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‘Prior calculation and design’ is more than purposeful killing
DAN TREVAS
Supreme Court
Public Information Office
Published: January 6, 2017
The Ohio Supreme Court recently struck down the aggravated murder conviction of a man who fatally shot a fellow patron during a Cleveland bar fight because the prosecutor did not prove he acted with “prior calculation and design.”
Dajhon Walker killed Antwon Shannon at the Tavo Martini Lounge in 2012 and was convicted of felony murder and other offenses. Walker also had been convicted of aggravated murder, which was reversed by the 8th District Court of Appeals. The court voted 4-3 to affirm the 8th District’s judgment, overruling the aggravated-murder conviction and remanded the case to the Cuyahoga County Common Pleas Court to resentence Walker.
Writing for the Court majority, Justice Judith Ann Lanzinger stated that the elements of purpose and prior calculation and design are distinct, and the state must prove both to support a conviction of aggravated murder under R.C. 2903.01.
In a dissenting opinion, Justice Terrence O’Donnell wrote a jury reasonably concluded that Walker formulated a plan to kill Shannon and convicted him of aggravated murder. He maintained the 8th District improperly second-guessed the jury’s decision.
Video Shows Bar Melee
Several eyewitnesses, police detectives, and forensic experts testified about the events that unfolded on the night of Shannon’s murder, but Justice Lanzinger indicated the primary evidence came from video footage recorded by 16 surveillance cameras located in and around the Tavo Martini Lounge.
The video showed Shannon and Ivor Anderson on the dance floor around 2 a.m. when Robert Steel, who was also dancing, began to twirl a glass of champagne in the air. Some of his champagne spilled on Anderson, who responded with a remark. Steel danced for a few moments then began to talk to a group of people. Walker, Derrell Shabazz, and Otis Johnson were in a different area of the club drinking and talking. The three made their way to the dance floor, then over to Steel and the others.
The group that included Steel, Walker, and Shabazz continued to talk for about nine minutes, repeatedly looking over at Shannon and Anderson. About 15 minutes after Steel initially spilled champagne on Anderson, a fight started when Steel ran at Anderson from behind and hit him with a champagne bottle. Others, including Walker, joined the fight.
Walker hit Shannon and threw a bottle at him. Walker, Shabazz, and Shannon fell on one another during the fight, and as they recovered Shannon moved away from the fight and Walker moved out of the view of the cameras to a corner of the room behind a pillar. A woman joined the fight and shoved Anderson toward the corner where Walker had retreated, and that propelled the group to that corner. A gunshot flash is seen in the video and then everyone in the club scattered. Walker appears from behind the pillar fumbling with his waistband, and then he and Shabazz hurried out of the club together.
The gunshot hit Shannon in the back from a range estimated at 1 to 2 feet. The bullet passed through his chest, and he died soon afterward.
Convictions for Walker and Shabazz
A Cuyahoga County grand jury indicted Walker and Shabazz for aggravated murder, felony murder, having weapons while under a disability, and six counts of felonious assault, all with firearm specifications.
In a joint trial, Walker was convicted of all charges except two of the assault counts, and he was sentenced to 25 years to life in prison. Shabazz was similarly convicted for his own actions and his complicity with Walker, and he received 22 years to life in prison. Both appealed to the 8th District.
Shabazz’s complicity convictions were vacated and his convictions for felonious assault were affirmed. On further appeal by the state to the Supreme Court, Shabazz’s appeal was eventually dismissed.
In his appeal, Walker argued his aggravated-murder conviction was not supported by sufficient evidence because the state failed to prove that he acted with prior calculation and design. Relying on a standard set by the Ohio Supreme Court in its 1997 State v. Taylor decision, the court of appeals vacated Walker’s conviction for aggravated murder and returned his case to the trial court for resentencing. The state appealed to the Supreme Court which accepted the case on the questions of sufficiency of evidence and jury inferences.
Evidence Sufficiency
Justice Lanzinger explained that when a conviction is challenged for lack of sufficient evidence, the court of appeals must determine “whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.”
She stated that because Walker was convicted of murdering Shannon while committing a felonious assault, the evidence supports a conviction under the felony murder statute, R.C. 2903.02(B). But for aggravated murder, R.C. 2903.01(A) requires the state prove beyond a reasonable doubt that Walker “purposely and with prior calculation and design” caused Shannon’s death.
The majority opinion notes that the statute’s requirement of “purposely” and “with prior calculation and design” are two separate elements, not one.
Justice Lanzinger explained: “The phrase ‘prior calculation and design’ by its own terms suggests advance reasoning to formulate the purpose to kill. Evidence of an act committed on the spur of the moment or after momentary consideration is not evidence of a premeditated decision or a studied consideration of the method and the means to cause a death. The General Assembly has determined that it is a greater offense to premeditate or to plan ahead to purposely kill someone. All prior-calculation-and-design offenses will necessarily include purposeful homicides; not all purposeful homicides have an element of prior calculation and design.”
The majority opinion did not adopt a bright-line test to determine if an offender acted with prior calculation and design, instead observing that each case turns on the facts and evidence presented. The court considered the evidence in light of these questions developed in Taylor: “(1) Did the accused and victim know each other, and if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder weapon or murder site? And (3) Was the act drawn out or ‘an almost instantaneous eruption of events?’”
Justice Lanzinger stated it appears that Walker and Shannon did not know each other and that the killing resulted from a spontaneous eruption of events. Walker did not give thought or preparation to choosing the murder weapon because the video footage indicated he already had the gun before he was even aware of Steel’s interaction with Anderson. Walker killed Shannon after an “assault that quickly turned to chaos,” that started over spilled champagne on the dance floor.
“There is no evidence that Walker and his friends devised a scheme to shoot Shannon and then carried it out. The plan that existed among Walker’s group that evening was a plan to commit felonious assault, not murder. The video recordings of the incident show nothing that was carefully planned once the fight began. It quickly turned into a free-for-all with people outside Walker’s original small group jumping in, two of Walker’s original group fighting each other, and Shannon, Walker, and Shabazz slipping and falling on top of one another. In the middle of this fight, a single shot was fired in the presence of dozens of people,” she wrote
Although Walker was out of camera view when the shooting occurred, a jury could have reasonably concluded Walker decided to shoot Shannon, but it could not infer that he planned the murder beforehand.
“Aggravated murder is a purposeful killing that also requires proof of prior calculation and design: forethought, planning, choice of weapon, choice of means, and the execution of the plan. In this case, there is no evidence that Walker planned Shannon’s murder beforehand,” Justice Lanzinger concluded.
Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer and William M. O’Neill joined the majority opinion.
Dissent Concludes State Presented Sufficient Evidence
“In this case, the 8th District was required to view the evidence in the light most favorable to the state and to draw all reasonable inferences in the state’s favor when it reviewed Walker’s conviction for sufficient evidence of prior calculation and design. It failed in that duty,” Justice O’Donnell wrote in his dissent.
Justice O’Donnell noted that while the three questions developed in Taylor may be “pertinent” in determining prior calculation and design, the court has never held they are exclusive factors. He noted in State v. Coley (2001) the Court found prior calculation and design can be found even when the killer quickly conceived and executed a plan within minutes. And in a 2006 decision (State v. Conway), the court found prior calculation and design when the killer’s actions “went beyond a momentary impulse and show that he was determined to complete a specific course of action.”
When viewing the evidence in a light most favorable to the state, sufficient evidence of prior calculation and design was presented in Walker’s case, he suggested.
“Anderson testified that after he spoke to Steel, he suspected he might be attacked by Steel and his group, and the camera footage shows the group gesturing and looking toward him over an extended period of time,” Justice O’Donnell wrote. “The video also reveals their preparations for the attack. Steel concealed an empty champagne bottle, Shabazz removed his glasses, and an unidentified accomplice zipped up his coat. Johnson also concealed a champagne bottle behind his forearm and walked across the dance floor, putting Anderson between himself and Steel.”
Justice O’Donnell wrote that Walker specifically targeted Shannon when the fight started, circling to reach him, punching him, and attempting to hit him with a champagne bottle. A jury could reasonably infer that the attack on Anderson and Shannon was preplanned and coordinated, he asserted, and could also infer from the use of champagne bottles that there was an intent to cause serious injury or death.
“Most importantly, the video reveals that Walker reached for his waistband and withdrew from the fight for approximately 20 seconds. From this evidence, the jury could reasonably infer that he was holding a firearm for that entire time, which gave him sufficient time and opportunity to reflect on whether to use it, and the jury could also reasonably conclude that within that 20 seconds Walker conceived a plan to kill either Shannon or Anderson, strategically placing himself behind the pillar and waiting for a clear shot,” he wrote.
Justice O’Donnell concluded that the appellate court failed to properly apply the standard for reviewing sufficiency of the evidence because it substituted its judgment for that of the jury and failed to construe all inferences most favorably to the state, and therefore, he would reinstate the trial court’s judgment.
Justices Sharon L. Kennedy and Judith L. French joined Justice O’Donnell’s opinion.
The case is cited 2014-0942. State v. Walker, Slip Opinion No. 2016-Ohio-8295.