Trial Court No. CR0201201487
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Deborah Kovac Rump, for appellant.
DECISION AND JUDGMENT
(¶ 1} This is an appeal of a trial court's pretrial ruling removing a criminal defendant's retained counsel of choice. The judgment is subject to immediate appeal. State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785, 947 N.E.2d 651, syllabus.
(¶ 2} Jordan Byrd is the appellant. He appeals a September 17, 2012 judgment of the Lucas County Court of Common Pleas that disqualified his retained attorney, Lorin Zaner, from continuing to represent him in this case. The judgment granted a motion by the state to disqualify Mr. Zaner as counsel. Appellant's brother, James Byrd, and sister, Larrissa James, are co-defendants.
(¶ 3} The criminal charges against the defendants are under a March 29, 2012 indictment. The indictment charges appellant with four counts of rape and a single count of gross sexual imposition. It charges James Byrd with four counts of rape, one count of gross sexual imposition, and one count of disseminating matter harmful to juveniles and Larrissa James, with three counts of gross sexual imposition. The alleged victim is the defendants' niece.
(¶ 4} Mr. Zaner entered an appearance on behalf of all three defendants on April 17, 2012, and contemporaneously filed a motion on behalf of all defendants "to sever trials to permit each defendant to be tried separately." The trial court denied the motion to sever after a hearing on April 27, 2012.
(¶ 5} At the hearing on the motion to sever, the prosecutor stated that the charges include 14 separate criminal offenses occurring between September 2009 and November 2009, eight of which are rapes, five of which are gross sexual imposition, and one of which is disseminating matter harmful to juveniles. According to the state, the 14 offenses allegedly took place in separate areas of the same house, the respective bedrooms of each defendant. The alleged victim's age during the period ranged from seven to nine years of age.
(¶ 6} The state disclosed that each defendant denied any knowledge of wrongdoing by the other defendants and the alleged victim denied telling the defendants what the others were doing. The prosecutor also stated that one defendant had denied all criminal wrongdoing and that the case may involve plea negotiations with that defendant.
(¶ 7} During the hearing, the trial court discussed with Mr. Zaner its concern over whether potential conflicts of interest were presented in the case and that Mr. Zaner could not represent all three defendants should the motion to sever be denied. After the court denied the motion to sever, Mr. Zaner advised the trial court that he would continue to represent only one of the defendants and that the other two would require appointed counsel.
(¶ 8} The case proceeded to a hearing on May 2, 2012, for appointment of counsel and arraignment. On that date Mr. Zaner advised the court that he would continue to represent Jordan Byrd. The court appointed attorney David Klucas to represent James Byrd and attorney Sarah Roller to represent Larrissa James. The court then proceeded with arraignments of the defendants.
(¶ 9} After the appointment of separate counsel for James Byrd, Mr. Zaner spoke directly by telephone to him on May 11, 2012. The communication was without the knowledge or authorization of James Byrd's attorney, David Klucas, and the subject matter included Mr. Zaner's dissatisfaction with Mr. Klucas, the need for James Byrd to secure new counsel, and need for Mr. Byrd's attorney to work with Mr. Zaner in defense of the case.
(¶ 10} The state filed a motion to disqualify Mr. Zaner from further representation of appellant on June 21, 2012. The matter was fully briefed by the parties. The trial court conducted an evidentiary hearing on the motion on August 27, 2012. In an opinion and judgment filed on September 17, 2012, the court granted the motion to disqualify. Jordan Byrd appeals the judgment and asserts three assignments of error on appeal:
Assignment of Error I: This Court should undertake de novo review of the trial court's granting of the state's motion to disqualify Jordan Byrd's counsel because the trial court did not properly apply the law. Alternatively, Byrd believes that the trial court abused its discretion by ordering the disqualification of his trial counsel (Lorin Zaner).
Assignment of Error II: The state filed the motion to disqualify. It was not filed by Jordan Byrd or either of his co-defendants. The state is using the motion as a tactical device to remove Zaner from the case. Because this ultimately involves a potential conflict of interest, the state has no standing. Even under the case relied upon by the trial court, the state would only have standing if the trial court entered a decision as to whether trial counsel could testify.
Assignment of Error III: Byrd has a constitutional right to counsel of his choice. Denying that right is a structural error, not subject to a harmless error analysis. The state failed to meet its burden to establish why Byrd should not be permitted counsel of his choice, and the trial court failed to properly and completely address this in its decision. In doing so, his constitutional rights were violated.
May 11, 2012 Telephone Conference
(¶ 11} At all times relevant, James Byrd has been incarcerated, pending trial, in the Lucas County Corrections Center. By stipulation of the parties, audio recordings and transcripts of four telephone calls made by James Byrd from the jail to his mother, Laura, on May 10 and 11, 2012, were placed in evidence for consideration by the trial court in its ruling on the motion to disqualify. The four recordings all begin with an announcement to participants that the telephone call was from an inmate at the Lucas County Corrections Center and that the call may be monitored and recorded.
(¶ 12} Working from a transcript and audio recording, the trial court found in its judgment that the following telephone conversation occurred on May 11, 2012 between James Byrd, his mother Laura and attorney Lorin Zaner:
Laura: Okay. Well, Lorin is right here. I - hold on minute, I'm going to go in the office with Lorin and put you on speaker phone, okay? Hold on.
James: Okay. Laura: Are you there? James: Yeah.
Laura: Okay. Go ahead.
James: He just made a couple of statements that I didn't like and – when I was sitting up there at – where I was sitting. He just – in the beginning before you guys told me to even say anything, I want to, but ...