IN THE SUPREME COURT OF OHIO2006

STATE OF OHIO,

-vs-

Plaintiff-Appellee,

KEVIN MADDEN,

Defendant-Appellant.

Case No. 06-1819

On Appeal from theFranklin County Courtof Appeals, TenthAppellate District

Court of AppealsCase No. 05AP-149

MEMORANDUM OF PLAINTIFF-APPELLEE OPPOSING JURISDICTION

RON O'BRIEN 0017245Franklin County Prosecuting Attorney373 South High Street-13°i Fl.Columbus, Ohio 43215Phone: 614/462-3555Fax: 614/462-6012Email: sl5ilbern,franklincountyohio.:,ov

and

SETH L. GILBERT 0072929(Counsel of Record)Assistant Prosecuting Attorney

COUNSEL FOR PLAINTIFF-APPELLEE

YEURA R. VENTERS 0014879Franklin County Public Defender373 South High Street-12"' Fl.Columbus, Ohio 43215614/462-3960

and

DAVID L. STRAIT 0024103(Counsel of Record)Assistant Public Defender

COUNSEL FOR DEFENDANT-APPELLANT

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MAF.UTA i;' CLERKO1.=yD

TABLE OF CONTENTS

EXPLANATION OF WHY THIS COURT SHOULD DECLINE JURISDICTION.I

STATEMENT OF THE CASE ........................................................................................1

STATEMENT OF THE FACTS ......................................................................................2

ARGUMENT .. .................................................................................................................. 8

Response to Proposition of Law: Before giving ajuryinstruction on voluntary manslaughter in a murder case, thetrial judge must determine whether evidence of reasonablysufficient provocation occasioned by the victim has beenpresented to warrant such an instruction. [State v. Sliane(1992), 63 Ohio St.3d 630, paragraph one of the syllabus,followed.] ........... .......................................................................................... 8

CONCLUSION ........................................................ ........................................................ 14

CERTIFICATE OF SERVICE ......................................................................................14

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EXPLANATION OF WHY THIS COURT SHOULD DECLINE JURISDICTION

Defendant's only proposition of law addresses the trial court's refusal to give an

involuntary-manslaughter instruction.. But the law in this area is well-settled. See,

generally, State v. Shane (1992), 63 Ohio St.3d 630. Since defendant does not seek to

overrule, extend, or modify existing law, any ruling from this Court would have minimal

application beyond the narrow facts of this case.

Moreover, the Tenth District correctly affirmed the trial court's refusal to give an

involuntary-manslaughter instruction, given that (1) defendant had ample time to "cool

off' from the prior incidents between him and the victim, and (2) with respect to the

shooting itself, defendant testified that he was scared, not angry. Opinion, ¶119-26.

Since the instant case presents no questions of such constitutional substance or of

such great public interest as would warrant further review by this Court, the State

respectfully requests that jurisdiction should be declined.

STATEMENT OF THE CASE

Defendant was indicted for the aggravated murder of Tabari Patterson, also

known as "T-Pat." At the conclusion of a jury trial, the trial court instructed the jury on

self-defense, but refused to give an involuntary-manslaughter instruction. The jury found

defendant guilty of the lesser-included defense of murder, along with a firearm

specification.

Defendant appealed, raising two assignments of error. The first assignment of

error challenged the trial court's refusal to give an involuntary manslaughter instruction.

The second assignment of error contended that the jury's rejection of defendant's self-

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defense justification was against the manifest weight of the evidence. The Tenth District

overruled both assigriments of error, and affirmed the trial court's judgment.

STATEMENT OF THE FACTS

1. Defendant Shoots and Kills Tabari Patterson in a Strip-Club Parking Lot

On July 10, 2003, Dezjuano Mack, Howard Bryant ("Black"), Anthony Graves

("Tone"), Lou Simmons (also referred to as Lou Russell) ("Bubba"), and defendant went

to Genji's Japanese Steak House to have dinner and drinks. From the steakhouse, the

group-traveling in Bryant's van with Graves driving-went to a couple bars, then to a

strip club called the Playaz Club. When the group arrived at the club, defendant and

Simmons stayed in the van while the others went into the club. Neither defendant nor

Simmons gave the others any reason as to why they chose not to go inside.

Those that went inside split up upon entering the club. Tabari Patterson ("T-

Patt"), whom Mack and Graves had known since childhood, was inside the club with

anotlrer group. One of the individuals in Patterson's group went by "Don Don," another

went by "Chin." According to Graves, Chin was wearing either a Cleveland Indians or

Cincinnati Reds baseball cap. Bryant, however, said that Chin was wearing a "bright

colored" toboggan. Both Mack and Graves greeted Patterson.

Although Mack, Bryant, and Graves gave varying accounts describing how and

why they left the club, the three eventually ended up in the club's parking lot talking to a

woman named Sequoia. Both Mack and Graves testified that they were unaware of

defendant's location at this point.

While in the parking lot, the group heard gunshots. Mack, Bryant, and Graves

quickly got in the van, and with Graves at the wbeel, they drove off. Simmons,

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meanwhile, fled the area on foot. Mack said he heard more gunshots as they drove away.

Based on what he saw in the rearview mirror, Graves thought that these later gunshots

were directed toward the van and that the person firing the shots was wearing a red hat

and was with Patterson earlier that night. Graves, however, did not know whether Chin

was the shooter and acknowledged that "everybody had hats on, basically."

Shortly after driving away from the parking lot, the group saw defendant at a

nearby carryout on Joyce Avenue; Graves stopped the van and defendant got inside.

Entering the van, defendant said something to the effect of, "You all seen me do it," or

"You all was the only ones who seen me do it." Defendant was holding a gun.

H. The Autopsy Reveals Four Gunshot Wounds to Patterson's Head

Dr. Dorothy Dean, formerly of the Franklin County Coroner's Office, performed

the autopsy on Patterson. Dean foimd four gunshot wounds to Patterson's head and

determined the cause of Patterson's death to be "gunshot wounds to the head with

perforation of the brain and brain stem."

Dean explained that one of the bullets entered the back of Patterson's head near

his left ear and had stippling near the entrance wound, indicating that the wound was

inflicted from close range. Another bullet entered the right side of Patterson's face near

his mouth. It, too, had stippling near the entrance wound. The third bullet entered

Patterson's cheek and went "straight across his face, from one cheek to another ***."

The fourth bullet entered the left side of Patterson's forehead and traveled a downward

path into his brain.

Each of these gunshot wounds except the third would have caused Patterson's

death. Even the third wound could have been fatal in that it could have caused Patterson

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to choke on his own blood. Because the bullets hit vital parts of Patterson's brain, death

would have occurred within seconds.

III. Defendant Speaks to the Lead Detective

Detective James Simmons of the Franklin County Sheriffs Office interviewed

defendant a few hours after the shooting. Although untrue, Detective Simmons told

defendant that the shooting was captured on the club's videotape surveillance system.

This is a standard police-interview technique.

Defendant signed a rights-waiver form and was "adamant" to Detective Simmons

about making a statement. Defendant said that he and "a subject whose name he did not

know" (apparently Lou Simmons) sat in the van while Mack, Graves, and Bryant went

into the club. Mack, Graves, and Bryant later exited the club to talk to females in the

parking lot. Defendant said that he and Simmons then got out of the van. At this point,

defendant said he saw Patterson in the parking lot and that Patterson "mouthed something

to him." Thinking Patterson was going to get a gun from his car to follow through on

previous threats, defendant "did what he had to do." Defendant maintained that "it was

either [Patterson] or [him]," and asked Detective Simmons, "What was I supposed to

do?" Defendant also told Detective Simmons that "he needed to act before [Patterson]

did."

Defendant told Detective Simmons that Patterson was "walking" when he was

allegedly getting the gun from his car. Defendant never told Detective Simmons that

anybody had fired at him first, never referred to anybody in a red hat, and never

mentioned Don Don or Chin.

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IV. Defendant Testifies that He Killed Patterson in Self-Defense

Defendant testified that Patterson was a friend of defendant's cousin Lekeith

Madden, and that defendant had known Patterson for three or four years. Lekeith and

Patterson were best friends. Defendant said that shortly before the shooting, he had quit

his job at Time Warner, because the job required him to go to the Short North area, and

"that's not an area [he wanted] to be because Tabari Patterson lives in that area."

Defendant stated that his problems with Patterson began when he loaned

Patterson $20 while the two were at a chiropractor's office. •Defendant maintained that

when he later saw Patterson at an indoor basketball court and asked him for the money,

Patterson responded by saying, "You know, I'm a killer. I don't pay money back; I kill

them." Defendant testified that as he walked away, Patterson said, "You, your brother,

and your cousin, you all are [bitches]." At this point, defendant's brother Marcus got into

a fistfight with Patterson. After the fistfight, Patterson said to defendant, "I know where

you live at. I'm going to come and get you." Defendant stated that Patterson displayed a

gun while in the parking lot to the basketball court. Sometime after the basketball-court

incident, defendant saw Patterson again at the chiropractor's office but left before

receiving any treatment in order to avoid Patterson.

Defendant further testified that Lekeith told him that Patterson made additional

threats against defendant. Lekeith told defendant that Patterson had come to defendant's

aunt's (Lekeith's mother) house with an AK-47, saying he was going to shoot defendant.

On another occasion, defendant was in his aunt's house when Patterson arrived to see

Lekeith. Patterson displayed a gun and told defendant to "come outside," but defendant

refused.

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Because of Patterson's threats, and because Patterson told defendant he knew

where he lived, defendant moved from Blacklick to Hilliard. About a month later,

defendant and Lekeith were at a gas station on Fifth Avenue when he saw Patterson.

Patterson "bumped" defendant on the shoulder, which defendant construed as

confrontational. Although defendant had already paid for the gas, he left without

pumping any gas into his car. Patterson followed defendant from the gas station; after

driving around the block, defendant said Patterson began shooting at his car. Lekeith,

who was in defendant's car, called Patterson on a cell-phone to ask why he was shooting

at defendant, but Patterson hung up on him. One of the bullets hit defendant's rear

license plate.

Despite knowing that Patterson had shot at his car, defendant did not call the

police. To explain, defendant said, "I was scared that would make things continue and

make things worse. I didn't want him to know any more about me, my name and-my

full nanie and everything like that." Defendant thought Patterson would go away if he

ignored him. On cross-examination, however, defendant admitted that he and his mother

filed a police report stating that Lekeith, not Patterson, was the one shooting at

defendant's car. Defendant claimed that he told the police about Patterson at this time,

but that the police failed to include Patterson in the report.

Several weeks after the license-plate-shooting incident, defendant was questioned

by police about a handgun in his car. Defendant told the police that he needed the gun to

protect himself from Patterson.

Defendant admitted that he had a gun the night Patterson waskilled. Defendant

did not go into Playaz Club because he had no money and he had lost his identification.

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Defendant did not see Patterson that night until Patterson left the club and was standing

outside the club's entrance. Patterson saw defendant, who was outside the van at this

point, and said, "Oh, I told you not to. come back outside" and "I'm going to get you this

time. I won't miss you this time." Defendant asked Patterson why he wanted to shoot

him so badly.

Defendant testified that Patterson then went to his car, got a gun, and shot at

defendant. Defendant said that someone with a red had also shot at him; defendant then

returned fire. Defendant said he was scared and that "[his] life was flashing in front of

[his] eyes." After seeing the man in the red hat duck behind a car, defendant ran across

the street and eventually got into Bryant's van.

Defendant described how he was feeling at this point:

I mean, I never felt that way before. I mean, I feltlike I was going to pass out. My heart was beating so fast.I mean, I was scared for my life. I mean, I was shockedthat I had to actually shoot someone, shoot at someone orshoot my gun, period, but I-my uncle died-he got killeda couple of years before this, and I told myself that if I wasfaced with a situation where I had to shoot, I would shoot.

Defendant admitted that he tried to hide his gun when the police pulled over the van.

Defendant, however, said that he put the gun on the floorboard to ensure that no one else

would be in danger.

When asked why he did not tell Detective Simmons that Patterson and the man in

the red hat had initiated the gunfire, defendant said that he assumed everything would be

on the club's surveillance videotapes and "there was no reason for [him] to tell [Detective

Simmons] what happened that night."

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In summarizing the shooting, defendant said: "It was a life or death situation. It

was a reaction to my life being in danger." Defendant claimed that the event traumatized

him, because, "[he] had to defend [himself] and [he] had to shoot someone that night."

Defendant specifically denied feeling any hatred toward Patterson. He also denied that

Patterson's prior threats provided him a reason to want to kill Patterson.

ARGUMENT

Response to Proposition of Law: Before giving a juryinstruction on voluntary manslaughter in a murder case, thetrial judge must determine whether evidence of reasonablysufficient provocation occasioned by the victim has beenpresented to warrant such an instruction. [State Y. Shane(1992), 63 Ohio St.3d 630, paragraph one of the syllabus,followed.]

1. General Principles Regarding Voluntary-Manslaughter Instructions

Voluntary manslaughter is defined as follows:

No person, while under the influence of suddenpassion or in a sudden fit of rage, either of which is broughton by serious provocation occasioned by the victim that isreasonably sufficient to incite the person into using deadlyforce, shall knowingly cause the death of another ***.

R.C. 2903.03(A). Voluntary manslaughter is an inferior-degree offense of aggravated

murder, as "its elements are * * * contained within the indicted offense, except for one or

more additional mitigating elements." State v. Benge (1996), 75 Ohio St.3d 136, 140,

quoting State v. Deem (1988), 40 Ohio St.3d 205, paragraph two of the syllabus.

Voluntary manslaughter contains both objective and subjective components:

An inquiry into the mitigating circumstances ofprovocation must be broken down into both objective andsubjective components.[] In determining whether theprovocation is reasonably sufficient to bring on suddenpassion or a sudden fit of rage, an objective standard must

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be applied. Then, if that standard is met, the inquiry shiftsto the subjective component of whether this actor, in thisparticular case, actually was under the influence of suddenpassion or in a sudden fit of rage. It is only at that pointthat the "* * * emotional and mental state of the defendantand the conditions and circumstances that surrounded himat the time ***" must be considered.

State v. Shane (1992), 63 Ohio St.3d 630, 634, citing Deem, 40 Ohio St.3d 205,

paragraph five of the syllabus (footnote in Shane omitted).

Before giving an instruction on voluntary manslaughter, the trial court must

determine "whether evidence of reasonably sufficient provocation occasioned by the

victim has been presented to warrant such an instruction." Shane, 63 Ohio St.3d 630,

paragraph one of the syllabus. A defendant is entitled to a voluntary-manslaughter

instruction "when the evidence presented at trial would reasonably support both an

acquittal on the charged crime of murder and a conviction for voluntary manslaughter."

Id. at 632. Otlierwise, the trial court is not required to give the voluntary-manslaughter

instruction. Id., citing State v. Kidder (1987), 32 Ohio St.3d 279, 282-83.

Thus, a defendant does not become entitled to a voluntary-manslaughter

instruction merely by presenting "some evidence" of provocation. Shane, 63 Ohio St.3d.

at 632. Rather, the evidence must be such that it would allow a jury to reasonably reject

the greater offense and find the defendant guilty on the lesser-degree offense. Id.

H. Defendant Failed to Present Sufficient Evidence of Provocation to Warrant aVoluntary-Manslaughter Instruction

A. The Defense Consistently Maintained that Defendant Killed PattersonOut of Fear, Not Rage

The trial court properly refused to give a voluntary-manslaughter instruction. To

begin, defendant never testified that he killed Patterson while "under the influence of any

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sudden passion or in a sudden fit of rage," R.C. 2903.03(A), but rather maintained

throughout the trial that he killed Patterson out offear.

The defense's emphasis on fear was first established during opening statement.

The defense stated that "[defendant] is living in abject fear that Tabari Patterson is going

to follow through with his threats." The defense further maintained that defendant

bought a gun "for his own protection." And in describing the shooting, the defense

claimed that defendant "shot Tabari Patterson to defend himself while others were

shooting at him." Even when the defense used the word "provocation" near the end of its

opening statement, the focus remained on self-defense: "Kevin Madden had more than

adequate provocation, based upon history and facts, that night to believe that he was

going to be shot, and that he did what he did was the strongest provocation to defend

himself."

Defendant's statement to Detective Simmons further proved that defendant acted

under no sudden passion or rage. Defendant told Detective Simmons that he "did what

he had to do" because he thouglit Patterson was going to follow through on previous

threats. Defendant maintained that "it was either [Patterson] or [him]" and told Detective

Simmons that "he needed to act before [Patterson] did."

Defendant's trial testimony adhered to the defense's theory that he acted out of

fear, not rage. Defendant described various events in which Patterson allegedly

"threatened" him or "intimidated" him and said that he moved to Hilliard because "he

knew he was in danger." Defendant claimed that he was carrying the gun because "the

need to protect [himself] was still present." Moreover, defendant specifically denied

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feeling any hatred toward Patterson and said that Patterson's threats did not cause him to

want to kill Pattersori.

Nor did defendant's testimony about the shooting itself establish sudden passion

or rage. After testifying that Patterson had shot at him first, defendant was asked whether

he was scared, and he answered, "Yes, I was." And in describing how he felt at the time

of the shooting, defendant said: (1) "1 was scared for my life," (2) "it was a reaction to

my life being in danger," (3) "1 had to defend myself," (4) "My life was in danger," (5) "I

was defending myself," (6) "1 was scared," (7) "[my heart was beating hard] just from

fear," and (8) "If you call defending yourself a killer, then I believe I must be there, sir."

This Court has held that "fear alone is insufficient to demonstrate the kind of

emotional state necessary to constitute sudden passion or fit of rage." State v. Mack

(1998), 82 Ohio St.3d 198, 201; see, also, State v. Copley, Franklin App. No. 04AP-511,

2005-Ohio-896, ¶39; State v. Lee, Franklin App. No. 04AP-234, 2004-Ohio-6834, ¶19;

State v. Collins (1994), 97 Ohio App.3d 438, 446 (defendant's testimony that he acted

solely in self-defense insufficient to establish subjective component of provocation test).

Given the defense's continual emphasis on defendant's fear, no jury could have

reasonably concluded that defendant was "actually under the influence of sudden passion

or in a sudden fit of rage" when he killed Patterson. Sllane, 63 Ohio St.3d at 634.

Thus, the trial court correctly held that there was "no evidence of hot blood, heat

of passion, rage, and so forth. It was fear for his life." For this reason alone, the trial

court properly refused to give a voluntary-manslaughter instruction.

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B. Defendant's Testimony About Past Threats Was Insufficient toEstablish Reasonable Provocation

Defendant claims that Patterson's prior threats would have "inflamed Appellant's

emotions, as well as his fears." (Memorandum, 8) But even if it is true that Patterson

threatened defendant in the past, such prior threats were insufficient to establish

reasonable provocation. Generally, "[w]ords alone will not constitute reasonably

sufficient provocation to incite the use of deadly force in most situations." Shane, 63

Ohio St.3d 630, paragraph two of the syllabus. Particularly pertinent to this case, "past

incidents of verbal threats do not satisfy the test for reasonably sufficient provocation

when there is sufficient time for cooling off." Mack, 82 Ohio St.3d at 201, citing State v.

Huertas (1990), 51 Ohio St.3d 22, 31-32. Given the lapse of time, no jury could have

reasonably concluded that any such prior threats caused defendant to be under the

influence of a sudden passion or rage.

Moreover, defendant's testimony about past threats fails to establish the

subjective component of the provocation test. As noted above, defendant specifically

denied feeling any hatred toward Patterson and said that Patterson's tlireats did not cause

him to want to kill Patterson. This testimony shows that any past threats by Patterson did

not actually enrage defendant.

C. Defendant's Shooting Patterson Four Times in the Head Belied AnyVoluntary-Manslaughter Theory

Finally, defendant shot Pattersonfour times in the head, and, given the stippling

on the wounds, at least two of the shots were apparently fired from close range. This

evidence further eliminated any need for a voluntary-manslaughter instruction. State v.

Braden, 98 Ohio St.3d 354, 2003-Ohio-1325, ¶70 (no voluntary-manslaughter instruction

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required where defendant shot one victim five times and shot the other victim in back of

the head), citing State v. Carter (2000), 89 Ohio St.3d 593, 602 (voluntary-manslaughter

instruction denied where the victim was stabbed 18 times).

111. The Cases Cited in Defendant's Memorandum Are Inapposite

In arguing that a voluntary-manslaughter instruction was required, defendant

relies on State v. Thomas (March 26, 1996), Franklin App. No. 95AP-984. In Thomas,

the defendant testified that he was "ticked off' and that "[he] felt like [his] respect was

gone." Id. Defendant further testified that he was "upset" and "mad" because the victim

had taken his money. Id. An acquaintance of the victim testified that defendant was

"visibly upset." Id. The Tenth District stated that this evidence "reflected defendant's

subjective passion or fit of rage." Id. Moreover, the Tenth District concluded that five to

ten minutes did not necessarily indicate that defendant's anger had subsided. Id.

In the present case, however, defendant never testified that he was "mad" or

"upset" when he killed Patterson. To the contrary, defendant continually maintained that

he was scared and was acting in self-defense. Moreover, Patterson's alleged threats and

intimidating conduct occurred well before the killing, giving defendant had ample time to

"cool off."

Defendant's reliance on State v. Hill (1995), 108 Ohio App.3d 279, is equally

misplaced. In Hill, the trial court granted the State's request for a voluntary-

manslaughter instruction, and, although reversing on other grounds, the Eighth District

agreed that the evidence warranted the instruction. Id. at 281-84. The opinion is unclear

as to the extent the evidence showed the defendant was subjectively acting under the

influence of a sudden passion or a sudden fit of rage. In any event, unlike the present

13

case, the opinion states that the defendant and her husband had been engaged in mutual

combat immediately before the killing. Id. at 280-81.

Fo the foregoing reasons, the. State respectfully submits that defendant's

proposition of law warrants no further review.

CONCLUSION

For the foregoing reasons, the State respectfully submits that jurisdiction should

be declined.

Respectfully submitted,

RON O'BRIEN 0017245Prqsecutir3g Attorney

(SFj`I' qL) GILBERT 00729297iCssistant Prosecuting Attorney373 South High Street-13`h Fl.Columbus, Ohio 43215614/462-3555

Counsel for Plaintiff-Appellee

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing was hand-delivered this day,

October 30, 2006, to DAVID L. STRAIT, 373 South High Street-12th Fl., Columbus,

Ohio 43215; Counsel for Defendant-Appellant.

^J ,4°tSE^'H LBERT 0072929A3Jsistant osecuting Attomey

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