State v. Trapp

• Decision Date: 22 June 1977
• Citation: 52 Ohio App.2d 189,368 N.E.2d 1278
• Parties: , 6 O.O.3d 175 The STATE of Ohio, Appellee, v. TRAPP, Appellant.
• Court: Ohio Court of Appeals

Page 189

52 Ohio App.2d 189

368 N.E.2d 1278, 6 O.O.3d 175

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

Court of Appeals of Ohio, First District, Hamilton County.

June 22, 1977.

Syllabus by the Court

1. The separate and different treatment of juveniles under the speedy trial requirements of Ohio law has a reasonable and valid basis and is neither arbitrary nor capricious.

2. The denial of a substantial part of a defense counsel's function is as much a denial of counsel to an accused as the total denial of his assistance.

Simon L. Leis, Jr., Pros. Atty., William E. Breyer and William P. Whalen, Jr., Cincinnati, for appellee.

Douglas M. Mansfield, Cincinnati, for appellant.

BLACK, Judge.

Defendant Bryan Gilbert Trapp was indicted separately from his alleged companion James C. Smith, Jr., for offenses which occurred at a United Dairy Farmers store on June 22, 1975. These two were tried jointly. Trapp was found guilty of all four counts in his indictment: rape, aiding and abetting rape, aggravated robbery and felonious assault. He now assigns seven errors, hereinafter designated by Roman numerals. Smith appealed separately from his conviction by the same jury for three offenses arising out of the same circumstances (Case No. C-76135).

I.

"The court erred in overruling Trapp's motion to dismiss for failure to be tried within the time provided by R.C. 2945.71."

Trapp was a juvenile at the time of the alleged offenses, as he was when he was arrested on July 24, 1975. He was brought before the juvenile division and, after the procedures required by R.C. Chapter 2151 were met, he was transferred to the Court of Common Pleas by an order journalized August 7, 1977, fourteen days after his arrest. His joint trial with Smith began October 29, 1975. That was the ninety-seventh day after his arrest, but the eighty-third day after the transfer between courts. Trapp had been held in juvenile detention from the time of his arrest and in jail from the time of his transfer to the Court of Common Pleas.

The first claim presented is that Trapp was entitled to the same rights as an adult and the beginning day under R.C. 2945.71 should be the day of his arrest. However, the Supreme Court has decided otherwise. State ex rel. Williams v. Court of Common Pleas (1975), 42 Ohio St.2d 433, 329 N.E.2d 680, 681. A juvenile is not "a person against whom a charge of felony is pending" until he is transferred to an "adult" court.

The other issue presented is whether this different treatment for juveniles deprived Trapp of the equal protection of the law under the Fourteenth Amendment to the United States Constitution (to which we add Section 2 of Article I of the Ohio Constitution). We conclude that the separate and different treatment of juveniles under the speedy trial requirements of Ohio law has a reasonable and valid basis and is neither arbitrary, artificial nor capricious. We hold that it was not a deprivation of Trapp's constitutional rights to defer counting speedy trial time until his transfer to the Court of Common Pleas.

The provisions for binding a juvenile over to be tried under adult criminal procedures are carefully designed to protect the interests of the minor and the safety of the community. For instance, after a consideration of such matters as probable cause to believe the minor committed the offense; the minor's age and prior juvenile record; the efforts previously made to treat or rehabilitate him; and his family environment and school record, and after mental and physical examinations of the child are conducted, the court must find reasonable grounds to believe that he is not amenable to rehabilitation by juvenile procedures and that the safety of the community requires that he be placed under legal restraint, including (if necessary) a length of time beyond his majority. The juvenile judge should have time to make a careful evaluation and decision. This is a reasonable classification. Compare Porter v. City of Oberlin (1965), 1 Ohio St.2d 143, 205 N.E.2d 363, and State v. Buckley (1968), 16 Ohio St.2d 128, 243 N.E.2d 66.

The first assignment of error is overruled.

II, III, and IV.

"The court erred in denying the motion of Trapp's counsel to withdraw, or to sever Trapp's trial from Smith's trial, and to continue the case for appointment of new counsel.

"The court erred in permitting Trapp to participate in his own defense over the objections of counsel.

"The court erred in overruling Trapp's motions for a mistrial."

At the beginning of the second day of the trial, before continuing the voir dire examination which had begun the day before, but out of the hearing of the prospective jurors, Trapp's attorney, George Clark, moved to sever Trapp's trial from Smith's trial; this motion was denied. Clark then moved for permission to withdraw as defense counsel; that motion was also denied.

The reason for these two motions was that Mr. Clark knew that Trapp's alibi defense would require the presentation of perjured testimony or false evidence. Trapp insisted on the presentation of his alibi defense, against the advice of counsel. Reading into the record the specific provisions of several disciplinary rules of the Code of Professional Responsibility that prohibit a lawyer from using perjured testimony or false evidence and from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, and other disciplinary rules which require an attorney's withdrawal if he knows that his continued employment will result in the violation of a Disciplinary Rule, ¹ Mr. Clark stated to the court:

"I am totally unable to proceed in accordance with my duties as an attorney, under the rules laid down by the Supreme Court of the state of Ohio, and in accordance with the oath of office I took. In addition, I am unable to proceed in accordance with my client's wishes. I cannot reconcile the two. * * *

"And I think that if I am forced to go forward that I am placed in the position of either not rendering effective assistance to my client in accordance with his wishes, or being unethical."

The court acknowledged Mr. Clark's right and duty to refuse to participate in the presentation of false evidence, but went on to say that the defendant himself was not prevented from presenting his alibi defense, and that Mr. Clark could cross-examine the state's witnesses and put the state to its proof. Mr. Clark responded that he would not proceed with any testimony on behalf of the defendant, suggesting Trapp might want other counsel. When the court asked Trapp whether he wished to say anything, the defendant replied:

"Well, I feel if I don't get, if I do get another counsel, I'm going to get found guilty anyway because it's too much prejudice in this court room. That's the way I feel about it."

Without any further examination of Trapp or inquiry into his competency to handle his own case, the trial proceeded as the court had directed. Mr. Clark conducted the voir dire examination on behalf of the defendant, Trapp made an opening statement on his own behalf over the objections of Mr. Clark and counsel for co-defendant Smith, and Mr. Clark cross-examined all of the state's witnesses.

At the conclusion of the state's case, Mr. Clark again raised the question of effective assistance of counsel for Trapp. The court responded by saying, in effect, that Mr. Clark should do the best he could under the circumstances. Mr. Clark replied that he declined to advise Trapp as to how to proceed with his defense and raised the question of his competency to conduct his own defense. The court then determined that Trapp understood Mr. Clark's position and that the court would assist Trapp in presenting such witnesses as he desired to call.

The presentation of defense witnesses proceeded on that basis, with the court questioning defense witnesses in accordance with the suggestions made by Trapp within the hearing of the jury. In addition, over Mr. Clark's objections, Trapp was permitted to take the stand on his own behalf, with the court again handling the examination. At the conclusion of all of the evidence, both Trapp and Mr. Clark made closing arguments. ²

At no point did the court obtain from Trapp a waiver of his right to counsel or a consent to the procedure used in the trial. The court conducted no investigation or examination into the competency of Trapp to manage and handle his own defense.

The foregoing review of the record is presented in considerable detail in order to make clear the factual basis upon which our conclusions are reached. We do not intend to infringe upon the wide discretion accorded to trial judges in the management of trials, but constitutional demands of due process and fair trial outweigh, in this case, policies favoring wide judicial discretion and the prompt and efficient dispatch of court business. In particular, we note that the first crucial moment arose prior to the swearing of the jury, before jeopardy attached.

[3,4] We hold that, on this record, defense counsel should have been allowed to withdraw completely from this case, and that the court erred in failing to obtain from the defendant a knowing, intelligent and voluntary waiver of counsel. ³

Mr. Clark spread on the record his specific reasons for requesting withdrawal, and we find that his statements were made in good faith and were amply sufficient to require his withdrawal from the case. ⁴ The Ohio Code of Professional Responsibility clearly prohibits a lawyer from knowingly using perjured testimony or false evidence and from making a false statement of fact. A lawyer has a duty to withdraw if the client persists in such a course. ABA Committee on Ethics and Professional Responsibility, Informal Opinion 1318, January 13, 1975. Compare In re Complaint as to the Conduct of A., Accused (1976), 276 Or. 225, 554 P.2d 479. In Gebhardt v. United Rys. Co. of St. Louis (1920), 220 S.W. 677, the Missouri Supreme Court, in holding that a...