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State v. Pinckney

Court of Appeals of Ohio, Ninth District, Summit

May 17, 2017

STATE OF OHIO/CITY OF AKRON Appellee
v.
JOSEPH PINCKNEY Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 15TRD05565

          JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.

          EVE V. BELFANCE, Director of Law, GERTRUDE E. WILMS, Chief Prosecutor, and BRIAN D. BREMER, Assistant Director of Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          CALLAHAN, Judge.

         {¶1} Appellant, Joseph Pinckney, appeals from his convictions in the Akron Municipal Court. This Court affirms.

         I.

         {¶2} Mr. Pinckney was convicted after a jury trial of drag racing and driving under suspension.

         {¶3} Mr. Pinckney timely appeals his convictions, raising two assignments of error.

         II.

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.

         {¶4} 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.

         Standard of Review

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.)

         {¶8} 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.

         {¶9} Based upon the applicable law and the record in this case, the appropriate standard of review is plain error.

         Howard Charge vs. Martens Charge

         {¶10} 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.

         {¶11} 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 ...


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