State v. Cowans

• Decision Date: 20 October 1999
• Docket Number: No. 97-1312.,97-1312.
• Parties: THE STATE OF OHIO, APPELLEE, v. COWANS, APPELLANT.
• Court: Ohio Supreme Court

87 Ohio St.3d 68

717 NE 2d 298

THE STATE OF OHIO, APPELLEE, v. COWANS, APPELLANT.

No. 97-1312.

Supreme Court of Ohio.

Submitted December 2, 1998.

Decided October 20, 1999.

Donald W. White, Clermont County Prosecuting Attorney, Daniel J. Breyer, Chief Assistant Prosecuting Attorney, and David H. Hoffmann, Assistant Prosecuting Attorney, for appellee.

Carol A. Wright and Kristin Burkett, for appellant.

ALICE ROBIE RESNICK, J.

We have reviewed the appellant's propositions of law and independently assessed the evidence presented through both the guilt and penalty phases of the trial. Based upon our review, we affirm Cowans's convictions and sentence of death.

I. Request to Replace Appointed Counsel

In his first proposition of law, Cowans claims that a breakdown in communications between him and his court-appointed counsel was so serious as to entitle him to have new counsel appointed, and that the trial court's refusal to do so violated Cowans's Sixth Amendment right to counsel.

The trial court appointed two attorneys, including the Clermont County Public Defender, to represent Cowans. Cowans requested new counsel, claiming that the public defender was pressing an unwanted plea bargain upon him. The trial court granted this first request for new counsel, discharged the appointees, and chose Bruce S. Wallace and Michael P. Kelly to represent Cowans.

At a hearing on February 19, 1997 (about a month before voir dire began), Cowans asked the trial court to appoint new counsel to replace Wallace and Kelly. Cowans explained that he believed Wallace and Kelly thought he was guilty. Cowans also accused Wallace and Kelly of "wanting me to plead guilty and lie * * *." When the court inquired about this allegation, Kelly stated that he and Wallace had never told Cowans that they thought he was guilty, and never asked him to lie:

"[N]ever once has Mr. Wallace or I or Larry [Handorf, the court-appointed defense investigator] advised Mr. Cowans that we think he is guilty. At no time did that phrase ever pass between us. * * * [W]e did what all attorneys do with clients, discuss evidence and discuss theories. * * * We have given him theories of evidence. It is not unusual in theories—approaches to deal with evidence—it is not unusual for attorneys and clients to disagree on approaches, and we have had some differences on approaches. But we have not said those things, nor have we ever asked Mr. Cowans to tell an untruth under oath or any other wise [sic ]."

The trial court found that Cowans's attorneys were representing him diligently, and refused to appoint new counsel "without more reasons" than Cowans had given. Cowans's attorneys informed the court during the hearing that Cowans had "demanded that we file" a motion to withdraw, and that therefore they would do so.

Defense counsel filed a "motion for new counsel" on Cowans's behalf, for the sole reason that Cowans lacked "confidence in his present counsel" and therefore could not "adequately communicate with counsel and assist in the presentation of his case." At a hearing, Kelly informed the court that he and Wallace had visited Cowans in jail to discuss the state's case against him and to propose a defense strategy. Kelly said, "[T]here was a very loudly expressed dispute over some of those items"; after that, Cowans refused to speak to his attorneys except to ask them to file a motion for new counsel.

Cowans told the court that he and his attorneys were "not getting along," and complained that Kelly "would come over to the jail * * * and talk to me about that palm print." Cowans refused to explain further. The trial judge again denied the motion and indicated that he found no substantive reason why counsel should be replaced. Cowans told the court, "I'm not going to cooperate with this man." When the court denied Cowans's request, Cowans asked for a new judge. Cowans also indicated that he could not proceed pro se because he knew nothing about the law.

On March 6, 1997, Kelly and Wallace filed a motion to withdraw on the ground that Cowans had refused to speak with them. This new motion stated that, although counsel had previously believed they could represent Cowans effectively, they could no longer do so. Having just learned of Cowans's incriminating statements to Napier, counsel now believed they could not adequately prepare to rebut that testimony without Cowans's cooperation.

Cowans contends that the trial court should have granted his motion for new counsel or the later motion of Wallace and Kelly to withdraw.

"An indigent defendant has no right to have a particular attorney represent him and therefore must demonstrate `good cause' to warrant substitution of counsel." United States v. Iles (C.A.6, 1990), 906 F.2d 1122, 1130. "[T]he trial judge may * * * [deny the requested substitution and] require the trial to proceed with assigned counsel participating if the complaint * * * is unreasonable." State v. Deal (1969), 17 Ohio St.2d 17, 46 O.O.2d 154, 244 N.E.2d 742, syllabus. The trial court's decision is reviewed under an abuse-of-discretion standard. Iles, 906 F.2d at 1130, fn. 8.

Cowans's chief complaint was that his attorneys thought he was guilty. However, counsel deny ever expressing such a belief to Cowans. Even if counsel had explored plea options based on a belief that Cowans might be guilty, counsel's belief in their client's guilt is not good cause for substitution. "`A lawyer has a duty to give the accused an honest appraisal of his case. * * * Counsel has a duty to be candid; he has no duty to be optimistic when the facts do not warrant optimism.'" Brown v. United States (C.A.D.C.1959), 264 F.2d 363, 369 (en banc),

quoted in McKee v. Harris (C.A.2, 1981), 649 F.2d 927, 932. "`If the rule were otherwise, appointed counsel could be replaced for doing little more than giving their clients honest advice.'" McKee, 649 F.2d at 932, quoting McKee v. Harris (S.D.N.Y.1980), 485 F.Supp. 866, 869.

For the same reasons, counsel's discussion of the palm print with Cowans was not good cause for substitution of counsel. Counsel would have rendered ineffective assistance had they not tried to discuss such important evidence with their client.

Cowans also contends that the trial court should have given him new counsel because his refusal to speak with Kelly and Wallace rendered them unable to properly prepare his defense. Authority exists for the proposition that a "complete breakdown in communication" between the defendant and appointed counsel can constitute "good cause" for substitution. See, e.g., United States v. Calabro (C.A.2, 1972), 467 F.2d 973, 986; cf. Iles, 906 F.2d at 1130, fn. 8 ("total lack of communication" is a factor to be considered in determining whether trial court abused its discretion by denying substitution).

While the court could have found that there had been a "complete breakdown" or "total lack of communication" between Cowans and his counsel at the time counsel filed their motion to withdraw on March 6, the record indicates that this temporary lack of communication did not continue after the motion to withdraw was denied. "[T]he record is replete with references to [counsel's] discussions with the defendant * * *." Iles, supra, at 1132. On March 24, 1997, when the jury was taken to view the crime scene, Cowans waived his right to be present in the following words: "Under the advice of my [c]ounsel, no, I waive that right, sir." This suggests that Cowans regarded his court-appointed attorneys as his counsel and shows that he considered their advice in making this decision.

When Cowans missed part of the voir dire, one of his attorneys later went over the transcript of the missed hearing with him. When Cowans decided not to be present during the adjudication of the prior-conviction specification, counsel told the court that Cowans "was very cooperative * * * and was willing to discuss the matter with [counsel]." On other occasions when Cowans waived his right to be present at hearings, the record indicates that he discussed this decision with counsel. The record also indicates that counsel reviewed the autopsy report with Cowans and discussed with him at length whether he should testify or remain silent. Finally, Cowans and his attorneys discussed "on several occasions" his decisions to waive mitigation, forgo an unsworn statement, and wear his jail uniform to court.

Under the circumstances of this case, we cannot find that the trial judge abused his discretion in denying substitution of counsel. Cowans's first proposition of law is overruled.

II. Search by Parole Officer

When parole officer Higgins searched Cowans's home, she found evidence of his guilt—property stolen from Mrs. Swart. In his second proposition of law, Cowans claims this evidence should have been suppressed. Cowans contends that Higgins's warrantless search of his home violated the Fourth Amendment, because the parole officer was acting on behalf of the police to perform a search that police could not lawfully have performed themselves.

On September 2, 1996, Higgins went to the Clermont County Sheriff's Office to help investigators obtain Cowans's fingerprints. After discussing the fingerprints with Higgins, deputies asked her to come with them to the crime scene. She rode with the deputies, leaving her car behind. Investigator Barry Jacobson went on to Cowans's house; Higgins waited outside Mrs. Swart's house with the other deputies.

When Jacobson returned, he told Higgins and the deputies that he had spoken with Cowans's wife inside the house. Jacobson said he had "looked around" but had seen no incriminating evidence in plain sight. He told Higgins "that they had decided not to conduct any more search [and] didn't think there was anything they could do."

Jacobson also said that Cowans had not come home the night before, and that Cowans's wife had indicated that Cowans might have gone to Kentucky. Higgins found this news "alarming" because she...