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State v. Taylor

Court of Appeals of Ohio, Sixth District

July 12, 2013

State of Ohio Appellee
v.
Michael C. Taylor, III Appellant

Trial Court No. CR0201001806

Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.

Mollie B. Hojnicki, for appellant.

DECISION AND JUDGMENT

SINGER, P.J.

{¶ 1} Appellant was indicted in a single-count indictment alleging a violation of R.C. 2903.02(B), murder, with a firearm specification. Appellant appealed his January 30, 2012 judgment of conviction and sentencing and asserts the following assignments of error:

FIRST ASSIGNMENT OF ERROR: The Appellant was denied his right to counsel as guaranteed by the United States and Ohio Constitutions when the court did not grant Appellant's request for new counsel.
SECOND ASSIGNMENT OF ERROR: The trial court abused its discretion in denying Appellant's request for new counsel.
THIRD ASSIGNMENT OF ERROR: The Prosecutor's misconduct denied the Appellant due process of law as guaranteed by the United States and Ohio Constitutions.
FOURTH ASSIGNMENT OF ERROR: The trial court abused its discretion when it instructed the jury on consciousness of guilt.
FIFTH ASSIGNMENT OF ERROR: The evidence at Appellant's trial was insufficient to support a conviction, and Appellant's conviction is against the manifest weight of the evidence.
SIXTH ASSIGNMENT OF ERROR: The Appellant was not afforded effective assistance of counsel as required by the United States and Ohio Constitutions.
SEVENTH ASSIGNMENT OF ERROR: The trial court abused its discretion when it allowed the admission of hearsay evidence over trial counsel's objection.

{¶ 2} In his first assignment of error, appellant argues he was denied his right to counsel as guaranteed by the United States and Ohio Constitutions when the court did not grant his request for new counsel.

{¶ 3} Appellant initially retained counsel the day after he was arraigned. Several months later, the court permitted that attorney to withdraw and the court appointed new counsel to represent appellant. A week prior to trial, the court appointed new counsel to represent appellant, but there is no record of the prior counsel being permitted to withdraw.

{¶ 4} On the morning of trial, appellant orally requested a pretrial in chambers to present his request for the appointment of additional counsel. Appellant's appointed counsel also moved for appointment of co-counsel to serve as second chair, and the court granted the request. The court discussed with appellant the potential sentences he faced and noted that trial had already been delayed several times because appellant wanted to retain private counsel. The court noted appellant's appointed counsel continued to work the case even while appellant sought private counsel, the current appointed counsel never hesitated to ask for continuances if he needed additional time, he has capable co-counsel, he indicated that he was prepared to go to trial, and he had been speaking to appellant on a regular basis. Appellant's appointed counsel stated that he frequently spoke with appellant and they had a good relationship until appointed counsel rendered the opinion appellant should accept the plea offer. While appointed counsel did not believe the plea offer was a great deal, it was at least three years less than the potential minimum sentence which could be imposed upon conviction.

{¶ 5} After informing appellant that the court would not find there had been a miscarriage of representation, the court gave appellant additional time to consult with his appointed counsel. Appellant refused to speak with his appointed counsel asserting that he had never explained how he was going to present the case. At that point, appellant's appointed counsel explained his opinion to accept the plea was solely based upon his legal responsibility to appellant. He promised to represent appellant zealously whatever he decided to do. The court explained that trials do not progress as they do on television because it would not be known until trial how the witnesses would testify and there was no overriding case law that would save the day.

{¶ 6} The right to appointed counsel entitles a defendant to competent, effective legal representation, not the counsel of the defendant's choice or an attorney with whom the defendant can have a harmonious relationship. Morris v. Slappy, 461 U.S. 1, 13-14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). When faced with a timely, good faith motion to appoint new counsel, the trial court must determine the reasons for defendant's dissatisfaction with his current counsel. U.S. v. Iles, 906 F.2d 1122, 1130 (6th Cir.1990). The defendant must also show good cause for substituting new counsel. Id.

{¶ 7} The fact that counsel gave his opinion regarding the strength of the defendant's case or whether the defendant should accept a plea reflects a fulfillment of the duty of appointed counsel, whether the accused wants to hear it or not. State v. Cowans, 87 Ohio St.3d 68, 73, 717 N.E.2d 298 (1999). The defendant is entitled to new appointed counsel on constitutional grounds only upon a showing that there is a "conflict of interest, a cessation of communication, or an irreconcilable conflict which would jeopardize the defendant's right to effective assistance of counsel and lead to an unjust verdict." State v. Love, 6th Dist. No. L-96-156, 1997 WL 133329, *4 (Mar. 21, 1997). See also Glasser v. U.S., 315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942), superseded by rule on other grounds as stated in Bourjaily v. U.S., 483 U.S. 171, 181, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); State v. Coleman, 37 Ohio St.3d 286, 292, 525 N.E.2d 792 (1988); State v. Pruitt, 18 Ohio App.3d 50, 57, 480 N.E.2d 499 (Mar. 21, 1984); and State v. Nickelson, 6th Dist. No. WD-06-023, 2007-Ohio-6367, ¶ 42. If there is no Sixth Amendment violation, substitution of counsel is solely within the discretion of the trial court. United States v. Calabro, 467 F.2d 973, 986 (2d Cir.1972).

{¶ 8} On appeal, appellant argues that there was no relationship between appellant and his appointed counsel because appellant did not even know what kind of defense his appointed counsel intended to use. We find appellant's arguments are unsupported by the record. Appellant's counsel indicated that he had discussed the case with appellant. Appellant was given time to obtain retained counsel. Appellant had cooperated with his appointed counsel until he advised appellant to accept the plea offer. On the morning of trial, appellant's counsel assured appellant that counsel would work zealously to defend him if he chose to go to trial. The judge concluded that appellant was actually upset because the day of trial had finally come. We agree with the trial judge that this was not a type of case where there was any unique defense other than to ensure the prosecution established its case. We find there was no constitutional deprivation of appellant's right to effective assistance. Appellant's first assignment of error is not well-taken.

{¶ 9} In his second assignment of error, appellant argues that the trial court abused its discretion in denying appellant's request for new counsel.

{¶ 10} We review the decision of the trial court denying substitution of appointed counsel under an abuse of discretion standard. State v. Murphy, 91 Ohio St.3d 516, 523, 747 N.E.2d 765 (2001). An abuse of discretion is more than a mere error in judgment; it suggests that a decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-58, 404 N.E.2d 144 (1980).

{¶ 11} We find that the trial court did not abuse its discretion by denying the motion. Appellant's second assignment of error is found not well-taken.

{¶ 12} In his third assignment of error, appellant argues the prosecutor's comments during opening and closing arguments constituted misconduct and denied appellant due process of law as guaranteed by the United States and Ohio Constitutions.

{¶ 13} No objections were made to any of these comments. Therefore, appellant may claim only plain error on appeal and must demonstrate the remarks denied him a fair trial. State v. Wade, 53 Ohio St.2d 182, 373 N.E.2d 1244 (1978), paragraph one of the syllabus, certiorari granted and judgment vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157. See also Crim.R. 52(B). A finding of plain error is made only in exceptional cases to prevent a manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. We must determine whether the statements constitute misconduct and, if so, whether the prosecutor's actions or comments prejudicially affected appellant's substantial rights. State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 59. However, a trial will not be deemed "unfair if, in the context of the entire trial, it appears clear beyond a reasonable doubt that the jury would have found the defendant guilty even without the improper comments." State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 121.

{¶ 14} During opening arguments, the prosecution is given wide latitude to "inform the jury in a concise and orderly way of the nature of the case and the questions involved, and to outline the facts intended to be proved." Maggio v. Cleveland, 151 Ohio St. 136, 84 N.E.2d 912 (1949), paragraphs one and two of the syllabus. While it is not permissible for a prosecutor to vouch for the credibility of a witness, State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 117, a prosecutor can argue the jury ...


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