State v. Keenan

• Decision Date: 25 February 1998
• Docket Number: No. 96-2311,96-2311
• Citation: 81 Ohio St.3d 133,689 N.E.2d 929
• Parties: The STATE of Ohio, Appellee, v. KEENAN, Appellant.
• Court: Ohio Supreme Court

Page 133

81 Ohio St.3d 133

689 N.E.2d 929

The STATE of Ohio, Appellee, v. KEENAN, Appellant.

No. 96-2311.

Supreme Court of Ohio.

Submitted Oct. 7, 1997.

Decided Feb. 25, 1998.

Paul Mancino, Jr., Cleveland, for appellant.

LUNDBERG STRATTON, Justice.

We have reviewed Keenan's propositions of law, independently weighed the evidence relating to the death sentence, balanced the aggravating circumstance against the mitigating factors, and compared the sentence to those imposed in similar cases. As a result, we affirm the convictions and sentence of death.

I. CHOICE OF COUNSEL

In his first proposition of law, Keenan contends that he was denied his constitutional right to counsel of his choice when the trial judge replaced his retained counsel, Paul Mancino, Jr. and John H. Higgins, with court-appointed counsel on conflict-of-interest grounds.

Higgins had previously represented Keenan's co-defendant, Joseph D'Ambrosio, at his trial for Klann's aggravated murder. D'Ambrosio was convicted, and Mancino represented him on appeal to the court of appeals. Higgins then represented D'Ambrosio on appeal to this court. See State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 616 N.E.2d 909; State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119. The trial court found that Mancino's and Higgins's prior representation of D'Ambrosio created an actual conflict of interest that precluded them from representing Keenan under DR 5-105. ¹

Whether or not an actual conflict of interest existed, there clearly was a potential conflict of interest inherent in Keenan's representation by the same attorneys who had represented D'Ambrosio in litigation stemming from the same set of facts. "[A] possible conflict inheres in almost every instance of multiple representation." Cuyler v. Sullivan (1980), 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333, 346.

In State v. Gillard (1992), 64 Ohio St.3d 304, 595 N.E.2d 878, the same attorney represented two co-defendants at a preliminary hearing, then represented one of them in the trial, even though the other one testified on behalf of the defense. On those facts, we held that "there is a clear possibility of conflict of interest" and that the trial court, on being apprised of these facts, knew or should have known "that a possible conflict of interest existed which could affect [defense counsel's] representation of appellant." Id. at 312, 595 N.E.2d at 883. See, generally, State v. Dillman (1990), 70 Ohio App.3d 616, 621-623, 591 N.E.2d 849, 852-853.

The existence of a potential conflict is fatal to Keenan's claim. A trial court "must be allowed substantial latitude in refusing waivers of conflicts of interest not only * * * where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict * * *." Wheat v. United States (1988), 486 U.S. 153, 163, 108 S.Ct. 1692, 1699, 100 L.Ed.2d 140, 151. Thus, "the standard of review for determining whether the court erred in its pretrial disqualification of defense counsel is whether it abused its broad discretion." State ex rel. Keenan v. Calabrese, 69 Ohio St.3d at 180, 631 N.E.2d at 122.

Keenan claims that a criminal defendant has an "unqualified" constitutional right to retain counsel of one's choice. There is no such right. A defendant has only a presumptive right to employ his own chosen counsel. "[T]hat presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict." Wheat, 486 U.S. at 164, 108 S.Ct. at 1700, 100 L.Ed.2d at 152.

The trial judge has "wide latitude" in determining that an actual or potential conflict exists. United States v. Mays (C.A.6, 1995), 69 F.3d 116, 121. Moreover, it is irrelevant that both Keenan and D'Ambrosio waived their right to conflict-free counsel. Wheat makes clear that the trial court may "refus[e] waivers of conflicts of interests * * *." 486 U.S. at 163, 108 S.Ct. at 1699, 100 L.Ed.2d at 151.

"The term 'abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 149. There is nothing in this record that could justify us in finding that the trial judge abused his discretion by disqualifying Mancino and Higgins. Therefore, we must overrule Keenan's first proposition of law.

II. SELF-REPRESENTATION

Although represented by (appointed) counsel, Keenan filed a pro se motion asking the court to let him act as "co-counsel." The trial court granted this motion in part and denied it in part, permitting Keenan to examine witnesses, but not to argue to the jury. In his second proposition of law, Keenan claims that the trial court deprived him of his constitutional right to self-representation by denying him leave to argue to the jury.

A criminal defendant does have a constitutional right to represent himself. Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. Moreover, when the defendant conducts his own defense, his right of self-representation includes the right to personally argue to the jury. Herring v. New York (1975), 422 U.S. 853, 864, 95 S.Ct. 2550, 2556, 45 L.Ed.2d 593, 602, fn. 18; McKaskle v. Wiggins (1984), 465 U.S. 168, 174, 104 S.Ct. 944, 949, 79 L.Ed.2d 122, 131.

However, Keenan never asked to be allowed to argue to the jury. Indeed, he affimatively stated to the trial judge that he was not asking permission to argue to the jury. Keenan's statement clearly constitutes a waiver.

Nor did Keenan invoke his right to self-representation. His motion specifically asked leave to participate as "co-counsel" and did not request the discharge of his appointed counsel. ² A defendant has no right to a "hybrid" form of representation wherein he is represented by counsel, but also acts simultaneously as his own counsel. McKaskle, 465 U.S. at 183, 104 S.Ct. at 953, 79 L.Ed.2d at 136; State v. Thompson (1987), 33 Ohio St.3d 1, 6, 514 N.E.2d 407, 414. Yet hybrid representation was precisely what Keenan asked for here. Keenan not only employed the term "co-counsel" repeatedly, he specifically argued that the trial court had discretion to allow hybrid representation.

By permitting Keenan to act as "co-counsel" for the purpose of examining witnesses, the trial judge gave Keenan all that he asked for (and more, incidentally, than he had any right to demand). Keenan's second proposition of law is waived, and for that reason we overrule it.

III. DATE OF OFFENSE

In his third proposition of law, Keenan contends that the prosecutor "constructively amend[ed] the indictment" by arguing to the jury that the state need not prove the exact date of the offense. However, all four counts of the indictment allege that Keenan committed the charged offenses "on or about " September 24, 1988. Hence, the prosecutor's argument conformed to the indictment. Nor did the prosecutor's argument deprive Keenan of fair notice of the charges, since essentially the same dispute over the date took place at his first trial. See State v. Keenan, 66 Ohio St.3d at 411, 613 N.E.2d at 210. Keenan's third proposition of law lacks merit.

IV. UNRECORDED SIDEBARS

In his fourth proposition of law, Keenan complains that the trial court denied his pretrial motion to record all sidebars, and held forty-seven unrecorded sidebars during trial. Under Crim.R. 22, all proceedings in serious offense cases must be recorded, including sidebars. See State v. Brewer (1990), 48 Ohio St.3d 50, 60-61, 549 N.E.2d 491, 502. However, Keenan did not attempt to use App.R. 9 to reconstruct the content of the unrecorded sidebars and show prejudice. Hence, "the error may be considered waived." Brewer. See, also, State v. Tyler (1990), 50 Ohio St.3d 24, 41-42, 553 N.E.2d 576, 596; State v. Jells (1990), 53 Ohio St.3d 22, 32, 559 N.E.2d 464, 474.

V. LESSER INCLUDED OFFENSE

At trial, the defense requested an instruction on murder as a lesser included offense of aggravated murder under Count One. Count One charged prior calculation and design under R.C. 2903.01(A), and Keenan argued that the jury could reasonably find "that there was no plan." The trial court found the evidence did not support a murder instruction and therefore refused to give one.

In his twenty-second proposition of law, Keenan argues that the trial court should have instructed on murder as to Count One.

Keenan presented an alibi defense. Ordinarily, where a defendant presents a complete defense to the substantive elements of the crime, such as an alibi, an instruction on a lesser included offense is improper. See, e.g., State v. Strodes (1976), 48 Ohio St.2d 113, 117, 2 O.O.3d 271, 273, 357 N.E.2d 375, 378, vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1154. In such a case, the defendant is entitled to a lesser included offense instruction only "if, based on the evidence adduced by the state, the trier of fact can find for the defendant * * * on some element of the greater offense which [sic] is not required to prove * * * the lesser offense and for the state on the elements required to prove * * * the lesser offense." State v. Solomon (1981), 66 Ohio St.2d 214, 20 O.O.3d 213, 421 N.E.2d 139, paragraph two of the syllabus. Hence, Keenan was entitled to a murder instruction only if the jury, viewing the evidence in the light most favorable to the defense, could have had a reasonable doubt as to prior calculation and design, but yet could have found that Keenan purposely killed Klann.

There was in this case no evidence at all to permit such a finding. Espinoza's testimony, if believed, clearly shows prior calculation and design. According to him, Keenan drove his truck around Little Italy and interrogated Klann while his henchmen held Klann prisoner at knifepoint. Keenan ultimately drove...