Beck Law Office, L.L.C.

March 16^th, 2012 2^nd District Decisions.  There were only two relevant decisions released this past week.  They are included below. 

State v. Boykin  2012 Ohio 1090

Defendant was convicted at jury trial of Felonious Assault.  Defendant was appointed counsel which he fired and asked for new counsel on the date of the final pretrial.  New counsel was granted and the trial was continued.  New counsel was appointed and a second final pretrial was held.  On the day of trial Defendant tried to ask for a new attorney and the judge denied his request.  Defendant then made numerous statements about wanting to fire counsel and represent himself.

Defendant appeals his conviction citing two errors:

1.       The Trial Court erred in not letting him represent himself.

a.       “the constitutional right of self representation is waived if not timely and unequivocally asserted.” State v. Cassano 96 Ohio St. 3d 94.  The decision in the current case quotes the exchange between Defendant and Judge Hall.  COURT OF APPEALS- finds that the request was not timely and was not unequivocal. 

2.       The Trial Court erred in not granting a new trial based on juror misconduct.

a.       Defendant claims that the trial court should have granted a new trial because after the trial his brother told him that he knew juror number 12 and that juror number 12 probably knew Defendant.  Juror misconduct must be affirmatively proven and there was no evidence provided of actual knowledge or any bias. 

MORAL OF THE STORY:  If you click on the title of this case you can read the opinion.  I suggest reading the exchange between Judge Hall and Defendant and believe that it seemed pretty unequivocal to me.  Apparently saying “ill represent myself” isn’t unequivocal enough. 

State v. Callahan 2012 Ohio 1092

Defendant was convicted by a jury of Aggravated Burglary and sentenced to 8 years.  Defendant went over to his ex-girlfriend’s house and kicked in the door and assaulted her and her new boyfriend.   Further background shows that the Defendant won a motion to suppress his statements at the police station.  Defendant also beat the State’s attempt to amend the indictment in the middle of trial from listing the new boyfriend as victim to ex-girlfriend and/or new boyfriend.  Ex-girlfriend also had a restraining order against Defendant.  Defendant claims three errors:

1.       Manifiest Weight -  Defendant contends that the jury should have believed his side of the story that he was invited over to the apartment and that he broke down the door because he was worried for his exgirlfriends safety. 

a.       He testified to all that and jury could have believed it if they wanted but didn’t.

2.       Sufficiency – same as above

3.       Trial court erred in refusing to instruct the jury of the lesser included of Burglary.

a.       Defendant contends that the trial court should have instructed the jury of the lesser included offense of Burglary.  The State concedes that burglary is a lesser included of aggravated burglary.  However, the Court of Appeals finds that based on Defendant’s theory of defense of permission to be on premises he wouldn’t be guilty of burglary either and that the evidence was clear that new boyfriend was assaulted. 

MORAL OF THE STORY:  If someone has a restraining order against you the court probably won’t believe that you were invited and needed to kick down the door.