IN THE SUPREME COURT OF OHIO

CASE NO.0

STATE OF OHIO

Plaintiff-Appellee,

V.

ASHLEY BERGER,

Defendant-Appellant.

17̂^0 13 1

Discretionary Appeal from theCuyahoga County Court of AppealsEighth Appellate District

Court of Appeals Case No. 87603

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT ASHLEY BERGER

WILLIAM L. SUMMERS (0013007)(Counsel of Record)EDWIN J. VARGAS (0062913)Summers & Vargas Co., L.P.A.The Illuminating Building55 Public SquareSuite 2000Cleveland, Ohio 44113Phone: 216.591.0727Fax: 216.591.0740Email: wlslawyerCc^aol.com

WILLIAM D. MASONCuyahoga County Prosecutor

MICHAEL D. HORNAssistant County ProsecutorThe Justice Center1200 Ontario Street9`h FloorCleveland, Ohio 44113

Attorneys for Appellee State of Ohio

Attorneys for AppellantAshley Berger

LF

JAN 2 3 2007

IMARCIA J. NlEAICEL. CLERKThe nt,^.;^^ Bu;ta;ng, Suite 2000, Cte..^d, ot,r^ aat^a_SUf'(iErv1E" CCiUHT OF OHIO J

TABLE OF CONTENTS

EXPLANATION OF WHY LEAVE TO APPEAL SHOULD BE GRANTED .................2

STATEMENT OF THE CASE AND FACTS .........................................................3

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW .......................................5

Proposition of Law; When a trial court precludes a defendant, in theassertion of self-defense, from introducing statements of threats made by thedecedent victim against that defendant and then refuses to instruct the jurythat the defendant had no duty to retreat from the porch or from the defenseof family, the trial court prevents the defendant from proving self-defenseand thereby denies the defendant a fair trial.

CONCLUSION .............................................................................................12

CERTIFICATE OF SERVICE .........................................................................15

umnera t^ wr8aa a. e^^ 1The Illumiuating Bnildin, Suite 2000, Cleveland, OLio 44113

EXPLANATION OF WHY LEAVE TO APPEAL SHOULD BE GRANTED

On April 27, 2005, Appellant Ashley Berger, who was pregnant at the time, stabbed

Vanessa McMorick and her sister Christina Barkley, causing McMorick's death and Barkley

injury, while the two victims attacked Berger on the porch of her own home after McMorick

threatened to "stomp or kick" Berger's unborn child from her body. This occurred while other

members of the Barkley family attacked and beat members of Berger's faniily in Berger's own

front yard during a racially motivated confrontation between neighbors initiated by Barkley's

family.

At trial, Berger raised the affirmative defense of self-defense. However, the Cuyahoga

County Common Pleas Court erroneously refused to permit testimony of McMorick's statements

threatening to "stomp or kick" Berger's unborri child from her body. The Trial Court, on

numerous occasions in response to objection, ruled that the statements of McMorick's threats to

Berger constituted hearsay and effectively instructed the jury to disregard that testimony. The

Trial Court further refused to instruct the jury that Berger had no duty to retreat from her own

porch or from the defense of her family. Thereafter, Berger was convicted of voluntary

manslaughter, involuntary manslaughter and aggravated assault.

Based upon the facts of the case sub judice, any rational jury could have found that

Berger satisfied the elements of self-defense by a preponderance of the evidence and then

acquitted her. However, because the Common Pleas Court so erred, Berger was rendered

incapable of proving that (1) she had a bona fide belief that she was in imminent danger of death

or great bodily harm and that her only means of escape was in the use of force; and (2) she did

not violate any duty to retreat or avoid the danger. Simply stated, the Trial Court prevented

AM"nom d- 7i'myw & _eopw 2The 7lluminating Buitding, suite 2000, Cteveland, Ohio 44113

Berger from proving self-defense, i.e., from proving the second and third elements of that

affirmative defense, and thereby denied her a fair trial.

Therefore, this Ohio Supreme Court should grant leave to appeal for the following

reasons:

1. To hold that testimony of threatening statements made to a defendant by a decedent

victim, offered to prove the second element of self-defense, is not hearsay and to

exclude such testimony constitutes reversible error;

2. To hold that one has no duty to retreat from the porch of one's home and from the

defense of one's family and that the failure to so instruct the jury constitutes

reversible error; and,

3. To right a manifest miscarriage of justice in the case sub judice.

STATEMENT OF THE CASE AND FACTS

This case emanates from a hostile relationship which existed between neighbors, viz., the

Christina Barkley family and the Ashley Berger family. On April 27, 2005, Berger stabbed

Barkley and her sister Vanessa McMorick during a racially motivated attack by the Barkley

family upon the Berger family on the Berger residential property. For nine months prior to this

event, members of Barkley's family verbally, physically and at times sexually harassed members

of Berger's family including her young son. This harassment, on numerous occasions, took the

form of verbal threats made by McMorick to "stomp or kick" Berger's unborll child from her

body and included racial slurs against Berger. At one point, Barkley actually attacked Berger and

the two engaged in a physical confrontation in which neither was seriously injured.

The April 27, 2005 altercation began when Barkley and McMorick, while in Berger's

front yard, physically attacked Berger's father, Kenneth Clements, who was carrying and

.mumrMera ^& u3oaa {ow. ^nopa 3

The Bluminating Building, Suite 2000, Cleveland, Ohio 44113

breathing from a portable oxygen tank due to a cancer illness. When Berger's fiancd, Matt

Macenti, attempted to defend Clements, two of Barkley's nephews Trevor and Delmonte Davis

joined the altercation, spit on Macenti and then physically attacked him. Subsequently, in a series

of rapidly-escalating reactions, Berger's brother and mother Michael and Crystal Green, and

Macenti's mother Gayla Lawson, became embroiled in the gang-like assault by the Barkley

family upon the Berger family while Berger, terrified, watched from her porch.

Sighting Berger, McMorick screamed again that she would "stomp or kick" Berger's

unborn child from her body which prompted Berger to obtain a knife from inside her home in

order to protect herself and her family. McMorick and Barkley then ran to Berger and physically

attacked her on her porch. Berger's mother and brother, Crystal and Michael Green, attempted to

separate Berger from McMorick and Barkley who then turned from Berger and began to

viciously beat them. At this point, Berger stabbed McMorick and Barkley reasonably believing

that she was defending her life, the life of her unborn child and the lives of her mother and

brother. Barkley was not seriously injured but McMorick later expired from her wounds.

Thereafter, Berger was indicted on six counts, viz., one count of murder, in violation of

R.C. 2903.02(A); one count of murder, in violation of R.C. 2903.02(B); two counts of felonious

assault, in violation of R.C. 2903.11(A)(1); and two counts of felonious assault, in violation of

R.C. 2903.11(A)(2).

On June 17, 2005, trial commenced in the Cuyahoga County ' Common Pleas Court.

During Berger's case-in-chief, the Trial Court refused to admit into evidence statements by

Berger and other witnesses, which the Trial Court deemed to be hearsay, of the threats against

Berger, made by McMorick, i.e., the threats to "stomp or kick" Berger's unborn child from her

body. Further, the Trial Court refused to charge the jury that Berger had no duty to retreat from

.uw^ e %48aa &,. _e^pw 4The Illuminating Building, Suite 2000, Cleveland, Ohio 44113

her porch or from the defense of her family. Thereafter, the jury convicted Berger of voluntary

manslaughter, involuntary manslaughter and aggravated assault. Berger filed a timely appeal to

the Cuyahoga County Court of Appeals raising the errors she now proposes in this

Memorandum.

In State v. Berger (December 14, 2006), Cuyahoga App. No. 87603, unreported, the

Appellate Court strained to affirm her convictions.

With respect to the issue regarding the preclusion of statements of McMorick's threats to

Berger, the Court of Appeals conceded that the Common Pleas Court erred but found no

prejudice as a result of the error. Regarding the issues of jury instruction, the Appellate Court

agreed with Berger's statements of the law but held that the facts did not warrant Berger's

proposed jury instructions. Berger now appeals to this Ohio Supreme Court and raises one

Proposition of Law.

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

Proposition of Law: When a trial court precludes a defendant, in theassertion of self-defense, from introducing statements of threats made by thedecedent victim against that defendant and then refuses to instruct the jurythat the defendant had no duty to retreat from the porch or from the defenseof family, the trial court prevents the defendant from proving self-defenseand thereby denies the defendant a fair trial. •

In State v. Williford (1990) 49 Ohio St.3d 247, 249, this Ohio Supreme Court stated in

relevant part:

To establish self-defense, the defendant must show "*** (1) *** [he] was not atfault in creating the situation giving rise to the affray; (2) * * * [he] has a bona fidebelief that he was in imminent danger of death or great bodily harm and that hisonly means of escape from such danger was in the use of *** force; and (3) * * *[he] must not have violated any duty to retreat or avoid the danger. ***" Thedefendant is privileged to use that force which is reasonably necessary to repel theattack. "If the defendant fails to prove any one of these elements by apreponderance of the evidence he has failed to demonstrate that he acted in self-defense." [Citations omitted; Emphasis in original].

.rcw^ ^ ^ix8ma ^oa. -nop ^ 5The Bluminating Building, Suite 2000, Cleveland, Ohio 44113

In State v. Randle (1980) 69 Ohio App.2d 71, 73, the 10`h District Court of Appeals stated

in relevant part:

Defendant's right to present evidence relating to self-defense is fundamental. * * *[T]he defendant may introduce proof of the victim's threats against her in orderto establish her belief that she was in danger at the time of the killing. ***Inherent within the right to offer evidence of threats of violence putting thedefendant in fear of her life is proof of the reason for the threats to be made.Without an explanation of the reason therefore, it is unlikely that the defendantcould establish that element of self-defense by a preponderance of the evidence,as required. [Emphasis added].

See State v. Debo (1966) 8 Ohio App.2d 325; State v. Young (August 31, 1994), Lorain App. No.

93CA005710, unreported.

Further, such statements of the victim's threats do not constitute hearsay. Evid.R. 801©

defines hearsay:

"Hearsay" is a statement, other than one made by the declarant while testifying atthe trial or hearing, offered in evidence to prove the truth of the matter asserted.[Emphasis added].

In State v. Fort (May 10, 1990), Cuyahoga App. No. 56922, unreported, the 8`h District

Court of Appeals addressed this specific issue and stated at 3 in pertinent part:

"Evidence of a threat *** is commonly offered to show the threat was made,rather than to prove the truth of any fact existing at or before it was made. Itsrelevance derives from its effect on those who heard it.'x [Citation omitted;Emphasis added].

See State v. Taylor (March 31, 1983), Cuyahoga App. No. 45374, unreported.

In State v. Cockrell (September 8, 1983), Cuyahoga App. No. 45737, unreported, the 8`h

District Court of Appeals stated at 2 in relevant part:

[Randle, supra] held that it is reversible error for a trial court to sustain a statemotion *** preventing the defense from putting in evidence of (1) threats ofviolence by the victim making the defendant fear for her life ***.

The Cockrell Court reasoned in pertinent part:

^u^ v& -11ar, ^ aa ^a. eop a. 6The Illuminating Building, Suite 2000, Cleveland, Ohio 44113

Such a ruling forced the defendant there to attempt "proof of self defense in avacuum without the jury being aware of why defendant was afraid of the victim orwhy he was threatening her." *** To deny the jury the opportunity to hearevidence bearing on the defendant's honest belief in imminent danger and theneed for self-defense was error. In the context of the facts in this case, it cannot besaid that the error did not "affect substantial rights." Accordingly, the error cannotbe held harmless and disregarded ***. [Citations omitted; Emphasis added].

In the case sub judice, immediately prior to the attack on Berger by McMorick and

Barkley, McMorick again screamed the threat to "stomp or kick" Berger's unborn child from her

body. Because of this verbal threat, and the fact that she was being physically attacked at that

moment, Berger reasonably believed that she was in imminent danger of death or great bodily

harm and, consequently, she stabbed McMorick and Barkley.

However, at trial, the Common Pleas Court precluded Berger from introducing into

evidence the threats made by McMorick prior to and during the April 27, 2005 altercation.

Berger was, therefore, prevented from establishing her bona fide belief that, immediately prior to

her use of deadly force, she was in imminent danger of death or great bodily harm and that her

only means of escape from such danger was in the use of such deadly force.

On appeal, the 8`h District Court of Appeals acknowledged the error but found no

prejudice stating at 44 13-14 in relevant part:

Although we conclude the trial court erred, we find the error was not prejudicialbecause in spite of the trial court's ruling, Berger did testify regarding thesubstance of the threats made. She stated on cross-examination: "They came tome, they started attacking me, and I wasn't going to let them kick my baby out ofme like they said," and "I don't know what they are capable of. They'rethreatening to kick my baby out of me, they came on my porch." She also statedthat because of the threats made by McMorick, and Barkley, she was "scared thatthey were going to do something for me [to] lose my child because they weremaking threats." Therefore, the jury was aware that both McMorick and Barkleywere threatening to injure her unborn child. Moreover, Berger's counsel was alsopermitted to argue during closing argument that Berger used the knife forprotection because of the threats made regarding her unborn child; consequently,no prejudice occurred.

ianwmera c Waryaa 1a. 7The ItluminaNng Buitding, Suite 2000, Cleveland, Ohio 44113

However, throughout the trial, the Common Pleas Court repeatedly sustained objections

to the testimony of McMorick's threats against Berger's unborn child. On numerous occasions,

when it was offered into evidence, the Trial Court labeled it hearsay and thus inadmissible.

These rulings effectively instructed the jury to disregard that testimony or, at the very least, to

view it as minimally credible. For this reason, such error did, in fact, prejudice Berger's defense

in that it forced her to attempt proof of the second element of self-defense to a jury cautioned by

the Trial Court not to consider the evidence relevant. The Trial Court, in so erring, prevented

Berger from proving self-defense.

In Williford, supra at 250, this Ohio Supreme Court stated in pertinent part:

"[W]here one is assaulted in his home, or the home itself is attacked, he may usesuch means as are necessary to repel the assailant from the house, or to preventhis forcible entry, or material injury to his home, even to the taking of life." ***Implicit in this statement of law is the rule that there is no duty to retreat fromone's home. *** In the instant case, there was testimony that the confrontationtook place inside Appellee's house and on Appellee's porch. Because the jury wasnot [properly] instructed *** it might have believed that appellee was under aduty to retreat from his home. It was therefore error for the court to fail to givethis instruction. [Citations omitted; Emphasis added].

Further, in State v. Copeland (April 13, 1993), Franklin App. No. 92AP-1486,

unreported, the 10`h District Court of Appeals stated at 2 in relevant part:

Ohio law is clear that one has no duty to retreat from his home (porch areaincluded) * * *.

Additionally, in State v. Cole (January 22, 1997), Hamilton App. No. C-950900,

unreported, the 15` District Appellate Court stated at 6 in pertinent part:

Taken as a whole, the instraction at issue informed the jury that the appellant hadno duty to retreat in his own home, and provided an expanded explanation that"home" included a porch. The instruction was not erroneous.

In the case sub judice, the Common Pleas Court erroneously denied Berger's proposed

jury instruction that she had no duty to retreat from her porch. As a result, the jury could have

.ummeott g- 71M^aa ia -e-opa 8

The IIluminating Buitding, Suite 2000, Cleveland, Ohio 44113

reached only one conclusion, i.e., Berger had a duty to retreat into her home before McMorick

and Barkley attacked her. Such conclusion, on the part of the jury, most certainly resulted in a

decision that Berger failed to prove the third element of self-defense, viz., that she must have not

violated any duty to retreat.

On appeal, however, the Appellate Court, although agreeing with the content of the

proposed jury instruction, found no error, stating at 1117 in relevant part:

We agree with Berger that the case law indicates that the "no duty to retreat" rulehas been extended to the front porch of a home. In the instant case, it isundisputed that no one was attacking Berger inside her home. However, there isconflicting testimony regarding where the attack occurred outside of the house.Berger testified the stabbing occurred while the women were on her front porch.However, the rest of the witnesses testified that the stabbing occurred in front ofBerger's window by her front walkway, which is several feet from her porch. Infact, no blood was found on the porch. There was, however, a large bloodstain onthe walkway in front of the home, where the other witnesses alleged the stabbingoccurred. Therefore, the preponderance of the evidence does not support Berger'scontention that the stabbing occurred on the porch.

In the foregoing analysis, the Court of Appeals implied that the jury did not believe

Berger's statement that she stabbed McMorick and Barkley on her porch and, therefore, the

failure to provide the jury instruction did not prejudice Berger's defense. However, it cannot be

said that, merely because the evidence was in conflict and Berger was convicted, the jury

believed the version of the facts provided by the State. Rather, her conviction more readily

indicates that the jury found Berger did not prove self-defense. The issue is not whether the

evidence and testimony were in conflict. Evidence and testimony between parties are nearly

always in conflict. The issue is simply whether, by erroneously refusing to provide a pivotal jury

instruction, the Trial Court prevented Berger from proving self-defense.

The jury was confronted with Berger's assertion of self-defense and was obliged to

consider whether she proved the three elements of that affirmative defense by a preponderance of

uu.xmem c,Y' ^wrSaa ^oa. ^^ 5d^ 9

The Illuminating Bunding, Suite 2000, Cleveland, Ohio 44113

the evidence. Assuming that the jury did properly consider whether Berger met her burden of

proof, it cannot be disputed that the jury considered the fact that Berger did not retreat into her

home prior to being attacked. Further, it can easily be seen that, because the jury was not

properly charged regarding the duty to retreat, it determined that Berger should have left her

porch prior to being attacked and, therefore, did not satisfy the third element of self-defense. The

Trial Court, in so erring, prevented Berger from proving self-defense.

In Williford, supra, at 249-50, this Ohio Supreme Court stated in pertinent part:

Ohio law has long recognized a privilege to defend the members of one's family.*** [I]f appellee, "in the careful and proper use of his faculties, in good faith andupon reasonable ground believed that his wife and family were in imminentdanger of death or serious bodily harm *** [appellee] was entitled to use suchreasonably necessary force, even to the taking of life, to defend his wife andfamily as he would be entitled to use in defense of himself." *** The failure toinstruct on defense of family was error. [Citations omitted].

Further, in State v. Dunlap (December 9, 2004), Cuyahoga App. No. 84440, unreported,

at 4, the 8th District Court of Appeals stated in relevant part:

If a person in good faith and upon reasonable ground believes that a familymember is in imminent danger of death or seriously bodily harm, such personmay use reasonably necessary force' to defend the family member to the sameextent, as the person would be entitled to use force in self-defense. [Emphasisadded].

In the case sub judice, Berger's mother, father, brother, fiancc and the mother of her

fianc8 were brutally attacked in Berger's front yard. More importantly, however, at the time

McMorick and Barkley actually attacked Berger on her porch, Berger's brother and mother,

Michael and Crystal Green, rushed to her aid and attempted to free her from her assailants.

During this attempt, McMorick and Barkley, in response, brutally attacked Berger's mother and

brother. At that moment, Berger, in good faith and upon reasonable ground, believed that her

.a,mmarmg- 7/w:paa o. -e-ow 10

The Bluminating Building, Suite 2000, Cleveland, Ohio 44113

family members were in imminent danger of death or serious bodily harm and had no duty to

retreat into her home while her family was under attack.

At trial, the Common Pleas Court erroneously denied Berger's proposed jury instruction

that she had no duty to retreat when she acted in defense of her family. As a result, the jury again

could have reached only one conclusion, i.e., Berger had a duty to retreat into her home even

though her family was under attack by the Barkley family. Such conclusion, on the part of the

jury, most certainly resulted in a decision that Berger failed to prove the third element of self-

defense, viz., that she must not have violated any duty to retreat.

On appeal, however, the Court of Appeals disagreed with this analysis stating at 1f 23 in

pertinent part:

In the instant case, the preponderance of the evidence indicates that Berger'sfamily was not in "imminent danger of death or serious bodily harm." Although,there was a lot of cussing, shoving, pulling hair, and punching, no one was inserious danger. In fact, the only people seriously injured from the altercation wereBarkley and McMorick. Also, the Berger family outnumbered the Barkley family.There were six adults in Berger's family involved in the altercation comparedwith two adults and one minor from Barkley's family. It is also undisputed that noone from the Barkley family had a weapon. Therefore, because the evidence didnot support an instruction on defense of family, the trial court did not err byrefusing to give such an instruction.

Initially, it must be observed that the Court of Appeals incorrectly calculated the number

of persons involved in the altercation. Four members of the Barkley family took part in the

altercation: McMorick, Barkley, and two of Barkley's nephews, viz., Trevor and Delmonte

Davis. While six members of the Berger family took part in the altercation, i.e., Berger, her

father, brother, mother, fiance and his mother, two of them were incapacitated, viz., Berger, who

was far along in her pregnancy, and her father who was an invalid suffering from cancer who

needed to carry an oxygen tank with him in order to breathe,

.uMMera c^ ^r3oaa ^oa -eapa. 11

The Illuminadng Building, Suite 2000, Clevelaad, Ohio 44113

Additionally, the Court of Appeals erroneously presumed that one might not become

seriously injured in a physical altercatiori where weapons are not utilized. One may become

seriously injured from such an attack particularly when that one is already physically

incapacitated as was Bergdr and her father. The issue, however, is not whether the sides were

evenly matched or whether punching can cause serious injury or death. The issue, once again, is

simply whether, by erroneously refusing to provide a pivotal jury instruction, the Common Pleas

Court prevented Berger from proving self-defense.

As already discussed, the jury was unable to find that Berger proved self-defense in the

absence of proper jury instruction regarding a duty to retreat. Proper jury instruction includes

that she had no duty to retreat from the defense of her family. Again, it can easily be seen that,

because the jury was not properly charged in this regard, the jury determined that Berger should

have retreated into her home despite the fact that her mother and brother were being viciously

attacked by McMorick and Barkley and, therefore, did not satisfy the third element of self-

defense. The Trial.Court, in so erring, prevented Berger from proving self-defense.

CONCLUSION

In the case sub judice, the jury was obliged to determine whether Berger justifiably

stabbed McMorick and Barkley. The Common Pleas Court, however, failed to provide the jury

with all of the evidence and with the tools, in the form of proper jury instructions that it required

to reach a fundamentally fair decision. Rather, the Trial Court impeded the function of the jury

by preventing Berger from demonstrating that she met the three elements of the affirmative

defense of self-defense.

The Court of Appeals conceded error with respect to the evidentiary issue but failed to

visualize the effect of that error upon the jury. When the Common Pleas Court minimized the

.umtmera c ^r7rra a. ^'Opa. 12

The Bluminating Building, Suite 2000, Cleveland, Ohio 44113

relevance and significance of McMorick's threats against Berger's unborn child, by refusing on

numerous occasions to permit the introduction of that evidence, the actual severity of

McMorick's deadly threat to Berger and its effect on Berger, when viewed by the jury, was

greatly diminished.

As a result, the jury was unable to comprehend the reason for which Berger had a bona

fide belief that she was in imminent danger of death or great bodily harm, viz., that had

McMorick and Barkley "stomped or kicked" her unborn child, the child and possibly Berger

would have been killed. It matters not that neither Barkley nor McMorick possessed a weapon

because McMorick's threat was deadly due to Berger's condition of being pregnant. This error,

on the part of the Trial Court, indeed prevented Berger from establishing the second element of

self-defense.

The Appellate Court also failed to conceptualize the effect on the jury of the failure to

provide the proper jury instructions. When the Common Pleas Court refused to instruct the jury

that Berger had no duty to retreat from her porch or from the defense of her family, it impliedly

and effectively pronounced to the jury its opinion that Berger should have, in fact, retreated into

her home.

In effect, the Trial Court thus instructed the jury that Berger should have taken no action

in defense of her life, the lives of her family members and the life of her unborn child. It again

must be remembered that Barkley and McMorick attacked Berger on the porch of her own home.

Berger had a right to defend herself and her family on her own property and the Trial Court was

under a duty to so inform the jury. Such failure on the part of the Trial Court to do so prevented

Berger from proving the third and final element of self-defense.

.'^ e 'Ylarpas & eop a. 13

The Bhiminating Bvitding, Suite 2000, Cleveland, Ohio 44113

In essence, by so erring, the Connnon Pleas Court, i.e., the Trial Judge, rather than the

jury, made the determination of whether Berger acted in self-defense when she stabbed

McMorick and Barkley. In so doing, the Trial Court usurped the role of, and substituted its

judgment for that of, the jury within whose province it was to weigh the total amount of

evidence, apply the relevant law and then decide whether Berger satisfied the elements of self-

defense.

Based upon the foregoing Argument, Berger now prays this Ohio Supreme Court will

grant her leave to appeal. She maintains that because the Cuyahoga County Common Pleas Court

refused to admit into evidence statements of the threats made against her and her unborn child by

McMorick and refused to properly charge the jury regarding the "No Duty to Retreat" Rule, the

Trial Court prevented her ftom proving self-defense, by a preponderance of the evidence, and

thereby denied her the fundamental right to a fair trial.

Respectfully submitted,

WILLIAM L. SUMMERS (0013007)EDWIN J. VARGAS (0062913)Summers & Vargas Co., L.P.A.The Illuminating Buildin'g55 Public SquareSuite 2000Cleveland, Ohio 44113Phone: 216.591.0727Fax: 216.591.0740Email: wlslawyern aol.com

Attorneys for Appellant Ashley Berger

^uumtinara ^ ^i^aa ^a. eopa. 14

The Bluminating Building, Suite 2000, Cleveland, Ohio 44113

CERTIFICATE OF SERVICE

This is to certify that a copy of this Memorandum in Support of Jurisdiction of Appellant

Ashley Berger was sent by regular United States mail, postage pre-paid, to William D. Mason,

Cuyahoga County Prosecutor, and Michael D. Horn, Assistant County Prosecutor, The Justice

Center, 1200 Ontario Street, 9`h Floor, Cleveland, Ohio 44113, on this 22nd day of January, 2007.

WILLIAM L. SUMMERS (0013007)EDWIN J. VARGAS (0062913)Summers & Vargas Co., L.P.A.The. Illuminating Building55 Public SquareSuite 2000Cleveland, Ohio 44113Phone: 216.591.0727Fax: 216.591.0740Email: wlslawver(&aol.com

Attorneys forAppellantAshley Berger

Jummera g- w02^aa ia -e'epa. 15The Blumieating Building, Suite 2000, Cleveland, Ohio 44113

DEC 2 6 2006

Tourt of Appea1s of (94toEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 87603

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

ASHLEY BERGER

DEFENDANT-APPELLANT

JUDGMENT:AFFIRMED

Criminal Appeal from theCuyahoga County Court of Common Pleas

Case No. CR-466549

BEFORE: Blackmon, J., Celebrezze, P.J., and Rocco, J.

RELEASED: December 14, 2006

JOURNALIZED: DEC 2 6 2000CA06087603 43076117

1 IIIIII 11111 IIIiI IIIII IIIII INII NIII IIIII IIII IINV06260 ?00866

-i-

ATTORNEYS FOR APPELLANT

William L. SummersEdwin J. VargasSummers & Vargas Co., LPA2000 Illuminating Building55 Public SquareCleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. MasonCuyahoga County Prosecutor

Michael D. HornAssistant County Prosecutor

8th Floor Justice Center

1200 Ontario Street

Cleveland, Ohio 44113

FILED fL ,XEDPER AFP. R. •r,2(E)

DEC 2 6 2006

ANDALI) E. PUEfiSTFAPPEALS

W GOIJC&E R̂dYo

®D12P.

ANNOUNCEMENT OF DECiSiONPER APd'. R. 22)B), 22(D) t1P3D 26(A)

R;+"C:O:;IVED

DEC 14 2006

ALC1 E. F18ER5v6LEPo - E COURY OF APPEAL3

BY GaP,

CA06087603p p 42836166

1 I^^ill 1II11 i^^II 11111 IINN.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D)and 26(A); Loc.App.R. 22. This decision will be journalized and will become thejudgment.and order of the court pursuant to App.R. 22(E) unless a motion forreconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days ofthe announcement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this court's announcementof decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1).

4@626 P8Q867

-1-

PATRICIA ANN BLACKMON, J.:

Appellant Ashley Berger appeals her convictions for voluntary

manslaughter, involuntary manslaughter, and aggravated assault. She assigns

the following three errors for our review:

"I. The honorable common pleas court erred when itprecluded the appellant from testifying as to the threats madeto her by the decedent."

"II. The honorable common pleas court erred when it failedto instruct the jury that the appellant had no duty to retreatfrom her porch."

"III. The honorable coinmon pleas court erred when it failedto instruct the jury that the appellant had no duty to retreatwhen she acted in defense of her family."

Having reviewed the record and pertinent law, we affirm Berger's

convictions. The apposite facts follow.

The Cuyahoga County Grand Jury indicted Berger on two counts of murder

and four counts of felonious assault. The indictments arose from a confrontation

between Berger and Christina Barkley, which ended when Berger stabbed

Barkley's sister, Vanessa McMorick, in the chest, causing her death. She also

stabbed Christina Barkley in her back shoulder.

The evidence at trial indicated that Berger and Barkley lived next door to

each other on Crystal Avenue located in Euclid, Ohio. The Berger and Barkley

families were in a state of constant feuding over problems concerning their

0626 F80868

-2-

children. The Euclid police received numerous complaints from both families in

the four months proceeding the fatal altercation. Most of the complaints revolved

around problems between the Berger and Barkley children. The incidents were

of a nonviolent nature except for an incident that took place in February 2005,

when Berger punched Christina Barkley in the face. Barkley did not press

charges. The prosecutor instructed both women to stay away from each other.

On April 27, 2005, Berger's son told her that the Barkley children had

teased him on his way home from the bus stop. As a result, Berger called Euclid

police to file a complaint. When the police arrived, Christina Barkley was not at

home. The police, therefore; spoke with Barkley's boyfriend who was watching

the children. When Barkley arrived home, the boyfriend informed her

concerning what had transpired. Barkley and MclVIorick were in the process of

gettirig back into their vehicle, when Berger's boyfriend, Michael Marcenti

exchanged words with them. As he did so, Barkley's teenage nephew interceded.

The nephew and Marcenti engaged in a physical scuffle; Marcenti placed the

teenager in a headlock.

Christina Barkley and McMorick attempted to pull the men apart. This

prompted Berger's mother and Marcenti's mother to engage in the scuffle.

Berger was watching the altercation. She stated when she saw her father,

Marcenti, and Marcenti's mother get knocked down, she went into the house and

V40626 P0Q869

-3-

retrieved a knife. She emerged from the house with the knife, and while waving

it, she yelled, "Everyone get the [expletive] out of my yard!" Barkley and

McMorick then ran towards her. Berger and her mother proceeded to engage in

a scuffle with them. As they did so, Berger stabbed McMorick seven times, one

of which entered McMorick's chest. Christina Barkley was stabbed in the back.

The women were eventually pulled apart. At that point, the crowd realized

McMorick had been seriously injured and the fighting ceased. McMorick was

taken by EMS to the hospital where she later died. Barkley was treated and

released.

Berger was arrested and transported to the Euclid Police Department.

When the police told Berger about McMorick's death, she stated, "I didn't mean

to do it."

The jury acquitted Berger of the murder counts, but found her guilty of the

inferior offenses of voluntary manslaughter and involuntary manslaughter. The

jury also acquitted Berger of the felonious assault counts, but found her guilty of

the lesser included offense of aggravated assault respective to these counts. The

trial court sentenced Berger to five years in prison.

Victim's Threats

In her first assigned error, Berger contends the trial court erred by not

permitting Berger to testify regarding the substance of the verbal threats made

10626 80870

-4-

by Vanessa McMorick.

In State v, Debo' the court held "[i]t has been laid down as a general rule

that threats of a deceased against the accused are not admissible in evidence

unless such threats were communicated to the accused before the homicide, ***.s2

Here, the alleged threats by McMorick, were made prior to Berger stabbing her.

Therefore, Berger should have been allowed to testify regarding the substance of

the threats.

The State argues the substance of the threats constitutes hearsay.

However, as the court in State v. Goss3 held in addressing a similar case, "[s]ince

the statements were adduced to show the state of mind ofthe deceased or of the

defendant rather than to prove the truth of the matter asserted therein, the

statements were not subject to a hearsay objection." The court explained,

"evidence of both communicated and uncommunicated threats by the deceased

against the defendant are admissible as they bear upon the issue of who was the

aggressor as well as the reality of defendant's peril at the time of the killing.s4

'(1966), 8 Ohio App.2d 325, 327-328.

zId. at 327-328, quoting, 40 Corpus Juris Secundum 1237, Homicide, Section276. See, also, State v. Randle ( 1980), 69 Ohio App.2d 71.

3(March 30, 1978), 10`h Dist. No. No. 77AP-802.

'Id., citing State v. Debo, supra. See, also, State v. Fort (May 10, 1990),Cuyahoga App. No. 56922.

%1@626 ^0087 1

-5-

The cases cited by the State are distinguishable from the instant case,

because they concern statements made by the deceased victim, implicating the

defendant.5 Therefore, in those cases the statements were sought to be

introduced to prove the truth of the matter. That is, that the defendant was the

murderer. In the instant case, the statements were introduced to show Berger's

state of mind.

Although we conclude the trial court erred, we find the error was not

prejudicial because in spite of the trial court's ruling, Berger did testify regarding

the substance of the threats made. She stated on cross-examination: "They came

to me, they started attacking me, and I wasn't going to let them kick my baby out

of me like they said,i6 and "I don't know what they are capable of. They're

threatening to kick my baby out of me, they came on my porch."' She also stated

that because of the threats made by McMorick, and Barkley, she was "scared

that they were going to do something for me [to] lose my child because they were

making threats.s8 Therefore, the jury was aware that both McMorick and

SState v. Collymore, Cuyahoga App. No. 81594, 2003-Ohio-3328; State v.Apanovitch (1987), 33 Ohio St.3d 19.

6Tr. at 991.

'Tr. at 996.

BTr. at 949.

W6Z6 ^^p872

-6-

Barkley were threatening to injure her unborn child.

Moreover, Berger's counsel was also permitted to argue during closing

argument that Berger used the knife for protection because of the threats made

regarding her unborn child; consequently, no prejudice occurred. Accordingly,

Berger's first assigned error is overruled.

Duty to Retreat Instruction

In her second assigned error, Berger contends the trial court erred by

failing to instruct the jury that she did not have a duty to retreat into her home.

The court in State v. Williford9 held that:

"Under Ohio law, self-defense is an affirmative defense. Statev. Martin (1986), 21 Ohio St.3d 91,21 OBR 386, 488 N.E.2d 166,affirmed Martin v. Ohio (1987), 480 U.S. 228. To establishself-defense, the defendant must show "* * * (1) * * * [he] wasnot at fault in creating the situation giving rise to the affray;(2) * * * [he] has [sic] a bona fide belief that he was inimminent danger of death or great bodily harm and that hisonly means of escape from such danger was in the use of * ** force; and (3) * * * [he] must not have violated any duty toretreat or avoid the danger. * * *" State v. Robbins (1979), 58Ohio St. 2d 74, 12 O.O. 3d 84, 388 N.E. 2d 755, paragraph twoof the syllabus. "If the defendant fails to prove any one ofthese elements by a preponderance of the evidence he hasfailed to demonstrate that he acted in self-defense." State v.Jackson (1986), 22 Ohio St. 3d 281, 284, 22 OBR 452, 455, 490N.E. 2d 893, 897, certiorari denied (1987), 480 U.S. 917."

9(1990), 49 Ohio St.3d 247, 249.

1.4,0626 V00873

-7-

In most circumstances, a person may not kill in self-defense if the person

has available a reasonable means of retreat from the confrontation.10 However,

"where one is assaulted in his home, or the home itself is attacked, he may use

such means as are necessary to repel the assailant from the house, or to prevent

his forcible entry, or material injury to his home, even to the taking of life."11

Implicit in this statement of law is the rule that there is no duty to retreat from

one's home.12

We agree with Berger that the case law indicates that the "no duty to

retreat" rule has been extended to the front porch of a home.13 In the instant

case, it is undisputed that no one was attacking Berger inside her home.

However, there is conflicting testimony regarding where the attack occurred

outside of the house. Berger testified the stabbing occurred while the women

were on her front porch. However, the rest of the witnesses testified that the

10Jackson, supra, at 283-284; Robbins, supra, at 79-81; Marts u. State (1875), 26Ohio St. 162, 167-168.

"State v. Peacock (1883), 40 Ohio St. 333, 334.

12 See Jackson, supra, at 284.

13State v. Williford, supra; State v. Jackson, supra; City of Cleveland v.Krakowski (Aug. 17, 2000), Cuyahoga App. No. 76777; State v. Montgomery (Apri130,1999), 2"a Dist. No. 17203; State v. Morgan (June 10, 1998), 3d Dist. No. 17-97-22; Statev. Cole (Jan. 22, 1997), 15` Dist. No. C-950900; State v. Walton (Aug. 2, 1995), 9"' Dist.No. 94CA005940; State v. Napier (1995), 105 Ohio App.3d 713; State v. Copeland (April13, 1993), 10`h Dist. No. 92AP-1486.

0626 Rdp874

-8-

stabbing occurred in front of Berger's window by her front walkway, which is

several feet from her porch. In fact, no blood was found on the porch. There was,

however, a large blood stain on the walkway in front of the home, where the other

witnesses alleged the stabbing occurred. Therefore, the preponderance of the

evidence does not support Berger's contention that the stabbing occurred on the

porch.

Moreover, even if the trial court did err by failing to give an instruction

that Berger did not have a duty to retreat, she would still have not prevailed on

her self-defense claim even if the instruction was given. The "elements of

self-defense are cumulative. *** If the defendant fails to prove any one of these

elements by a preponderance of the evidence [she] has failed to demonstrate that

[she] acted in self-defense.i14

In the instant case, Berger exited her house and observed the struggle

between the families. It was at that time, prior to any threat being issued by

Barkley or McMorick, that Berger made the decision to retrieve a knife from the

kitchen. There is no dispute that no one else had a weapon. When Berger

commenced stabbing with the knife, McMorick, Barkley, and Berger were

engaged in cussing, hair pulling, shoving, and punching. No one was exerting

14State v. Jackson, supra at 284.

U-2626 00875

-9-

lethal force. Thus, Berger had no basis for a "bona fide belief that [she] was in

imminent danger of death or great bodily harm" and could "escape from such

danger" only by using deadly force. In addition, the jury's finding Berger guilty

of involuntary manslaughter, voluntary, manslaughter, and aggravated assault

indicates they concluded Berger acted out of a sudden fit of rage instead of fear.15

In State v. Jackson,ls the Ohio Supreme Court also concluded that the

trial court erred by failing to instruct the jury that the defendant did not have a

duty to retreat from his porch. However, the Court found the error was not

prejudicial because the defendant did not satisfy the other requirements for

self-defense. Likewise, in the instant case, because Berger did not satisfy the

other elements of self-defense, the trial court's failure to instruct the jury that

Berger did not have a duty to retreat from her porch, was not prejudicial error.

Accordingly, Berger's second assigned error is overruled.

Defense of Others Instruction

In her third assigned error, Berger contends the trial court erred by failing

to instruct the jury that Berger did not have a duty to retreat when she was

acting in defense of her family. We disagree,

LSState v.lVlack, 82 Ohio St.3d 198, 201,1998-Ohio-375 ("fear alone is insufficientto demonstrate the kind of emotional state necessary to constitute sudden passion orfit of rage.")

16(1986), 22 Ohio St.3d 281.

A-9 626 P480 87 6

-10-

"If a person in good faith and upon reasonable grounds believes that a

family member is in imminent danger of death or serious bodily harm, such

person may use reasonably necessary force to defend the family member to the

same extent as the person would be entitled to use force in self-defense.s17

In the instant case, the preponderance of the evidence indicates that

Berger's family was not in "imminent danger of death or serious bodily harm."

Although, there was a lot of cussing, shoving, pulling hair, and punching, no one

was in serious danger. In fact, the only people seriously injured from the

altercation were Barkley and McMorick. Also, the Berger family outnumbered

the Barkley family. There were six adults in Berger's family involved in the

altercation compared with two adults and one minor from Barkley's family. It is

also undisputed that no one from the Barkley family had a weapon. Therefore,

because the evidence did not support an instruction on defense of family, the trial

court did not err by refusing to give such an instruction. Accordingly, Berger's

third assigned error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

1'See State u. Williford, supra.

U2626 H0877

-11-

It is ordered that a special mandate be sent to said court to carry this

judgment into execution. The defendant's conviction having been affirmed, any

bail pending appeal is terminated. Case remanded to the trial court for execution

of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

( Mh

FRANK D. CELEBREZZE, JR., P.J., andKENNETH A. ROCCO, J., CONCUR

Y0826 P10878.