DocketNumber: No. 1655.
Citation Numbers: 593 N.E.2d 456, 72 Ohio App. 3d 82, 1991 Ohio App. LEXIS 34
Judges: Grey, Harsha, Stephenson
Filed Date: 1/8/1991
Status: Precedential
Modified Date: 10/19/2024
This is an appeal from a jury verdict of the Ross County Court of Common Pleas, finding Michael Day guilty of escape in violation of R.C.
The record reveals the following facts. Michael Day was an inmate at the Ross Correctional Institute ("RCI") in Chillicothe, Ohio. Day worked in the prison as shift captain's clerk. Through his job he came into contact with Corrections Officers Warnock and McCorkle. He also acquired a gun smuggled into the prison in a television set shipped to him by a female pen pal. On the evening of May 22, 1988, while in the captain's office, he handed McCorkle a note stating that he had a gun and help on the outside. McCorkle radioed officer Delaney to come to the captain's office. Delaney was ordered to remove his uniform and was handcuffed in a closet. Day changed into Delaney's uniform and wrapped the gun in a towel. The two walked out of *Page 84 the building, entered a prison vehicle, and drove to the front gate. McCorkle radioed that he had an injured employee and proceeded through the gate. Warnock was on duty in a perimeter vehicle outside the gate. McCorkle and Day entered Warnock's vehicle and the three drove to the Holiday Inn in Chillicothe. Day handcuffed Warnock to the steering wheel and went with McCorkle into the Holiday Inn where they were met by Day's wife, Sylvia. Day handcuffed McCorkle to a towel rack in the bathroom.
Sylvia Day's Nissan was parked at the Holiday Inn. The two drove to McDonald's restaurant where they parked the vehicle and walked to an L K Motel. The couple then arranged transportation to Columbus where they rented a car and drove to Mexico.
The police located the Nissan behind McDonald's. When the police processed the vehicle they found a .25 caliber automatic pistol in the pocket of the corrections officer's uniform.
Day was subsequently apprehended in Mexico and transported back to Ross County where he was charged with escape, two counts of kidnapping, abduction, aggravated robbery, carrying a concealed weapon, unauthorized use of a motor vehicle, and having a weapon under disability.
Attorney Jeffrey Benson was appointed to represent Day. Day's motion to proceed pro se was granted by the trial court. Attorney Benson was appointed as advisory counsel. Day subsequently asked the court to reappoint Benson as his attorney.
At trial, Day testified that Warnock and McCorkle helped in his escape and that their apparent kidnapping was part of the plan. Officer Delaney testified that while he was removing his uniform, McCorkle told Day not to take the keys because he would not be able to get out with them. Some jurors apparently believed Day, because there was a hung jury on the two counts of kidnapping, unauthorized use of a motor vehicle, and aggravated robbery. The court declared a mistrial on those counts. The jury did find Day guilty of escape, abduction of Delaney, carrying a concealed weapon, and having a weapon under a disability. Day has filed a timely notice of appeal to this court.
Sylvia Day's Nissan was discovered approximately six hours after the Days abandoned the vehicle at McDonald's. The police found the gun in the vehicle during an inventory of its contents. Day filed a motion to suppress. *Page 85 At the suppression hearing, the court found that Day did not have standing to challenge the search, and overruled the motion.
The Fourth Amendment protects individuals from unreasonable governmental intrusions into their legitimate expectations of privacy. These rights are personal rights which may not be asserted vicariously. See Rakas v. Illinois (1978),
An inquiry into a reasonable or a legitimate expectation of privacy normally includes the following two questions:
(1) whether the individual, by his conduct has exhibited an actual (subjective) expectation of privacy, that is, whether he has shown that he seeks to present something as private; and (2) whether the individual's subjective expectation of privacy is one that society is prepared to recognize as reasonable, that is, whether the expectation, viewed objectively, is justifiable under the circumstances. Smith v. Maryland (1979),
At the suppression hearing, Sylvia Day testified that she purchased the Nissan prior to her marriage and made all of the payments herself. She testified that her husband had never driven the vehicle. Day has not presented any Ohio law in support of his proposition that marital status per se provides him with the same property and possessory rights as his wife. We are not inclined to accept such a holding. Under Ohio law, by marriage, a husband does not acquire an interest in the separate personal property of his wife. See R.C.
The only question which remains is whether Day had a legitimate expectation of privacy in the Nissan. Day did not prove a subjective expectation of privacy in the Nissan. His use of the vehicle was brief, and he abandoned the vehicle and fled to Mexico in a rental vehicle. We find that Day had no reasonable expectation of privacy after he abandoned his ephemeral contact with this vehicle.
Appellant's first assignment of error is overruled.
A criminal defendant has a Sixth Amendment right to conduct his own defense with assistance at trial. See McKaskle v.Wiggins (1984),
Day first argues that he was denied access to the courts because he was denied meaningful access to legal research materials. Upon his return from his escape to Mexico, he was housed at the J-1 Super Max Block at the Southern Ohio Correctional Facility. Day was permitted to leave his cell twice a week to shower. He could receive one specific volume per request from the law library via prison mail, but was not permitted direct access to the law library. He could not make telephone calls.
The court appointed attorney Benson as advisory counsel. Benson was made available to act as Day's clerk and research areas of law of concern to him. Communication between the two would be by mail. Adequate law libraries in prisons are one constitutionally acceptable method to assure meaningful access to courts, but alternative means are not necessarily foreclosed.Bounds, supra. Day was not denied meaningful access to legal research material. He could receive one volume per request through prison mail. He also had Benson's legal expertise in researching and interpreting the law.
Day next argues that he should have been permitted to participate as Benson's co-counsel throughout the trial. "Although appellant has the right either to appear pro se or to have counsel, he has no corresponding right to act as co-counsel on his own behalf." State v. Thompson (1987),
Appellant's second assignment of error is overruled.
A jury trial was scheduled to begin on September 12, 1989. On September 11, 1989, the court granted Day a continuance until December 11, 1989 so that he could arrange to have his wife present at trial to testify on his behalf. On October 5, 1989, the court signed a certificate to compel Sylvia Day's attendance at trial. The certificate was sent to her state of residence in *Page 87 the manner required by Ohio law. However, the certificate was never served upon her.
On the third day of trial, Sylvia was still not available and Day asked for another continuance. The court granted him a continuance to the following day. On the fourth day of trial, Day asked for a third continuance or a mistrial. The court overruled Day's motions and concluded that "there is no reasonable likelihood that a reasonable continuance would result in the attendance of this witness."
"The grant or denial of a continuance is a matter that is entrusted to the broad, sound discretion of the trial judge."State v. Unger (1981),
It is likely that Sylvia Day would have testified that the two corrections officers aided Day in his escape. That evidence would have supported Day's theory that he did not kidnap the corrections officers. However, the jury apparently believed Day's testimony and did not return a verdict on the two counts of kidnapping, unauthorized use of a motor vehicle, or aggravated robbery. Day was not prejudiced by his wife's failure to testify on his behalf. The trial court did not err when it overruled Day's motion for a continuance or a mistrial.
Appellant's third assignment of error is overruled.
Day contends that during closing argument, the prosecutor unfairly attacked him for his postarrest silence.
The prosecutor made the following statement in the closing argument:
"Does it strike you as unusual that nineteen months after the escape Michael Day finally comes forward and tells his story? Does it not strike you as a little bit unusual that if you had these matters available and this information available to you you'd run to the warden, you'd run to the associate warden, you'd tell somebody, ``Hey, I had help in this thing. I didn't do all these things.' You wait until the last witness in your trial to bring that forward? Does that make sense to you?" *Page 88
The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant.
In Doyle v. Ohio (1976),
"[W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial."
In Fletcher v. Weir (1982),
"In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. The State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant's own testimony."
In Doyle and Fletcher, supra, the Supreme Court recognized that a defendant's substantial rights are violated when a prosecutor creates an inference of guilt from a defendant's postarrest silence. Fletcher stands for the proposition that, rather than as was done in Miranda for example, the Supreme Court would leave to each state the duty to protect these rights under the procedures and rules of evidence of that state.Fletcher stands for deference to the state courts, under a federal system, and should not be construed as an erosion of basic rights. Fletcher cannot be construed to hold that a prosecutor may argue to a jury that the defendant must be guilty because he remained silent, or asked for an attorney, or demanded a search warrant, or asserted any other rights.
In the present case, Day's constitutional right to remain silent was violated when the prosecutor created an inference of guilt from his postarrest silence. The prosecutor's remarks were improper and prejudicially affected a substantial right. Appellee argues that this excessive, and unnecessary, comment by the prosecutor was appropriate. Clearly it was not, and clearly it created an issue of an infringement of constitutional rights and the real possibility of prejudicial error.
Appellant states that an objection was made to the prosecutor's inference of guilt, but from our review of the record, we do not find an objection. *Page 89
"Generally, an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court." State v. Lancaster (1971),
This case seems to exemplify what the Supreme Court had in mind in Fletcher, supra. The prejudicial effect of any event occurring at trial is often difficult to determine, such as assessing the probable impact of the error on the average juror, as per Harrington v. California (1969),
In following Fletcher here, we find that under the rule laid down in Doyle, supra, the prosecutor attempted to create an impermissible inference of guilt, but that under the Ohio rules for appellate review, the failure to object means that it was not so prejudicial as to require reversal.
Appellant's fourth assignment of error is overruled.
The decision of the common pleas court is affirmed.
Judgment affirmed.
HARSHA and STEPHENSON, JJ., concur.