State v. Unger

• Decision Date: 01 July 1981
• Docket Number: No. 80-1297,80-1297
• Parties: , 21 O.O.3d 41 The STATE of Ohio, Appellee, v. UNGER, Appellant.
• Court: Ohio Supreme Court

Page 65

67 Ohio St.2d 65

423 N.E.2d 1078, 21 O.O.3d 41

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

No. 80-1297.

Supreme Court of Ohio.

July 1, 1981.

Syllabus by the Court

The grant or denial of a continuance is a matter that is entrusted to the broad, sound discretion of the trial judge. When a continuance is denied as a consequence of defense counsel's tactical design, a trial court is under no duty to adapt its schedule to accommodate this strategy.

On the afternoon of January 21, 1979, defendant, Jerry Unger, appellant herein, was drinking beer with Rex A. Hopkins at Miller's Bar in Arcanum, Ohio. The victim, Dennis Weaver, arrived at the bar and asked defendant for a ride to Minster, Ohio. Defendant agreed to transport Weaver to Minster and asked Hopkins to accompany them on the trip.

As this trio was driving along, defendant and Hopkins decided, for an inexplicable reason, to kill Weaver. Towards this end, defendant drove to a rustic area along the Stillwater River. There, while defendant repeatedly stabbed the decedent, Hopkins beat him with a tire iron. In an attempt to conceal the body, both men dragged the victim to an outhouse and placed him therein. Hopkins also removed Weaver's wallet.

On the return trip to Arcanum, Unger and Hopkins stopped at a gasoline service station in Pitsburg, Ohio, where they informed one Alvin Bird of the murder which they had just committed. Bird notified a Darke County deputy sheriff of this incident.

In the early morning hours of January 22, 1979, the Darke County deputy sheriff, accompanied by Bird and a Miami County deputy sheriff, searched the aforementioned site of the murder, where they discovered the mutilated body of the victim.

Shortly thereafter, sheriff's deputies from Darke and Miami Counties arrested the defendant at his residence in Darke County, gave him his Miranda warnings and transported him to the Miami County Jail. During a subsequent interrogation by detectives from the Miami County Sheriff's Department, at which defendant was, again, appraised of his Miranda rights, defendant made a full confession pertaining to his participation in Weaver's murder.

Defendant was indicted for aggravated murder, in violation of R.C. 2903.01(A), and, on arraignment, entered a plea of not guilty and not guilty by reason of insanity. Accordingly, the trial court, on March 14, 1979, referred Unger to the Dayton Area Forensic Psychiatry Services, pursuant to R.C. 2945.39, for a psychological examination and determination of his mental condition at the time of Weaver's murder. Defendant was informed by the trial court, simultaneous to this referral, that not only was he entitled to an independent psychiatric evaluation, but also, that he had the option to secure the independent examination at public expense.

On April 11, 1979, five days before his scheduled trial, defendant requested and received a continuance from the trial court, until May 14, 1979, for the reason that another psychiatrist had purportedly agreed to examine him, apparently at the defendant's or his family's expense. This examination never took place, allegedly because the psychiatrist would not perform the examination.

In the interim, Dayton Area Forensic Psychiatry Services issued a report which concluded that defendant, at the time of the murder, was capable of distinguishing right from wrong and that he "engaged in a series of purposive actions which required control and some degree of planning."

On May 9, 1979, five days before the rescheduled trial, defendant requested another continuance for the reason that he needed more time to secure a private, independent psychiatric evaluation. After a hearing, the trial court overruled defendant's motion for this second continuance and the case proceeded to trial. Defendant was convicted of aggravated murder.

The Court of Appeals affirmed this conviction.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

James R. Livingston, Pros. Atty. and Charles H. Sell, Troy, for appellee.

J. Tullis Rogers and Harry R. Reinhart, Columbus, for appellant.

FRANK D. CELEBREZZE, Chief Justice.

In support of his argument that his conviction should be overturned, appellant contends that (1) the trial court abused its discretion in refusing to grant the second continuance; (2) his confession should be suppressed because he was arrested and transported to the Miami County Jail in contravention of R.C. 2935.14; and (3) his automobile was unconstitutionally seized.

The grant or denial of a continuance is a matter which is entrusted to the broad, sound discretion of the trial judge. An appellate court must not reverse the denial of a continuance unless there has been an abuse of discretion. Ungar v. Sarafite (1964), 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921; State v. Bayless (1976), 48 Ohio St.2d 73, 101, 357 N.E.2d 1035. See, also, United States v. Burton (C.A.D.C.1978), 584 F.2d 485, certiorari denied 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34; United States v. Allen (C.A.6, 1975), 522 F.2d 1229, certiorari denied 423 U.S. 1072, 96 S.Ct. 854, 47 L.Ed.2d 82; Giacalone v. Lucas (C.A.6, 1971), 445 F.2d 1238, certiorari denied 405 U.S. 922, 92 S.Ct. 960, 30 L.Ed.2d 793. As the Supreme Court stated in Ungar v. Sarafite, supra, at 589, 84 S.Ct. at 849: "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied."

Appellant urges us to adopt, in reviewing the trial court's exercise of discretion, a balancing test which takes cognizance of all the competing considerations. We wholeheartedly agree. Weighed against any potential prejudice to a defendant are concerns such as a court's right to control its own docket and the public's interest in the prompt and efficient dispatch of justice.

In evaluating a motion for a continuance, a court should note, inter alia : the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case. See United States v. Burton, supra; Giacalone v. Lucas, supra.

We have carefully examined the record in this case and conclude that the trial court lawfully exercised its discretion in refusing to grant the second continuance.

Initially, it should be noted that the appellant was informed, well in advance of any trial date, of his prerogative to have an additional psychiatric examination. Indeed, on March 14, 1979, the trial court expressly advised him as follows: "The defendant is hereby informed that he may have independent evaluation and that if unable to obtain independent expert evaluation, it will be obtained for him, at public expense, if he is indigent." By the time of the request for the second continuance, appellant had had approximately two months to secure his own examination. This he failed to do.

Secondly, less conspicuous but more important is the fact that this delay was occasioned by the defense's tactics, as evidenced by the following statements of defense counsel at the hearing vis-a-vis the second continuance:

"Well, we wanted.... My thinking on this had to do with tactics. I wanted an examination made to be paid by my client, my client's family. I did not want somebody to be paid by the court or by the county. I wanted an evaluation made by somebody being paid by my clients who would be my client's evaluator and who would know where the money was coming from. And I think that's an important consideration at times when there...