State v. Tucker

• Decision Date: 31 March 2016
• Docket Number: No. 13CA010339.,13CA010339.
• Parties: STATE of Ohio, Appellee v. Kareem L. TUCKER, Appellant.
• Court: Ohio Court of Appeals

62 N.E.3d 903

STATE of Ohio, Appellee

v.Kareem L. TUCKER, Appellant.

No. 13CA010339.

Court of Appeals of Ohio, Ninth District, Lorain County.

March 31, 2016.

Allen Vender, Assistant State Public Defender, for Appellant.

Dennis P. Will, Prosecuting Attorney, and Natasha Ruiz Guerrieri, Assistant Prosecuting Attorney, for Appellee.

MOORE

, Judge.

{¶ 1} Appellant, Kareem Tucker, appeals his convictions by the Lorain County Court of Common Pleas. This Court affirms in part and reverses in part.

I.

{¶ 2} In the fall of 2011, a confidential informant working for the Lorain Police Department purchased crack cocaine in a studio apartment on Oberlin Road on three occasions. After the controlled buys were completed, police executed a search warrant of the residence, where they found three guns, a cache of money and crack cocaine, and household items used to deal crack cocaine. Mr. Tucker had been identified by the confidential informant and by the audio recording of the controlled buys. He was charged with four counts of trafficking in drugs in violation of R.C. 2925.03(A)(2)

; possession of drugs in violation of R.C. 2925.11(A) ; two counts of having weapons under disability in violation of R.C. 2923.13(A)(2) ; possessing criminal tools in violation of R.C. 2923.24(A) ; and use or possession of drug paraphernalia in violation of R.C. 2925.14(C)(1). Two firearm specifications were dismissed during the course of the proceedings.

{¶ 3} Mr. Tucker filed numerous documents on his own behalf maintaining that he was not subject to the jurisdiction of the Court and asserting his status as a sovereign citizen of “Moorish Native American” heritage. Mr. Tucker continued to make these assertions in court during pretrial appearances. He requested—then asked the court to remove—appointed counsel. Ultimately, the Court permitted him to represent himself when the case proceeded to a jury trial. The jury found him guilty of all of the charges against him, and the trial court sentenced him to a total prison term of thirteen years and four months, with the prison sentence on all charges running consecutively to each other and to the charges in another case. Mr. Tucker appealed. His five assignments of error are rearranged for purposes of resolution.

II.

ASSIGNMENT OF ERROR II

[MR.] TUCKER WAS ERRONEOUSLY PERMITTED TO STAND TRIAL WHEN THE RECORD REFLECT [S] THAT [MR.] TUCKER DID NOT UNDERSTAND THE PROCEEDINGS AGAINST HIM AND LACKED THE CAPACITY TO CONSULT WITH HIS LAWYER WITH A RATIONAL DEGREE OF UNDERSTANDING, IN VIOLATION OF HIS RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION

[.]

{¶ 4} Mr. Tucker's second assignment of error is that the trial court abused its discretion by failing to sua sponte order Mr. Tucker to undergo a competency evaluation before trial. We disagree.

{¶ 5} “Fundamental principles of due process require that a criminal defendant who is legally incompetent shall not be subjected to trial.” State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995)

. The measure of competency in this context is whether a defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). “[W]hen there is evidence to create a sufficient doubt of a defendant's competency to stand trial, a trial court may be required to conduct further inquiry on the question and a trial court must always be alert to circumstances suggesting that the accused may be incompetent to stand trial.” State v. Corethers, 90 Ohio App.3d 428, 433, 629 N.E.2d 1052 (8th Dist.1993), citing Drope v. Missouri, 420 U.S. 162, 177, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). “An evidentiary competency hearing is constitutionally required whenever there are sufficient indicia of incompetency to call into doubt defendant's competency to stand trial.” State v. Were, 94 Ohio St.3d 173, 761 N.E.2d 591 (2002), paragraph two of the syllabus.

{¶ 6} R.C. 2945.37

addresses the competency of criminal defendants in Ohio. It provides:

In a criminal action in a court of common pleas, a county court, or a municipal court, the court, prosecutor, or defense may raise the issue of the defendant's competence to stand trial. If the issue is raised before the trial has commenced, the court shall hold a hearing on the issue as provided in this section. If the issue is raised after the trial has commenced, the court shall hold a hearing on the issue only for good cause shown or on the court's own motion.

* * *

A defendant is presumed to be competent to stand trial. If, after a hearing, the court finds by a preponderance of the evidence that, because of the defendant's present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense, the court shall find the defendant incompetent to stand trial and shall enter an order authorized by section 2945.38 of the Revised Code

R.C. 2945.37(B)

, (G). When a trial court is confronted with whether to order a competency hearing sua sponte, “relevant considerations include: (1) doubts expressed by counsel as to the defendant's competence; (2) evidence of irrational behavior; (3) the defendant's demeanor at trial; and (4) prior medical opinion relating to competence to stand trial.” State v. Rubenstein, 40 Ohio App.3d 57, 60–61, 531 N.E.2d 732 (8th Dist.1987)

; Elyria v. Bozman, 9th Dist. Lorain No. 01CA007899, 2002-Ohio-2644, 2002 WL 1263971, ¶ 7. See also

State v. Spivey, 81 Ohio St.3d 405, 410, 692 N.E.2d 151 (1998) (noting that at the plea stage, a trial court is not required to order a competency hearing sua sponte if the record does not reveal indicia of incompetency).

{¶ 7} Mr. Tucker urges us to conclude that the trial court was required to order a competency hearing based upon his lengthy pretrial colloquies with the trial court in which he rejected the jurisdiction of the court, maintained that the case was a commercial matter and that the trial court could not exercise authority over his “trust,” refused to “contract” with the judge, and demanded that the judge place his oath of office on the record. Filings by Mr. Tucker confirm that his statements, although apparently bizarre, are consistent with the political philosophy that he espouses—that he is a “Moorish Native American,” a sovereign individual not subject to the laws or to government institutions. As one court has recognized, individuals who espouse such political philosophies “cling[ ] doggedly to the sovereign citizen script * * *. The colloquy with the court is often characterized by frequent interruptions by the defendant, who attempts to talk over the judge. For the most part, the defendant's statements to the Court are gibberish.” United States v. Cartman, N.D.Ga. No. 1:10–cr–512–01–JEC, 2013 WL 2445158, *2 (June 5, 2013)

.

{¶ 8} Other courts, when faced with similar circumstances, have consistently concluded that while such behavior may reflect unusual beliefs and may go so far as to obstruct trial court proceedings, they are not indicia of incompetency that require a hearing. “[M]erely believing in fringe views does not mean someone cannot cooperate with his lawyer or understand the judicial proceedings around him.” United States v. Gooch, 595 Fed.Appx. 524, 527 (6th Cir.2014)

. Accord

United States v. Landers, 564 F.3d 1217, 1222 (10th Cir.2009) (the defendant's “bizarre behavior” demonstrated not that he was incompetent to stand trial, but that he was “an anti-government protestor * * * engaged in obstructionism[.]”); United States v. Oehler, 116 Fed.Appx. 43, 45 (8th Cir.2004) (concluding that the defendant's “nonsensical statements were simply tax protester rhetoric” and noting that the magistrate had found the defendant “was educated and intelligent, understood the charges against him, had a basic understanding of the criminal process, and had the ability to communicate effectively * * *.”); United States v. James, 328 F.3d 953, 955 (7th Cir.2003) (the fact that a defendant advances unusual political beliefs does not “imply mental instability or concrete intellect * * * so deficient that trial is impossible.”).

{¶ 9} It is worth noting that during the pretrial proceedings, Mr. Tucker opposed two motions made by the State, prevailing in his arguments on one of them. Although he maintained his anti-government rhetoric, Mr. Tucker participated in the proceedings. Given all of Mr. Tucker's statements in their context within the pretrial proceedings, we cannot conclude that there was sufficient indicia of incompetency to require the trial court to sua sponte order a competency evaluation. Mr. Tucker's second assignment of error is overruled.

ASSIGNMENT OF ERROR I

[MR.] TUCKER'S WAIVER OF COUNSEL WAS NOT KNOWING

AND INTELLIGENT WHEN HE DID NOT UNDERSTAND THE FUNDAMENTAL NATURE OF THE PROCEEDINGS AGAINST HIM, IN VIOLATION OF HIS RIGHT TO COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION

[.]

{¶ 10} Mr. Tucker's first assignment of error is that the trial court erred by allowing him to proceed pro se because he did not knowingly, intelligently, and voluntarily waive his right to counsel. We do not agree.

{¶ 11} The Sixth Amendment guarantees criminal defendants not only the right to counsel, but also the right to elect self-representation instead. State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976)

, paragraph one of the syllabus. As Crim.R. 44(A) explains:

Where a defendant charged with a serious offense is unable to obtain counsel, counsel shall be assigned to represent him at every stage of the proceedings from his initial appearance before a court through appeal as of right, unless the

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