FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF
SUMMIT, OHIO CASE No. 15TRD05565
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
BELFANCE, Director of Law, GERTRUDE E. WILMS, Chief
Prosecutor, and BRIAN D. BREMER, Assistant Director of Law,
DECISION AND JOURNAL ENTRY
Appellant, Joseph Pinckney, appeals from his convictions in
the Akron Municipal Court. This Court affirms.
Mr. Pinckney was convicted after a jury trial of drag racing
and driving under suspension.
Mr. Pinckney timely appeals his convictions, raising two
assignments of error.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN, FACED WITH A
POTENTIALLY DEADLOCKED JURY, IT ISSUED COERCIVE AND CONFUSING
JURY INSTRUCTIONS IN VIOLATION OF MR. PINCKNEY'S RIGHTS
TO A FAIR AND IMPARTIAL JURY AND A FAIR TRIAL UNDER THE SIXTH
AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION
AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
At issue in this case are two sets of instructions given to
Mr. Pinckney's jury after the foreperson advised the
court that it had not reached a unanimous verdict. Mr.
Pinckney contends the first instructions were confusing and
the second instructions were both confusing and coercive.
Mr. Pinckney concedes his trial counsel did not object to the
jury instructions, but contends this Court should review this
assignment of error under an abuse of discretion standard
because Mr. Pinkney, himself, objected to the instructions.
The Supreme Court of Ohio has held that while a criminal
defendant has "the right either to appear pro se or to
have counsel, he has no corresponding right to act as
co-counsel on his own behalf." State v.
Thompson, 33 Ohio St.3d 1, 6-7 (1987). "The right
to counsel and the implied right to appear pro se are
independent of each other and may not be asserted
simultaneously." State v. Jackson, 9th Dist.
Summit Nos. 24463, 24501, 2009-Ohio-4336, ¶ 13, citing
State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471,
¶ 32. There is no constitutional right to hybrid
representation. State v. Bloodworth, 9th Dist.
Summit No. 26346, 2013-Ohio-248, ¶ 3, citing
Martin at ¶ 31. In this case, Mr. Pinckney was
represented by counsel throughout the proceedings.
Further, Crim.R. 30(A) states that "[o]n appeal, a party
may not assign as error the giving or the failure to give any
instructions unless the party objects before the
jury retires to consider its verdict, stating specifically
the matter objected to and the grounds of the objection.
Opportunity shall be given to make the objection out of the
hearing of the jury." (Emphasis added.)
Even if this Court were to consider Mr. Pinckney's
comments to the trial court to be an "objection, "
it was raised after the jury had been retired to deliberate.
Moreover, Mr. Pinckney's comments centered on his concern
for fairness, but lacked any specificity as to why the
instructions were unfair.
Based upon the applicable law and the record in this case,
the appropriate standard of review is plain error.
Charge vs. Martens Charge
In State v. Howard, 42 Ohio St.3d 18 (1989), the
Ohio Supreme Court approved a supplemental charge to be given
to juries deadlocked on the question of conviction or
acquittal. Id. at paragraph two of the syllabus. The
charge must be balanced and neutral, and comport with the
following goals: (1) encourage a unanimous verdict only when
one can conscientiously be reached, leaving open the
possibility of a hung jury and resulting mistrial; and (2)
call for all jurors to reevaluate their opinions, not just
the jurors in the minority. Id. at 25.
On the other hand, the Martens instruction "is
appropriately given when it appears to the court that the
jury, after deliberating for a reasonable period of time, is
unable to reach a verdict. The instruction changes the focus
of deliberations by asking the jury to decide whether any
verdict can be reached through ...