State v. Cooper
| Decision Date | 08 May 1980 |
| Docket Number | Nos. 7332,7342,s. 7332 |
| Citation | 63 Ohio Misc. 1,409 N.E.2d 1070 |
| Parties | , 17 O.O.3d 308 The STATE of Ohio v. COOPER. |
| Court | Ohio Court of Common Pleas |
J. Stanley Needles, Pros. Atty., Joseph H. Niemeyer and George Kentris, Findlay, for plaintiff.
Michael J. Malone and Ronald G. Heck, Findlay, for defendant.
On August 15, 1979, Christopher L. Cooper was indicted by the Grand Jury of Hancock County, Ohio, for a violation of R.C. 2913.02, grand theft, case No. 7332. At his arraignment on August 21, 1979, bond of $25,000 was set at the state's request, and the matter continued so that the court would have an opportunity to study the defendant's assertion that he was indigent and, as such, would require court-appointed counsel.
On August 28, 1979, the court found the defendant to be indigent and appointed Mr. Michael Malone and Mr. Robert Fry of this city as defendant's counsel.
Subsequently, on August 30, 1979, the defendant, Christopher L. Cooper, was indicted by the Grand Jury for a violation of R.C. 2903.01, aggravated murder, case No. 7342. On September 4, 1979, the court, having found the defendant indigent in case No. 7332, determined that that finding of indigency applied to case No. 7342 and appointed Mr. Malone and Mr. Fry to represent defendant Cooper in case No. 7342.
Due to Mr. Malone's experience at the Bar, the court specifically placed Mr. Malone in overall charge of the defense. Mr. Fry, due to his relative inexperience at the criminal bar, was held to be junior.
Mr. Cooper, through his counsel, entered a plea of not guilty and not guilty by reason of insanity to case Nos. 7332 and 7342. The court ordered the defendant to the West Central Ohio Forensic Center in Lima, Ohio, for an evaluation. At a subsequent hearing, the defendant was determined to be competent to stand trial.
In March, 1980, the prosecuting attorney of this county applied to the Presiding Judge of this court asking that Mr. Fry be appointed an assistant prosecuting attorney of Hancock County. Without then realizing the ultimate implication, the court signed the order approving the appointment. The court did inquire as to the actual need for an additional assistant prosecuting attorney and when assured of the need, the entry was, as noted, signed by the court.
Mr. Fry did in fact advise Mr. Malone of the conversations he had had with the prosecutor when approached by the prosecutor to accept a position in the prosecutor's office. There is some question about Mr. Malone's reaction to this offer. The reaction is of no importance to the resolution of the issue that arose when Mr. Fry did accept the offer to join the prosecutor's office as an assistant. This also took place in March, 1980. Mr. Fry subsequently resigned from his position as co-counsel with Mr. Malone or defendant's attorney in both of these cases. There was a short period when Mr. Fry was being paid by the county as assistant county prosecutor and was also counsel for the defendant.
Upon Mr. Fry's resignation as defendant's co-counsel, the court appointed Mr. Ronald G. Heck of this city as co-counsel with Mr. Malone. Mr. Malone and Mr. Heck then filed a motion with the court asking for an order disqualifying as counsel for the state of Ohio in these matters, the Prosecuting Attorney of Hancock County, Ohio, and all attorneys and associates of the Prosecuting Attorney of Hancock County, Ohio, either in his public capacity or his private capacity.
Five specific grounds for such motion were set forth in that motion:
(1) Defendant's prior co-counsel, Robert A. Fry, was an active participant in the defense of the defendant, Christopher L. Cooper;
(2) The representation by the state by the Prosecuting Attorney of Hancock County, violates the fiduciary duty owed to the defendant Cooper;
(3) Representation of the state of Ohio by the Prosecuting Attorney of Hancock County, or any of his (now) assistants creates an appearance of impropriety;
(4) Robert A. Fry became an assistant prosecuting attorney of Hancock County, prior to his being released as co-counsel for the defendant Cooper; and
(5) If the Prosecuting Attorney of Hancock County, and his staff are not disqualified from representing the state of Ohio, the violation of a substantial right of the defendant will occur.
Defendant, in his memorandum attached to his motion cites but one Ohio case that addresses the issue only obliquely: White Motor Corp. v. White Consolidated Industries, Inc. (1978), 60 Ohio App.2d 82, 395 N.E.2d 82, a civil case. The parties entered into merger negotiation in 1975. White Consolidated was represented by the Cleveland law firm of Jones, Day, Reavis & Pogue (Jones, Day). The presentation of the merger plan to the Department of Justice was handled on behalf of both corporations by Jones, Day. In 1976, White Consolidated terminated its participation in the merger plan and White Motor sued White Consolidated for breach of the merger agreement. White Consolidated was represented "of counsel" in this present lawsuit by Jones, Day. White Motor moved to disqualify Jones, Day on the ground that Jones, Day had engaged in significant prior representation of White Motor that not only bear a substantial relation to the issue but form a part of the transaction which is the subject of this action. It was also asserted that Jones, Day did not have the approval of their former client and the representation by Jones, Day of White Consolidated created an appearance of impropriety.
The trial court refused to dismiss Jones, Day as counsel and an appeal ensued. The Court of Appeals for Cuyahoga County ruled that the denial of a motion to disqualify counsel was an appealable order, saying that such an order affected a substantial right. (R.C. 2505.02.) The Court of Appeals thus ruled only on the issue of whether the ruling itself was appealable. On the appeal itself, the Court of Appeals for Cuyahoga County, in White Motor Corporation v. White Consolidated Industries, Inc., No. 39295, January 10, 1980, unreported, ruled, through Jackson, J., that to refuse to disqualify counsel under the circumstances set forth in that case was an abuse of discretion on the part of the trial judge, stating in pertinent parts of the syllabus as follows:
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