STATE OF OHIO, PLAINTIFF-APPELLEE vs. BRUCE BIRINYI, DEFENDANT-APPELLANT
Nos. 95680 and 95681
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 8, 2011
2011-Ohio-6257
FRANK D. CELEBREZZE, JR., J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CR-531800 and 510803. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
RELEASED AND JOURNALIZED: December 8, 2011
ATTORNEY FOR APPELLANT
Steve W. Canfil
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Nick Giegerich
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ALSO LISTED
Bruce James Birinyi
Inmate No. 591-192
Marion Correctional Institution
940 Williamsport Road
Marion, Ohio 43301
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, Bruce Birinyi, appeals his convictions for assault of a peace officer, obstructing official business, resisting arrest, and criminal nonsupport. After a thorough review of the record and relevant case law, we affirm in part, and reverse and remand in part.
{¶ 3} During a pretrial hearing, appellant expressed his desire to represent himself during trial. At the conclusion of the hearing, appellant signed a voluntary waiver of his right to counsel, dated September 8, 2008.
{¶ 4} Prior to trial, the trial court granted the state‘s motion to dismiss Counts 1, 2, 3, and 4, which covered time periods from February 2002 through March 2006. Additionally, the trial court granted the state‘s motion to amend the dates contained in Counts 5 and 6. The dates were amended from April 2006 through April 2008 to April 2005 through April 2007.
{¶ 5} On March 2, 2009, the case was called to trial, but was continued by the trial court on March 3, 2009 for a psychiatric evaluation of appellant pursuant to
{¶ 6} Following the mistrial, appellant‘s case was reassigned to a new trial judge for retrial. On August 31, 2009, appellant was referred to the psychiatric clinic for a second competency evaluation. On October 13, 2009, the trial court reviewed the report of the psychiatric clinic and concluded that appellant was competent to stand trial. The trial court permitted appellant to proceed pro se with the assistance of attorney Charles Morgan.
{¶ 8} On December 4, 2009, as a result of the courtroom incident, appellant was indicted in Case No. CR-531800 on charges of felonious assault of a police officer, in violation of
{¶ 9} Appellant‘s two pending cases, CR-510803 and CR-531800, were reassigned to a fourth trial judge, who accepted the previous findings of the psychiatric clinic that found appellant competent. Based on the psychiatric evaluation, the trial court permitted appellant to proceed pro se without the assistance of counsel. On May 11, 2010, the trial court granted the state‘s motion to consolidate appellant‘s pending cases.
{¶ 11} Appellant appeals, raising five assignments of error.1
Law and Analysis
Waiver of Counsel
{¶ 12} In his first assignment of error, appellant argues that the trial court erred by accepting his request to proceed pro se without first engaging in a colloquy to ensure that his decision to waive his constitutional right to counsel was made knowingly, voluntary, and intelligently.
{¶ 13} Although a defendant may eloquently express a desire to represent himself, a trial court must still satisfy certain parameters to ensure that the defendant‘s waiver of the constitutional right to counsel is made knowingly, intelligently, and voluntarily. See State v. Thompson, Cuyahoga App. No. 85483, 2005-Ohio-6126. In State v. Buchanan, Cuyahoga App. No. 80098, 2003-Ohio-6851, this court reiterated the well-established parameters
{¶ 14} “‘The Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily, and knowingly and intelligently elects to do so.’ State v. Gibson (1976), 45 Ohio St.2d 366, 345 N.E.2d 399, paragraph one of the syllabus, citing Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. However, ‘courts are to indulge in every reasonable presumption against the waiver of a fundamental constitutional right, including the right to be represented by counsel.’ State v. Dyer (1996), 117 Ohio App.3d 92, 95, 689 N.E.2d 1034. As a result, ‘a valid waiver affirmatively must appear in the record, and the State bears the burden of overcoming the presumption against a valid waiver.’ State v. Martin, Cuyahoga App. No. 80198, 2003-Ohio-1499. ‘In order to establish an effective waiver of right to counsel, the trial court must make sufficient inquiry to determine whether a defendant fully understands and intelligently relinquishes that right.’ Gibson, paragraph two of the syllabus.
{¶ 15} “Although there is no prescribed colloquy in which the trial court and a pro se defendant must engage before a defendant may waive his right
{¶ 16} “In determining the sufficiency of the trial court‘s inquiry in the context of the defendant‘s waiver of counsel, the Gibson court applied the test set forth in Von Moltke v. Gillies (1948), 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309, as follows:
{¶ 17} “‘* * * To be valid such waiver must be made with an apprehension of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter.‘” Buchanan at ¶15-18.
{¶ 18} See, also, State v. Perry, Cuyahoga App. No. 81825, 2003-Ohio-1175; Martin, supra; State v. Buckwald, Cuyahoga App. No. 80336, 2002-Ohio-2721; State v. Richards (Sept. 20, 2001), Cuyahoga App. No. 78457; State v. Jackson, supra; State v. Melton (May 4, 2000), Cuyahoga App. No.
{¶ 19} Additionally,
{¶ 20} Upon review of the record, it is evident that on September 8, 2008, prior to appellant‘s first trial, the trial court complied with the standard set forth in Von Moltke.
{¶ 21} During the September 8, 2008 hearing, appellant asserted his right to self-representation. Thereafter, the trial court engaged in a lengthy
{¶ 22} In light of the trial court‘s statements on the record and the written waiver signed by appellant, it is clear that the trial court took precautions to ensure that appellant understood the nature of his decision to proceed pro se and that his decision to waive his right to counsel was knowingly, intelligently, and voluntarily made.
{¶ 23} However, at the conclusion of the state‘s case-in-chief, the trial court ordered a psychiatric examination of appellant on March 3, 2009. On March 5, 2009, the trial court reviewed the appellant‘s psychiatric clinic
{¶ 24} On March 13, 2009, appellant‘s matter was reassigned to a new trial court for retrial. Thus, the question, then, is whether the “first” waiver of counsel remains valid for the “second” trial. This issue was addressed in City of Washington C.H. v. Steward (July 20, 1987), Fayette App. No. CA86-08-008. In Steward, the Twelfth District stated:
{¶ 25} “We feel that under the facts and circumstances of the case sub judice, it was unnecessary for the court to obtain a second waiver of counsel. First, a relatively short period of time passed between the appellant‘s waiver and the first and second trials. Second, the new trial added no new circumstances. There was no change in the nature of the charges against appellant, the statutory offenses included with them, the range of allowable punishments, or possible defenses to the charges and circumstances in mitigation thereof. See United States v. Weninger (C.A.10, 1980), 624 F.2d 163, 164, certiorari denied (1980), 449 U.S. 1012, 101 S.Ct. 568, citing Von Moltke v. Gillies (1948), 332 U.S. 708, 723-24, 68 S.Ct. 316, 323. Further,
{¶ 26} Unlike the circumstances presented in Steward, appellant‘s second trial involved new circumstances, including additional charges brought against him, a heightened range of allowable punishments, and various possible defenses. Prior to appellant‘s second trial, he was found in contempt of court and indicted in Case No. CR-531800 on new counts of felonious assault, assault, obstructing official business, and resisting arrest. Subsequently, appellant‘s criminal nonsupport case (CR-510803) and his assault case (CR-531800) were consolidated, and the matter was set for trial on July 6, 2010.
{¶ 27} However, prior to the commencement of appellant‘s second trial, the trial court failed to conduct any inquiry as to whether appellant was knowingly, intelligently, and voluntarily waiving his right to counsel. The trial court failed to address appellant‘s new charges altogether and accepted his waiver of counsel without addressing the additional penalties and perils he was facing in the consolidated trial. Rather, the trial court merely
{¶ 28} In light of the seriousness of the additional charges appellant was facing in his retrial, we believe that the trial court was required to conduct an inquiry pursuant to Von Moltke and establish, as it did during appellant‘s initial trial, that he was knowingly, intelligently, and voluntarily waiving his constitutional right to counsel. Additionally, the trial court was required to obtain a written waiver of counsel pursuant to
{¶ 29} Based on the foregoing, appellant‘s first assignment of error is sustained. We find that appellant must be granted a new trial because his waiver of counsel at his second trial was not knowing, voluntary, and intelligent, and because the trial court failed to comply with the requirements of
{¶ 30} Although our disposition of appellant‘s first assignment of error renders moot some of the remaining assignments of error, “to the extent that
Sufficiency of the Evidence
{¶ 31} In his fourth assignment of error, appellant argues that his convictions for assault of a peace officer and obstruction of official business were not supported by sufficient evidence. Appellant does not challenge his remaining convictions on sufficiency grounds, therefore they will not be addressed.
{¶ 32} A challenge to the sufficiency of the evidence supporting a conviction requires a court to determine whether the state has met its burden of production at trial. State v. Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52, 678 N.E.2d 541. On review for sufficiency, courts are to assess not whether the state‘s evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. Id. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
{¶ 34} At trial, Judge Michael Corrigan testified, “I directed [Deputy Slattery] to bring [appellant] up to the trial table, [appellant] refused. [Appellant] got into a fight with him.” Deputy James Slattery testified that he was on duty at the courthouse on November 30, 2009. Deputy Slattery indicated that he observed appellant refusing to obey the orders of the trial court. At that point, appellant was placed in contempt, and Deputy Slattery was instructed to remove appellant from the courtroom. Deputy Slattery testified, “He refused, three, four times, and he had a briefcase sitting there. I grabbed the briefcase and he grabbed my arm * * *. I let go of the briefcase, I yanked him out of his seat and cuffed one arm, tried to cuff his other arm, and he kept spinning on me. We spun once, the second spin I tripped him to the ground and he fell flat down with his elbow up and his arm under him, and I landed on his elbow and I felt something pop in my rib cage.”
{¶ 36} In this case, it is evident that appellant refused to comply with the instructions of the trial court and struggled with the deputy as the deputy attempted to place handcuffs on him. Under the totality of the circumstances, we find that there was ample evidence for the jury to conclude that appellant was aware that his conduct would probably cause physical harm to Deputy Slattery, which, in fact, it did. Given the foregoing, we conclude that there was sufficient evidence presented to support appellant‘s conviction for assault under
{¶ 37} Additionally, appellant challenges the sufficiency of the evidence supporting his conviction for obstructing official business. Pursuant to
{¶ 38} “A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.”
{¶ 39} “The proper focus in a prosecution for obstructing official business is on the defendant‘s conduct, verbal or physical, and its effect on the public official‘s ability to perform the official‘s lawful duties.” State v. Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, at ¶12.
{¶ 40} In light of the testimony presented at trial, we conclude that a reasonable jury could conclude that appellant‘s physical resistance to Deputy Slattery while he was attempting to remove appellant from the courtroom constituted a purposeful act to impair or hinder Deputy Slattery‘s ability to perform his lawful duties.
Joinder
{¶ 42} Finally, we address appellant‘s second assignment of error because it may be subject to repetition at appellant‘s new trial. In his second assignment of error, appellant argues that the trial court committed prejudicial error when it joined the two unrelated cases for trial over his objection. Appellant contends that the evidence of unrelated crimes, including the allegations of assault and obstruction, unfairly prejudiced his defense against allegations of criminal nonsupport.
{¶ 43} We initially note that because appellant failed to renew his objection to the joinder of the indictments at the close of the state‘s evidence or at the conclusion of all the evidence, he has waived this issue on appeal except for plain error. State v. Owens (1975), 51 Ohio App.2d 132, 146, 366 N.E.2d 1367; see, also, State v. Saade, Cuyahoga App. Nos. 80705 and 80706, 2002-Ohio-5564; State v. Hill, Cuyahoga App. No. 80582, 2002-Ohio-4585; State v. Fortson (Aug. 2, 2001), Cuyahoga App. No. 78240. Under
{¶ 44}
{¶ 45}
{¶ 46} Thus, pursuant to
{¶ 47} Generally, the law favors joining multiple offenses in a single trial under
{¶ 48} In the instant case, the two cases are separate and distinct. The allegations are not based on connected transactions, nor do they form a course of conduct. Further, evidence of appellant‘s criminal nonsupport allegations would not have been admissible to prove the counts of assault and obstruction involving Deputy Slattery. Hence, there was undoubtedly some prejudice caused by the joinder of the two cases.
{¶ 49} However, the joinder of the two cases did not affect their outcome. As discussed in the sufficiency analysis, there was direct evidence in support of appellant‘s convictions for assault on a peace officer and obstructing official business. Because evidence of appellant‘s guilt was so overwhelming, it
{¶ 50} Furthermore, there was substantial evidence of appellant‘s guilt in CR-510803. The record reflects that appellant was under a court order to make child support payments and consistently failed to make those payments. Paulina Raspovic, a support enforcement officer at the Child Support Enforcement Agency, testified that appellant only made one payment during the entire two-year time period from April 2005 to April 2007 and that he had accrued an arrearage of $38,723.82 as of June 30, 2010. The testimony adduced at trial demonstrated that appellant was “an extremely talented woodworker” and had the capability of obtaining work and simply failed to do so. Accordingly, appellant failed to establish that he was providing support within his ability and means.
{¶ 51} Therefore, although the joinder of the two cases was arguably improper under
{¶ 52} Because this matter is being remanded for retrial on separate grounds, we note that this assignment of error will be relevant to appellant‘s retrial. As discussed, our conclusions in this assignment of error rely heavily on appellant‘s failure to raise timely objections, thereby subjecting him to the confines of a plain error analysis. Had appellant objected to the
Conclusion
{¶ 53} In summary, appellant‘s first assignment of error is sustained, and therefore he must be granted a new trial; appellant‘s second and fourth assignments of error are overruled; appellant‘s remaining assignments of error are rendered moot.
{¶ 54} This cause is affirmed in part, reversed in part, and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR
APPENDIX
Appellant‘s assignments of error:
“I. The trial court erred and denied due process when it permitted appellant‘s pro se representation absent valid waiver(s) of his constitutional right to counsel, especially where appellant did not knowingly, intelligently, and voluntarily waive this right, where he was found incompetent to represent himself and a determination that he was competent to represent
“II. The trial court committed prejudicial error when it joined the two unrelated cases for trial over appellant‘s objection and deprived appellant of his constitutional right to a fair trial.”
“III. The trial court erred when it permitted the prosecutor to amend the dates of indictments in counts 5 and 6, changing the nature of the underlying offenses and depriving appellant of his rights to indictment by grand jury and to effectively present his affirmative defenses.”
“IV. Appellant‘s convictions for assault on an officer and obstruction of official business were not supported by sufficient evidence.”
“V. Appellant‘s convictions for non-support, assault and obstruction were against the manifest weight of the evidence in light of he evidence demonstrating appellant‘s affirmative defenses.”