of the duty to avoid danger is allowed to persist, Ohioans will
learn that their concealed carry permits are useless if they make the mistake of engaging
in an argument, regardless of whether they were the first aggressor.
A case like this is likely to renew momentum in favor of “stand your ground”
legislation, which would eliminate any duty to retreat or avoid danger before shooting
someone in public. “Stand your ground” language was originally included in 2018 H.B.
228, effective March 28, 2019, but was removed just before passage in hopes of avoiding
a governor’s veto.
3
The next time an argument over money or politics or sports becomes physical,
prosecutors will be able to cite this case to argue that the defendants lost their right to
self-defense because they participated in the argument rather than walking away.
Ohioans will be forced to avoid any confrontation on the off chance that it may turn
physical. As noted by Judge Tyack in dissent, this is contrary to common sense and the
law of self-defense.
STATEMENT OF THE CASE AND FACTS
In September 2015, appellant was indicted for aggravated murder (R.C. 2903.01),
murder (R.C. 2903.02), and tampering with evidence (R.C. 2921.12(A)) arising from the
shooting death of his father. All counts included firearm specifications. In February
2017, the matter proceeded to trial before a jury. Appellant argued self-defense,
presented evidence that his father was the first aggressor, and testified in his own
behalf.
The evidence presented at trial indicated the following: As of the day of the
shooting, September 10, 2015, appellant lived in a house with his father, his father’s
girlfriend Maureen, their adult daughter Alexis, and Maureen’s son from another
relationship. Appellant lived in the basement rent free, while the others utilized the
bedrooms.
Everyone in the house shared two cars. Appellant regularly drove Maureen and
Alexis to work before going to work himself, and then picked them up after work.
4
Earlier that summer, appellant paid money to get one car released from impound and
to fix a car. Maureen agreed to pay appellant back, but never did.
By the day of the shooting, there was some tension in the house. Appellant
wanted to buy a car, but needed the money that Maureen owed him. Maureen refused
to repay him, telling him that she would count it toward room and board. Appellant
also noticed items missing from his basement room and had questioned everyone in the
house about it. Maureen felt that he was accusing them of stealing from him. On the
day of the shooting, Maureen tried to go down to the basement to get something and
found twine and wires strung across the stairway in a manner that she described as a
booby trap. Also on the day of the shooting, appellant posted on his Facebook page
“just don’t play with me love or me money, that’s when it becomes tombstone” and
posted a meme indicating “watch who you’re being loyal to, don’t fuck around and
make an ass out of yourself doing all the right shit for the wrong motherfucker.” The
family saw these posts.
On the day of the shooting, appellant had gotten a ride to work from a co-
worker. After work, appellant went over to the co-worker’s house to see her new
internet video device and watch a movie with her and her fiance. Appellant’s co-worker
testified that appellant seemed happy until he got a text late in the movie. Appellant
testified that he received a text from Maureen that was hostile in tone and told him not
to talk to her or her children again. He subsequently received a text from his father
telling him to get his ass home. Appellant’s co-worker testified that his mood dropped
5
immediately and he seemed sad. Appellant told his co-worker that she needed to give
him a ride home. During the ride home, appellant told the co-worker something to the
effect that this would not end well. When they got to appellant’s house, the co-worker
parked in the driveway and agreed to wait for appellant.
When appellant got home, the others were upstairs getting ready for bed.
Maureen testified that she heard appellant and his father arguing, and came downstairs
just in time to see appellant’s father trying to close the back door. Maureen claimed that
appellant pushed the door open. Appellant’s father stepped back and said “you are just
going to shoot your father.” Maureen heard appellant say “yep” and then there was a
gunshot and appellant’s father fell to the ground. Maureen claimed she ran over and
shut the door just as a second shot blew out the door window.
Alexis testified that she heard banging and shouting between appellant and his
father. Alexis stayed upstairs to keep her brother and their dogs calm until she heard a
gunshot. Alexis ran downstairs after the gunshot and found her father on the floor
bleeding from a wound to his torso. Alexis seemed to indicate that everyone, including
Maureen, was upstairs when they heard the first gunshot.
Appellant’s co-worker heard the back door open and looked up from a book she
was reading just in time to see appellant walk out into the back yard a few feet, then
turn and fire two blasts from a shotgun toward the house. Appellant then came over to
her car, said something about shooting someone, and ran off with the shotgun.
6
When the police arrived, they found appellant’s father badly injured from a
shotgun wound to his abdomen, from which he eventually died. The police also found a
20-gauge shotgun lying a few feet away from him. The 20-gauge was older and rusty,
and was inoperable due to a missing firing pin; however, it was loaded with a newer,
live shell. Maureen testified that the shotgun was a family heirloom from appellant’s
grandfather, everyone knew it was not operable, and appellant’s father had removed it
from the closet that day just to reminisce about appellant’s grandfather. Another family
member testified that Maureen and Alexis both told her that appellant’s father had the
shotgun with him all day waiting for appellant to come home.
There was also evidence that appellant’s father had been using marijuana and
cocaine that day, and that he became violent when he used drugs.
Appellant testified that when he entered the house, his father yelled at him.
Appellant claimed that his father swung a telescope at his head. Appellant’s father
opened a switch blade knife and threatened appellant. Appellant’s father finally
grabbed the 20-gauge shotgun, pointed it at appellant’s chest and head, and threatened
him. Appellant wanted to leave, but his father backed him toward the basement steps,
so appellant ran down into the basement. Appellant had a 12-gauge shotgun in the
basement and retrieved it.
Appellant’s father did not come down, so appellant went upstairs. Appellant
tried to run to the backdoor and escape, but his father caught up to him, hit him in the
back of the head, and knocked him down the back steps. Appellant stumbled out into
7
the back yard and turned around to see his father aiming the 20-gauge shotgun at him.
Appellant testified that he thought the 20-gauge was operable and he had seen his
father threaten other people with it. Appellant testified that he shot his father in self-
defense.
After the shooting, appellant ran to his mother’s house and left the 12-gauge
shotgun in the basement. Appellant told them what had happened and left on foot.
Appellant’s step-father retrieved the shotgun, put it in the yard, and called the police. A
couple of hours later, appellant turned himself in to the police who were waiting at his
mother’s house.
On cross-examination, the prosecutor argued that appellant violated his duty to
avoid danger by going home in response to his father’s text.
Q. Right. All right. So will you now at least concede that you know there’s an
issue on Grasmere with your dad and your family?
A. Well at that point in time I wasn’t sure exactly what was going on. But it
caused for me to worry when I got the text message saying, bring your ass here.
Q. A duty to avoid trouble. You know you’re walking in to an fight, don’t you?
MR. BENTON: Objection.
THE WITNESS: No, I don’t.
THE COURT: Overruled.
THE WITNESS: No, I don’t. [Tr 981-982]
The prosecutor questioned appellant about other options, such as going to his mother’s
house:
Q. You could go up there and say, mom, dad is high again. I don’t know what’s
going on. I’m crashing here tonight. That would have been absolutely fine,
wouldn’t it?
A. But at that point in time I’m not sure as of what is going on. So I would not
have no idea what is going on until I actually get into the house.
Q. A duty to avoid.
8
MR. BENSON: Objection.
THE COURT: Well, sustained as to the last comment. Is there a question?
Q. You know there’s a problem and you don’t try to avoid that problem? [Tr 984-
985]
The prosecutor continued in this vein for some time, questioning appellant as to why he
went home rather than going somewhere else.
During closing arguments, the prosecution again returned to the theme that
appellant failed to avoid the danger: “He had an opportunity to not even go over there
at all. He wasn’t there when this happened. He was out enjoying the evening with his
friends. He didn’t have to show up. He came to the house.” [Tr 1136] During rebuttal,
the prosecution returned to the avoidance theme:
A duty to avoid the danger. You’re not going to hear [the judge] saying, the only
time you can consider whether he could have avoided this was at that moment
he pulled that trigger. That is not the instruction on self-defense.
I mean, how does that even make sense? Doesn’t to say you have a duty to avoid
the danger imply it is proactive, I’m not going to go over there and start
something? I mean, just by the words alone, “avoid.” It’s just that basic common
sense rule that as a society we say, you don’t start something. There won’t be
nothing. You don’t get to go over, knowing you’re walking into an fight, find a
fight, kill somebody and say, oh, my gosh, I had no choice. You had a duty to
avoid the problem. And that implies, if there’s evidence that you knew there was
a problem, you don’t go over there. [Tr 1173-1174]
It is not just the moment of him walking out of that house and turning around
and killing his father where he has the duty to avoid. He has the duty to avoid
the situation entirely. [Tr 1183]
The jury was instructed on self-defense pursuant to the Ohio Jury Instructions:
“To establish self-defense, the defendant must prove by a preponderance of the
evidence the following: One, the defendant was not at fault in creating the situation
9
giving rise to the affray; two, the defendant had an honest belief that he was in
imminent danger of death or great bodily harm and that his only means of escape from
such danger was in the use of such force; and, three, the defendant did not violate any
duty to retreat or avoid the danger.” [Tr 1210] The jury was also instructed that “a
person has a duty to retreat unless he is in his residence or vehicle,” and defined
residence to include the dwelling structure and attached porch. [Tr 1213]
Following deliberations, the jury returned a verdict of not guilty of aggravated
murder, but guilty of murder and tampering with evidence. Appellant was sentenced to
an aggregate term of nineteen years to life and timely appealed.
On appeal, appellant argued in part that the prosecutor committed misconduct
by misstating the law regarding the duty to avoid danger. A majority of the Tenth
District Court of Appeals rejected that argument, but Judge Tyack dissented, noting: “A
person who is summoned home by a parent has a right to go home, even if the person
summoned fears that bad things could happen once the person arrives home. … [¶] …
The argument that [appellant] was more likely to be culpable because he did what his
father demanded and went home conflicts with common sense and Ohio law.”
Appellant filed an application for reconsideration and an application to reopen the
appeal, but both were unsuccessful.
10
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW
Proposition of Law: In order to claim self-defense, a defendant need not retreat
from or avoid a danger that is merely speculative; instead, there must be an
imminent danger of death or great bodily harm before a defendant has any
duty to retreat or avoid the danger.
The Tenth District Court of Appeals erred in requiring appellant to retreat from
or avoid a danger that was merely speculative. The right of self-defense has been
consistently defined to include three elements: “(1) the slayer was not at fault in
creating the situation giving rise to the affray; (2) the slayer has a bona fide belief that he
was in imminent danger of death or great bodily harm and that his only means of
escape from such danger was in the use of such force; and (3) the slayer must not have
violated any duty to retreat or avoid the danger.” State v. Robbins, 58 Ohio St.2d 74, 388
N.E.2d 755 (1979), paragraph two of the syllabus, citing State v. Melchior, 56 Ohio St.2d
15, 20-21, 381 N.E.2d 195 (1978). Based on the language used, “the” danger referred to in
the third element is clearly the imminent danger of death or great bodily harm noted in
the second element, not some speculative potential danger. Notably, the prosecutor
tried to avoid the clear meaning of the word danger by using other words, referring to a
duty to avoid a “problem,” “situation,” or “trouble.”
As this Court has explained, the duty to retreat/avoid danger “derives from the
common law rule that the right to kill in self-defense may be exercised only if the
person assaulted attempted to ‘retreat to the wall’ whenever possible.” State v. Thomas,
77 Ohio St.3d 323, 326-327, 1997-Ohio-269, 673 N.E.2d 1339. Thus, the duty to
11
retreat/avoid danger is inherently reactive—a person need only attempt to “retreat to
the wall” in reaction to being assaulted.
In finding that the duty to avoid danger can be stretched to include even
speculative dangers, the Court of Appeals relied on its prior decision in State v. Ellis, 10th
Dist. No. 11AP-939, 2012-Ohio-3586. But Ellis is easily distinguishable. In Ellis, the
victim’s sister had previously threatened the defendant with violence, causing the
defendant to get a firearm. Nonetheless, the defendant chose to enter a store after seeing
that the victim and his sister were in the store. Inside the store there was a predictable
confrontation, threats were made, and the defendant indicated he had a gun. When the
victim left the store, the defendant followed the victim and they continued arguing in
front of the store. The defendant then followed the victim around to the back of the
store where a fight erupted, during which the defendant shot the victim. The Ellis court
concluded on these facts that the defendant was either at fault for creating the situation
giving rise to the affray or failed to avoid the danger.
The problem in Ellis was not that the defendant failed to avoid a speculative
danger by declining to enter the store when he saw that the victim’s sister was there, the
problem was that the defendant was at fault for causing the affray—the defendant
brought a weapon, sought a confrontation inside the store, and pursued the victim
outside the store. Nothing like that occurred in this case. Appellant did not bring a
weapon to the confrontation, did not seek out the confrontation with his father, and did
not pursue his father to prolong the confrontation.
12
Ellis cited several cases, all of which involved concrete threats of violence or a
recent history of violence between the parties. In State v. Hall, 10th Dist. No. 04AP-17,
2005-Ohio-335, there was a gang fight inside a strip club. Afterwards, the defendant
pursued the victim across the parking lot and shot him from behind several times.
In State v. Johnson, 8th Dist. No. 81814, 2003-Ohio-4180, the defendant and the
victim exchanged threats, and the victim pursued the defendant in a car. The defendant
eventually stopped his car, jumped out, and assaulted the victim with a pool cue before
the victim was able to exit his car.
In State v. Matthews, 3rd Dist. No. 8-02-19, 2002-Ohio-6619, the defendant’s
girlfriend went upstairs to complain to the victim about loud noise. When the
defendant heard the victim yelling at his girlfriend, he went upstairs with a weapon to
confront the victim and a fight broke out.
In State v. Nichols, 4th Dist. No. 01CA2775, 2002-Ohio-415, the defendant and the
victim got into an altercation inside a bar. Sometime later when the victim left the bar,
the defendant followed the victim outside to his car, where another fight occurred.
In State v. Sudberry, 12th Dist. No. CA2000-11-218, 2001WL1402779, the
defendant’s abusive uncle attacked him when they were evicted from a house and the
defendant had to fight him off with scissors. When the defendant later returned to get
some of his things, his uncle was still there and grabbed him and the defendant beat
him to death with a shovel.
13
In State v. Cole, 5th Dist. No. 98CAC01001, 1998WL429712, the defendant’s brother
got into an argument with his girlfriend, who was with another man. During the
argument, the girlfriend struck the defendant’s brother. The defendant then walked
over and assaulted the man that was with his brother’s girlfriend.
In State v. Bryant, 12th Dist. No. CA89-09-019, 1990WL111132, the defendant told
the victim to leave his sons alone and threatened the victim with a gun. When the
victim later taunted the defendant, the defendant followed the victim, waited for the
victim to drive past, and engaged in a shoot-out with the victim.
In State v. Kyle, 8th Dist. No. 55353, 1989WL50005, the defendant followed the
victim, called the victim names, and then ran up to him and pushed him. During the
ensuing melee, the defendant stabbed the victim.
In State v. Moore, 10th Dist. No. 87AP-166, 1987WL27803, the defendant was
assaulting his girlfriend outside a bar. The victim saw what was happening and tried to
intervene by shouting and putting up his fists. The defendant responded by stabbing
the victim to death.
In most of these cases, as in Ellis, the problem was not that the defendant failed
to retreat or avoid an imminent danger of death; instead, the problem was that the
defendant failed on the first element of self-defense by causing the affray. The
defendant was either literally the first aggressor, or the defendant brought a weapon
and sought a confrontation after a history of threats. Once again, that is simply not what
14
occurred in this case, where appellant did not bring a weapon to the confrontation, and
did not seek out or pursue the confrontation.
CONCLUSION
For the reasons discussed above, this case involves matters of public and great
general interest. The appellant requests that this Court accept jurisdiction in this case
for the purpose of clarifying the law of self-defense.
Respectfully submitted,
/s/ William Cramer
___________________________________
William T. Cramer
COUNSEL FOR APPELLANT,
JOSEPH T. SHINE-JOHNSON
CERTIFICATE OF SERVICE
I certify that on February 4, 2019, a copy of this MEMORANDUM IN SUPPORT
OF JURISDICTION was sent by email to Michael P. Walton, counsel for appellee.
/s/ William Cramer
___________________________________
William T. Cramer
COUNSEL FOR APPELLANT,
JOSEPH T. SHINE-JOHNSON
