State v. Cecil L. Russell
| Decision Date | 30 June 1998 |
| Docket Number | 97 CA 37,98-LW-2606 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. CECIL L. RUSSELL, Defendant-Appellant Case |
| Court | United States Court of Appeals (Ohio) |
COUNSEL FOR APPELLANT:[1] Thomas L. Cornn, 8 North Court Street Athens, Ohio 45701.
COUNSEL FOR APPELLEE: Michael A. Prisley, Assistant Athens County Prosecuting Attorney, Athens County Courthouse, Athens, Ohio 45701.
DECISION
This is an appeal from an Athens County Common Pleas Court
judgment of conviction and sentence. The jury found Cecil L. Russell defendant below and appellant herein, guilty of: (1) aggravated trafficking in drugs (R.C. 2925.03(A)(1)); (2) having a weapon while under a disability (R.C 2923.13(A)(2)and (3))with a prior offense of violence specification (R.C. 2941.143) and a firearm specification (R.C. 2941.141); and (3) drug abuse with a prior offense of violence specification (R.C. 2941.143) and a firearm specification (R.C. 2941.141).
Appellant raises the following assignments of error.
Our review of the record reveals the following facts relevant to the instant appeal. On March 8, 1996, at approximately 6:30 p.m., Southeast Counties of Ohio (DECO) Narcotics Task Force Agent Anthony Forrest,[2] in an undercover capacity, was investigating allegations that certain individuals were selling narcotics out of the motel rooms at the Highlander Motel. When Agent Forrest arrived at the Highlander Motel, he spoke with David Maxwell and asked Maxwell if he knew where the agent could purchase marijuana and crack cocaine.
Maxwell advised Agent Forrest that he could purchase crack cocaine in room 21. Maxwell took Agent Forrest to room 21, the room in which appellant was staying. When Agent Forrest entered room 21, appellant was lying on the bed. Appellant asked the agent if he could "handle [a] fifty," referring to a fifty dollar piece of crack cocaine. Agent Forrest responded that he could, and appellant reached for the nightstand where the drugs were located. While appellant was gathering the drugs for Agent Forrest, the agent noticed appellant push a handgun out of the way. After appellant had removed the drugs from the nightstand, he handed them to Maxwell and told Maxwell that a razor blade was on the dresser.
Maxwell cut the pieces of crack cocaine and handed Agent Forrest the drugs. Appellant approached Agent Forrest with a plastic bag. Agent Forrest placed the drugs that he had purchased inside the bag and took the bag from appellant. Before Agent Forrest left the room, appellant told the agent that if he needed anything else, call room 21 and "make sure [to] ask for [appellant]."
After Agent Forrest purchased the drugs, he filled out a "supplemental surveillance report" and contacted Olen Martin, his supervisor, to prepare a search warrant for appellant's motel room.
Jackson County Sheriff Officers assisted in executing the search warrant. Prior to executing the warrant, the law enforcement officers underwent a briefing. The officers were informed that appellant had a weapon in proximity to his person, that appellant had a past violent criminal history, and that appellant was suspected of selling crack cocaine, a readily disposable narcotic.
Jackson County Sheriff Greg Kiefer assisted in executing the search warrant for room 21. When he arrived at the door to room 21, he announced his presence and intention to search the room. After three to five seconds had elapsed, Sheriff Kiefer heard no response. Sheriff Kiefer then elected to force his way into the motel room. When the law enforcement officers entered the room, they found appellant and a female seated on the bed. The officers subsequently inventoried the room and discovered, inter alia, a firearm, various drug paraphernalia, and approximately one-half gram of powdered cocaine.
On April 2, 1996, the Athens County Grand Jury returned an indictment, charging appellant with: (1) aggravating trafficking in cocaine with a firearm specification; (2) having a weapon while under a disability with a prior offense of violence and a firearm specification; and (3) drug abuse with a prior offense of violence and a firearm specification.
On August 12, 1996, appellant's counsel, Claire M. Ball, Jr., filed a motion to withdraw as counsel. Attorney Ball requested the court to allow him to withdraw because appellant failed to keep appointments and failed to respond to written correspondence and phone calls. The court, however, delayed ruling on the motion and, finding that appellant violated the conditions of his bond, issued a warrant for appellant's arrest.
On August 22, 1996, the case was scheduled for trial. Appellant, however, failed to appear.
On March 21, 1997, appellant was arrested pursuant to the August 12, 1996 arrest warrant that the court had issued. On March 27, 1997, the court held a hearing to set a new bond and to schedule a new trial date. At the March 27, 1997 hearing, Attorney Ball renewed his motion to withdraw as appellant's counsel, which the trial court granted. The court delayed scheduling a new trial date until appellant secured new counsel. Additionally, at the March 27, 1997 hearing, the trial court ordered appellant's speedy trial time tolled from August 12, 1996 until the new trial date.
On April 18, 1997, the court appointed Herman Carson to represent appellant and scheduled the trial for June 12, 1997. On April 30, 1997, the court, finding that Attorney Carson had a conflict, appointed William Safranek to represent appellant.
On May 27, 1997, Attorney Safranek filed a motion to withdraw as appellant's counsel. In his motion, Attorney Safranek stated that appellant "has rendered it unreasonably difficult for counsel to carry out his employment effectively." Attorney Safranek alleged that his relationship with appellant had become "increasingly adversarial." Specifically, Attorney Safranek stated that appellant felt Attorney Safranek did not truly wish to help him.
On May 27, 1997, Attorney Safranek also filed a suggestion of incompetence to stand trial. Attorney Safranek alleged that appellant appears to have a "certain paranoia" and "an inability to focus on points of importance." Attorney Safranek suggested that appellant may have a mental defect arising from his substance abuse.
On May 29, 1997, the trial court held a hearing regarding Attorney Safranek's motion to withdraw and the suggestion of incompetency. The trial court subsequently denied both motions. With respect to the motion to withdraw, the court found that although appellant and his attorney may disagree as to certain aspects of the defense strategy, the court need not provide appellant with a new attorney simply because appellant and his attorney disagree. With respect to the suggestion of incompetency, the court found that appellant understood the criminal proceedings and could participate in his own defense.
On May 30, 1997, appellant filed a motion to dismiss the charges based upon a violation of his statutory and constitutional rights to a speedy trial. In the motion, appellant first alleged that prior trial counsel, Attorney Ball, falsely alleged that appellant failed to keep appointments and to maintain communication with Attorney Ball. Appellant asserted that he was not at fault in failing to appear for the previously scheduled August 22, 1996 trial date and that the holding of State v. Bauer (1980), 61 Ohio St.2d 83, 399 N.E.2d 556 () is, therefore, inapplicable Contending that he was not at fault, appellant argued that his speedy trial time was not tolled from August 12, 1996 to the date of his re-arrest, March 21, 1997.
On May 30, 1997, appellant filed a motion to suppress all evidence that had been seized as a result of the March 8, 1996 search warrant. Appellant claimed that the law enforcement officers executing the warrant failed to properly...
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