State v. Unger, 80-1297

• Court: United States State Supreme Court of Ohio
• Citation: 21 O.O.3d 41,423 N.E.2d 1078,67 Ohio St.2d 65
• Docket Number: No. 80-1297,80-1297
• Parties: , 21 O.O.3d 41 The STATE of Ohio, Appellee, v. UNGER, Appellant.
• Decision Date: 01 July 1981

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

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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.

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

[423 N.E.2d 1080] 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,...