State v. Carter

• Decision Date: 16 March 1977
• Citation: 53 Ohio App.2d 125,372 N.E.2d 622
• Parties: , 7 O.O.3d 90 The STATE of Ohio, Appellee, v. CARTER et al., Appellants. *
• Court: Ohio Court of Appeals

Page 125

53 Ohio App.2d 125

372 N.E.2d 622, 7 O.O.3d 90

The STATE of Ohio, Appellee, v. CARTER et al., Appellants. ^*

Court of Appeals of Ohio, Fourth District, Scioto County.

March 16, 1977.

Syllabus by the Court

1. A defendant in a criminal case does not have a constitutional right, either under the United States or Ohio Constitutions, to hybrid representation wherein representation is in part by the defendant and in part by appointed counsel.

2. A defendant in a criminal case has the right to appear at trial without shackles or other physical restraint except when the court, in the exercise of a sound discretion, determines such restraint is necessary for a safe and orderly progress of the trial.

3. When the court determines a defendant should be placed under physical restraints during trial, the factors upon which the court bases its determination are required to be set forth in the record to assure effective appellate review.

Christopher D. Stanley, Cleveland, for appellants.

Lynn Grimshaw, Portsmouth, for appellee.

STEPHENSON, Judge.

This is an appeal from judgments of conviction entered by the Scioto County Court of common Pleas upon jury verdicts returned in a joint trial finding William Carter and Samuel Bernard, Jr., appellants herein, guilty of attempted escape, a fourth degree felony, in violation of R.C. 2921.34(A). Pursuant to subdivision (C) of that statute, appellants were sentenced to a term of two to five years to be served consecutively to their present sentence. The following errors are assigned:

"I. The trial court erred when it took away from the defendants the right to defend themselves.

"II. Shackling of the defendants during the course of the trial before the jury was a violation of the defendants rights under the due process clause of the fourteenth amendment.

"III. The trial court erred when it overruled defendants motion for a change of venue.

"IV. The trial court coerced the jury into reaching a verdict after it reported that it could not reach a decision."

By a supplemental brief, an additional argument is asserted, although not formalized into a specific assignment of error, that the court erred by instructing the jury that the burden of proof with respect to the affirmative defense of duress was upon the appellants.

The record reflects that appellants were inmates of the Southern Ohio Correctional Facility, a maximum security penal institution of the state of Ohio. Prior to trial, it was stipulated by the parties that the alleged offense occurred on May 18, 1975, in Scioto County and that appellants were under lawful detention and such was known by appellants. At trial appellants did not contest the evidence of the state that they and other inmates had escaped from their place of confinement through a window and were outside of a penitentiary building, but inside the outer fence surrounding the institution, when apprehended. While appellants conceded they had escaped, they asserted the defense of duress as justification. All of the defense evidence was upon that issue and the defense of duress was submitted to the jury with the burden to establish it being placed, in the court's charge, upon the appellants. No objection was interposed with respect to the charge upon that issue.

The thrust of the first assignment of error is that appellants were denied the constitutional right of self representation under Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. The record reflects that as early as August 29, 1975, an attorney, Christopher D. Stanley, had appeared as counsel of record for appellants and participated in stipulation, discovery and subpoena procedures.

On September 10, 1975, appellants filed a motion, while purporting to reserve the right to represent themselves, to appoint Mr. Stanley as counsel. At the beginning of trial, on September 8, 1975, Mr. Stanley was appointed by the court and a journal entry of the appointment was filed on September 10, 1975. In the colloquy at the beginning of the trial appellants sought an appointment of counsel because of indigency, but expressed a desire to participate with their counsel in the questioning of witnesses and jurors. The court, although attempting to persuade appellants otherwise, granted the motion.

The voir dire examination was conducted by the court, then by the state followed by Mr. Stanley. Thereafter, both appellants questioned the prospective jurors. The questions by appellants were, in the main, repetitive of questions already asked and many were immaterial to the qualifications of the prospective jurors to sit as fair and impartial jurors. After an extensive voir dire examination had proceeded as set forth above, incorporated into approximately three hundred pages of transcript, the trial court withdrew the right of appellants to personally participate further in the voir dire examination. Additionally, the court refused thereafter to allow appellants to question witnesses in addition to the examination by their attorney. Appellants were permitted to personally participate in closing arguments.

It is apparent from the record that appellants desired the advantage of active participation by appointed counsel in their defense in addition to self-representation. In short, appellants were seeking hybrid representation. Although counsel for appellants now asserts that his was to be a "stand-by" role, his pre-trial and trial participation belies that characterization of his intended role. Their reliance upon Faretta v. California, supra, for authority to sustain their claim is misplaced.

Faretta v. California, supra, held only that the Sixth Amendment to the United States Constitution guarantees to a defendant in a state criminal trial the right to defend himself without counsel, and that where a defendant voluntarily and intelligently waives his right to counsel, the state may not force counsel upon him. It was emphasized that Faretta "weeks before trial * * * clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel," and, consequently, the trial court erred in forcing him "to accept against his will a state-appointed public defender * * *." The federal courts, both prior to and subsequent to Faretta, have held that an accused may elect to defend himself or elect to defend by counsel, but has no right statutorily or under the United States Constitution to hybrid representation. United States v. Hill (C.A.10, 1975), 526 F.2d 1019; United States v. Wolfish (C.A.2, 1975), 525 F.2d 457; Lee v. Alabama (C.A.5, 1968), 406 F.2d 466; United States v. Swinton (S.D.N.Y.1975), 400 F.Supp. 805. Likewise, state courts have denied the right of such representation and this represents the overwhelming weight of authority. 23 C.J.S. Criminal Law § 979(4), p. 927; 21 American Jurisprudence 2d 336, Criminal Law, Section 31; annotation, 77 A.L.R.2d 1233, Section 4. Further, it has been held that a state constitutional provision, such as Section 10, Article I, of the Ohio Constitution, which provides for an accused to "defend in person and with counsel" does not require hybrid representation. Miller v. State (1970), 86 Nev. 503, 471 P.2d 213; State v. Velanti (Mo.1960), 331 S.W.2d 542; State v. Thomlinson (1960), 78 S.D. 235, 100 N.W.2d 121.

The court below did allow appellants to argue to the jury. Conceivably, this was because of the first paragraph of the syllabus in Shelton v. State (1921), 102 Ohio St. 376, 131 N.E. 704, which states:

"It is the privilege of an accused upon trial to argue to the jury in person or by counsel every controlling fact which the evidence tends to support, and every reasonable inference therefrom touching the question of his guilt or innocence, or which may tend to mitigate or lessen the penalty, where the jury are empowered to fix such penalty." (Paragraph one of the syllabus.)

The syllabus of a case must be read in light of the facts. Under the facts in the opinion, the question in issue was one only of the extent of proper argument by counsel. Hence, it is not controlling on the question of participation by both counsel and the accused.

Since appellants had no right of participation in the trial when represented by counsel, the court in exercising its discretion in initially allowing participation and subsequently denying such right did not commit error. The first assignment of error is overruled.

We find no error in the refusal of the trial court to grant a change of venue from Scioto County and the third assignment of error is overruled. Appellants filed a pretrial motion for such change which was not ruled upon until the voir dire examination was nearly complete. The initial motion was conclusionary in form and was not supported then, or at the time of voir dire examination, by any evidence as to the nature, extent, duration and intensity of the news coverage from the institution. Hence, the case is distinguishable at the outset from Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, where the scope and intensity of news coverage prior to and during trial was such that there was little likelihood of a fair and impartial trial.

The voir dire transcript reflects that the knowledge gained by prospective jurors from pre-trial publicity was scanty at best, and all of the jurors finally selected affirmatively stated that they could decide the case fairly and impartially upon the trial evidence. It appears further from the transcript that the trial judge was extremely liberal in excusing any juror who voiced the slightest doubt of their impartiality. In State v. Fairbanks (1972), 32 Ohio St.2d 34, 289 N.E.2d 352, the following was stated:

"A change of venue rests largely in the discretion of the trial court, and there are numerous cases holding that appellate courts should not disturb the trial court's ruling on a motion for change of venue in a criminal case unless it is...