State v. Griffin , 2013 Ohio 5389 ( 2013 )

[Cite as State v. Griffin, 2013-Ohio-5389.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 12AP-798
(C.P.C. No. 12CR-01-470)
v. :
(REGULAR CALENDAR)
Calvin M. Griffin, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 10, 2013
Ron O'Brien, Prosecuting Attorney, Laura R. Swisher,
Barbara A. Farnbacher, and Branden J. Albaugh, for
appellee.
The Law Office of Eric J. Allen, Ltd., and Eric J. Allen, for
appellant.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Calvin M. Griffin, from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas following a jury trial in which appellant was found guilty of carrying a concealed
weapon, improper handling of a firearm in a motor vehicle, and possession of cocaine.
{¶ 2} On November 9, 2011, Columbus police officers conducted a traffic stop of a
vehicle in which appellant was the driver and sole occupant. Appellant was placed under
arrest for failure to possess a valid driver's license, and the vehicle he was driving, which
was registered in someone else's name, was impounded. An inventory search of the
vehicle led to the discovery of a loaded 9 mm handgun and 24.19 grams of cocaine.
No. 12AP-798 2
{¶ 3} On January 30, 2012, appellant was indicted on one count of carrying a
concealed weapon, in violation of R.C. 2923.12, one count of improperly handling a
firearm in a motor vehicle, in violation of R.C. 2923.16, one count of possession of
cocaine, in violation of R.C. 2925.11, and one count of having a weapon while under
disability, in violation of R.C. 2923.13.
{¶ 4} The case came for trial before a jury beginning July 23, 2012. Following the
presentation of evidence, the jury returned verdicts finding appellant guilty of the counts
charging him with carrying a concealed weapon, improper handling of a firearm in a
motor vehicle, and possession of cocaine. The trial court separately found appellant guilty
of Count 4 (having a weapon while under disability), and the court sentenced appellant by
entry filed August 10, 2012.
{¶ 5} On appeal, appellant sets forth the following two assignments of error for
this court's review:
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY REFUSING TO ALLOW
APPELLANT TO OBTAIN NEW COUNSEL WHEN
REQUESTED IN VIOLATION OF APPELLANT'S SIXTH
AMENDMENT RIGHTS.
ASSIGNMENT OF ERROR II
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO FILE A
MOTION TO SUPPRESS THE EVIDENCE ON HIS BEHALF.
{¶ 6} Under his first assignment of error, appellant asserts the trial court erred in
refusing his request to obtain new counsel. By way of background, on the morning of the
first day of trial, prior to the jury being impaneled, defense counsel informed the trial
court that she believed appellant no longer wanted her representation. Appellant cites the
following portion of the trial transcript involving a colloquy between defense counsel, the
trial court, and appellant:
[DEFENSE COUNSEL]: And also, my client - - I don't think
he wants me to represent him, but - -
THE COURT: Mr. Griffin, do you want to put something on
the record?
No. 12AP-798 3
DEFENDANT GRIFFIN: Yes. I don't think she's working on
my behalf, sir, so I do want somebody else on it that I feel is - -
if I'm going to put money on it, too, that they're going to be
working on my behalf. And I don't see anything that she's
doing for me. She's like lack of communication to me.
Since May 20th she said she was going to come see me, and to
this date the first day I ever seen her. She didn't come down
one time to see me, so I've got to get somebody on my case
that's going to work for me in my behalf and win this case. I
don't think she's good enough for me.
Thank you.
THE COURT: Well, the answer is no.
(Tr. 4-5.)
{¶ 7} Appellant asserts the trial court failed to address his concerns, arbitrarily
refusing his request for new counsel and proceeding with trial. Appellant argues that the
trial court's action violated his right to counsel of choice under the Sixth Amendment.
{¶ 8} In response, the state contends the record indicates that appellant, although
initially able to retain private counsel, was in fact indigent. The state cites to appellant's
"Ex Parte Motion for Investigative Fees," filed with the trial court on May 14, 2012, and
the accompanying memorandum in support, in which appellant represented he was
unable to hire an investigator because he was indigent. The state also notes that the trial
court declared appellant indigent and provided him with appointed counsel for purposes
of appeal.
{¶ 9} In general, "[t]he right to counsel of one's choice is an essential element of
the Sixth Amendment right to have the assistance of counsel for one's defense." State v.
Frazier, 8th Dist. No. 97178, 2012-Ohio-1198, ¶ 26, citing State v. Keenan, 8th Dist. No.
89554, 2008-Ohio-807. This includes the right, when a defendant has the ability to retain
his own attorney, to be represented by counsel of choice. United States v. Gonzalez-
Lopez, 548 U.S. 140, 144 (2006). However, the right to retained counsel of choice "is not
absolute, * * * and courts have 'wide latitude in balancing the right to counsel of choice
against the needs of fairness and against the demands of its calendar.' " Frazier at ¶ 26,
citing Gonzalez-Lopez at 152. In this respect, a trial court's "difficult responsibility of
No. 12AP-798 4
assembling witnesses, lawyers and jurors for trial 'counsels against continuances except
for compelling reasons.' " State v. Howard, 5th Dist. No. 2012CA00061, 2013-Ohio-
2884, ¶ 40, quoting Morris v. Slappy, 461 U.S. 1, 11 (1983). Accordingly, "decisions
relating to the substitution of counsel are within the sound discretion of the trial court."
Frazier at ¶ 26, citing Wheat v. United States, 486 U.S. 153, 159 (1988).
{¶ 10} Further, "when the timing of a request for new counsel is an issue, a trial
court may make a determination as to whether the appellant's request for new counsel
was made in bad faith." Frazier at ¶ 27, citing State v. Graves, 9th Dist. No. 98CA007029
(Dec. 15, 1999). It has been held that "[a] motion for new counsel made on the day of trial
'intimates such motion is made in bad faith for the purposes of delay.' " Id., quoting State
v. Haberek, 47 Ohio App. 3d 35, 41 (8th Dist.1988).
{¶ 11} The record on appeal in this case lends support to the state's contention that
appellant was indigent at the time of trial. In his motion for investigative fees, filed
several months before trial, it was represented by appellant that, although his "extended
family * * * retained Attorney Wonnell * * * Mr. Griffin is indigent, and the family does
not have money to retain an investigator." As noted by the state, at the time of trial
appellant did not indicate he had been in contact with (or that he had secured) new
retained counsel, nor did he request a continuance in order to hire a new attorney of his
choosing. As also noted by the state, the trial court determined that appellant was
indigent for purposes of appeal, appointing counsel to represent him. Upon review, the
record does not indicate the trial court denied appellant the right to retained counsel of
choice; rather, in responding to appellant's claimed dissatisfaction with trial counsel, the
court in essence was addressing a request for new appointed counsel.
{¶ 12} A defendant "bears the burden of demonstrating grounds for the
appointment of new counsel." State v. Erwin, 10th Dist. No. 09AP-918, 2010-Ohio-3022,
¶ 8. Thus, "[i]f a 'defendant alleges facts which, if true, would require relief, the trial court
must inquire into the defendant's complaint and make the inquiry part of the record.' "
Id., quoting State v. Smith, 4th Dist. No. 98CA12 (Dec. 29, 1998). This inquiry "may be
brief and minimal," but "must be made." Id. However, " '[e]ven that limited judicial duty
arises only if the allegations are sufficiently specific; vague or general objections do not
trigger the duty to investigate further.' " Id., quoting Smith.
No. 12AP-798 5
{¶ 13} In the instant case, appellant's dissatisfaction with his present counsel was
stated in general terms. Specifically, appellant told the trial court: "I don't think she's
working on my behalf * * * I don't see anything that she's doing for me." (Tr. 5.) While
trial courts have an obligation to make some inquiry into a defendant's dissatisfaction
with counsel, reviewing courts require a defendant to raise concerns about counsel "with
sufficient specificity to warrant further investigation." State v. Washington, 1st Dist. No.
C-000754 (Aug. 17, 2001) ("A trial court, without more, does not abuse its discretion in
finding that a general allegation of unhappiness with appointed counsel is so vague that it
does not require additional investigation"); State v. Hawkins, 8th Dist. No. 91930, 2009-
Ohio-4368, ¶ 54 (Defendant's statement to judge that "he felt like his lawyers were 'not
going to fight for him to the fullest extent' " not sufficiently specific to trigger court's duty
to inquire further).
{¶ 14} Here, while the trial court did not conduct a lengthy inquiry, it nonetheless
permitted appellant to address the court and explain why he was unhappy with his
counsel. As noted, appellant's dissatisfaction with counsel was expressed in general
terms. The record on appeal, however, does not reflect that trial counsel was unprepared
to proceed with trial, nor does it suggest such a breakdown in the attorney-client
relationship that appellant failed to receive adequate representation. In sum, appellant
"did not establish a complete breakdown in communications with counsel or 'good cause'
to substitute counsel." State v. Williams, 99 Ohio St. 3d 439, 2003-Ohio-4164, ¶ 55. See
also State v. Coleman, 2d Dist. No. 19862, 2004-Ohi0-1305, ¶ 25, citing State v. Gordon,
149 Ohio App. 3d 237, 241, 2002-Ohio-2761 (1st Dist.) ("mere hostility, tension and
personal conflicts between attorney and client do not constitute a total breakdown in
communication if those problems do not interfere with the preparation and presentation
of a defense").
{¶ 15} Moreover, appellant's complaint regarding his counsel was not made until
the first day of trial, and therefore would have necessitated a continuance of trial. While
not entirely clear, the record suggests this was the first time the trial court was made
aware of any dissatisfaction by appellant with counsel. Under Ohio law, "the right to
counsel must be balanced against the court's authority to control its docket, as well as its
awareness that a 'demand for counsel may be utilized as a way to delay the proceedings or
No. 12AP-798 6
trifle with the court.' " State v. Mizell, 1st Dist. No. C-070750, 2008-Ohio-4907, ¶ 26,
quoting State v. Crew, 8th Dist. No. 86943, 2006-Ohio-4102, ¶ 17. Upon review, the trial
court did not abuse its discretion in refusing to delay appellant's trial based upon his
untimely, generalized complaints regarding counsel. Accordingly, the first assignment of
error is without merit and is overruled.
{¶ 16} Under his second assignment of error, appellant contends he was denied
effective assistance of counsel because his trial counsel failed to file a motion to suppress
evidence. Appellant argues that evidence of the cocaine and weapon discovered during
the inventory search of the vehicle should have been suppressed, and that defense counsel
was ineffective in failing to file a suppression motion prior to trial. Appellant cites trial
testimony that no usable prints were recovered from the bag of cocaine found in the
vehicle; further, that the handgun was tested for DNA and compared with appellant's
DNA, indicating a DNA mixture of at least three individuals. While appellant
acknowledges trial testimony that he could not be excluded as a contributor to the
mixture,1 he argues it is possible his DNA was not among the DNA found due to the lack
of a definite match.
{¶ 17} In response, the state maintains appellant does not claim the evidence was
illegally obtained, and that his challenge goes to the weight to be given the evidence, not
its admissibility. The state argues appellant cannot demonstrate ineffective assistance
because he cannot show the filing of a motion to suppress would have been meritorious.
{¶ 18} In order to establish ineffective assistance of counsel based upon failure to
file a motion to suppress, a defendant "must prove that there was a basis to suppress the
evidence in question." State v. Brown, 115 Ohio St. 3d 55, 2007-Ohio-4837, ¶ 65, citing
State v. Adams, 103 Ohio St. 3d 508, 2004-Ohio-5845, ¶ 35. See also State v. Gibson, 69
Ohio App. 2d 91, 95 (8th Dist.1980) ("Where the record contains no evidence which would
justify the filing of a motion to suppress, the appellant has not met his burden of proving
that his attorney violated an essential duty by failing to file the motion").
{¶ 19} In the instant case, appellant points to nothing in the record indicating
there was a basis to challenge the inventory search. State v. Smith, 10th Dist. No. 08AP-
1 At trial, a DNA analyst testified that appellant's "DNA profile was present in the DNA mixture, and his
profile * * * could not be excluded as being a contributor to that mixture." (Tr. 131-32.)
No. 12AP-798 7
420, 2008-Ohio-6520, ¶ 18. At trial, police officers testified that the vehicle was
impounded because appellant, who was the sole occupant of the vehicle, did not have a
driver's license, i.e., there was nobody else to drive the vehicle. According to the testimony
presented, after the vehicle was impounded an inventory search was performed consistent
with established procedures at which time the items at issue were discovered. A valid
inventory search is an exception to the warrant requirement, and in Ohio "a standard
inventory search of a lawfully impounded automobile * * * is permissible." State v.
Nields, 93 Ohio St. 3d 6, 27 (2001), citing State v. Robinson, 58 Ohio St. 2d 478 (1979),
syllabus.2
{¶ 20} Here, there is no showing that the search performed did not comply with
applicable police procedures. Because a reasonable attorney could have concluded that
the search was a valid inventory search, appellant has not demonstrated that trial counsel
was ineffective in failing to challenge the basis of the search. See State v. Woodard, 11th
Dist. No. 2009-A-0047, 2010-Ohio-2949, ¶ 35 (trial counsel not ineffective for failing to
file motion to suppress that would have been futile based upon established case law).
{¶ 21} Accordingly, the second assignment of error is without merit and is
overruled.
{¶ 22} Based upon the foregoing, appellant's first and second assignments of error
are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby
affirmed.
Judgment affirmed.
TYACK and DORRIAN, JJ., concur.
__________________
2In general, police inventory search procedures were developed "in response to three distinct needs: the
protection of the owner's property while it remains in police custody, * * * the protection [of] the police
against claims or disputes over lost or stolen property, * * * and the protection of the police from potential
danger. South Dakota v. Opperman, 428 U.S. 364, 369 (1976).