STATE OF OHIO, Appellee, - vs - ROBERT A. COOK, Appellant.
CASE NO. CA2020-08-053
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
6/28/2021
[Cite as State v. Cook, 2021-Ohio-2157.]
M. POWELL, P.J.
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee
Thomas G. Eagle Co., L.P.A., Thomas G. Eagle, 3400 N. State Route 741, Lebanon, Ohio 45036, for appellant
M. POWELL, P.J.
{1} Appellant, Robert A. Cook, appeals his felony conviction in the Warren County Court of Common Pleas for domestic violence.
{2} On April 8, 2020, Robert L. Cook, appellant‘s father (“Father“), called 9-1-1 and advised the dispatcher that appellant had thrown a Coke can at him, hit him numerous
{3} Sergeant Terry Viel heard the 9-1-1 dispatch and responded to the scene. Upon seeing Sergeant Viel arrive, Father pulled his car in front of the officer‘s police cruiser. Father was holding a blood-covered rag against his lower lip; the lip was swollen and bleeding. Sergeant Viel noticed that Father was visibly shaken and distraught. As the officer spoke to Father, appellant was in the garage in an agitated state, yelling that he was angry at Father and calling him an “asshole.” Sergeant Viel instructed appellant to go inside the house.
{4} By the time Sergeant Viel had finished speaking with Father, two other police officers had arrived on the scene. The three officers entered the home to arrest appellant for domestic violence. Appellant was in the basement watching television. He was very angry and agitated and told the officers that Father was a “fucking asshole.” When the officers advised appellant he was being placed under arrest for domestic violence, he resisted. The officers were eventually able to handcuff appellant, place him in a police cruiser, and transport him to jail. During their interaction with appellant, the officers noticed that his right knuckles were red and bloody. The officers observed no injuries on appellant‘s person and he complained of none. At no time did appellant ask for help or state that Father hit him.
{5} Appellant was indicted on one count each of domestic violence and resisting arrest. The domestic violence count was charged as a third-degree felony because appellant had two prior domestic violence convictions. The matter proceeded to a jury trial on July 7, 2020.
{6} On the morning of the trial, appellant‘s trial counsel moved to dismiss the case
{7} During the course of the trial, appellant interrupted the proceedings on several occasions. Appellant first interrupted trial counsel‘s cross-examination of one of the officers. The trial court warned appellant about his behavior and instructed the jury not to consider appellant‘s behavior or the court‘s response for any purpose. Following the state‘s case-in-chief, and while the jury had recessed for lunch, there was discussion as to whether trial counsel would call any witness. As the trial court invited trial counsel to state for the record what he wanted to do, appellant interjected, “And I‘d like to fire you as my counsel.” Trial counsel then indicated his intention to call Father as a witness at appellant‘s request. Appellant did not then or ever again assert a desire to fire counsel. As the state explained it had subpoenaed Father but was unsure whether he was properly served, appellant stated, “Beginning to finish. I‘ve read the documents. I know what my rights are and they‘re not being afforded to me for speaking up. I‘m getting hammered.”
{8} Appellant next interrupted trial counsel‘s closing arguments, disagreeing with his assertion that appellant was cursing and shouting at the police during the incident and stating, “You‘re not even on my side.” The trial court warned appellant about his behavior and reminded him he had already been warned once. When appellant continued by talking
{9} The trial court removed appellant from the courtroom and he was placed in a room where he was able to observe the proceedings on a monitor. The jury was returned to the courtroom. The trial court instructed the jury to disregard appellant‘s outbursts and the court‘s response to them and decide the case based solely upon the evidence and testimony. Closing arguments resumed. The trial court then instructed the jury, including on the prior convictions.
{10} The record indicates that appellant was returned to the courtroom at some point. After the jury recessed for the day, appellant once again engaged with the trial court, arguing that while a hung jury was an acceptable answer, it was not conveyed as such to the jury. After the court told appellant he had a problem with listening, appellant replied, “I have a problem with my rights not being observed,” “I can die from this stuff,” and “This is serious man.”
{11} When trial resumed the next morning, the trial court asked appellant whether he intended to behave. Appellant replied, “I behaved yesterday,” and promised he would behave. However, appellant, who had chosen to appear in a jail jumpsuit, promptly resumed his behavior of talking over the court, claiming violation of his rights and acting in a disrespectful manner. While arguing with the trial court over his decision to appear in jail clothing, appellant stated, “Ineffective counsel. You‘re -- this is my 91st day on the – past the speedy trial. This should be thrown out. It should‘ve been thrown out yesterday.” As
{12} After the jury was discharged, the trial court began discussing the proceedings for sentencing. Appellant interrupted, stating he was “okay with all of it,” talked about two warrants that had disappeared, and warned that he would not complete the presentence-investigative report. When trial counsel stated he was going to do his job, appellant replied, “You haven‘t done your job,” “I‘ll file my own appeal. I can‘t trust for him to do it. He didn‘t do anything that I asked of him during the trial.” The next day, the trial court filed an entry regarding appellant‘s Sixth Amendment right to a speedy trial. The court found that appellant‘s jury trial “commenced on the 90th day of the Defendant‘s incarceration” and that “[d]ue to the constraints of conducting a jury trial during the COVID-19 pandemic and the schedule of the attorneys, *** the date of the commencement of the trial was reasonable.” Appellant was ultimately sentenced to 18 months in prison.
{13} Appellant now appeals, raising one assignment of error:
{14} THE TRIAL COURT ERRED IN CONVICTING APPELLANT.
{15} Appellant challenges his felony conviction for domestic violence, presenting four issues for review: the trial court‘s failure to inquire into appellant‘s complaints regarding his court-appointed attorney; the trial court‘s removal of appellant from the courtroom during his trial; the improper admission of Father‘s 9-1-1 call into evidence; and the improper admission into evidence of appellant‘s prior convictions for domestic violence. Appellant further argues that if the alleged errors are not individually reversible, this court should
The Trial Court‘s Duty to Inquire
{16} Appellant argues the trial court erred by not inquiring into his complaints concerning his court-appointed counsel as required under State v. Deal, 17 Ohio St.2d 17 (1969).
{17} “Where, during the course of his trial for a serious crime, an indigent accused questions the effectiveness and adequacy of assigned counsel, *** it is the duty of the trial judge to inquire into the complaint and make such inquiry a part of the record.” Id. at syllabus. The inquiry may be brief and minimal, but it must be made. State v. King, 111 Ohio St.3d 70, 2006-Ohio-5283, ¶ 139. However, the “‘limited judicial duty arises only if the allegations are sufficiently specific; vague or general objections do not trigger the duty to investigate further.‘” State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 68, quoting with approval State v. Carter, 128 Ohio App.3d 419, 423 (4th Dist.1998).
{18} In the wake of Deal, Ohio courts of appeal have reversed convictions when the trial court failed to inquire into specific objections about the performance of court-appointed counsel. See State v. Prater, 71 Ohio App.3d 78 (10th Dist.1990); State v. King, 104 Ohio App.3d 434 (4th Dist.1995). “Notably, however, courts have read Deal as imposing on a defendant the initial burden of articulating specific concerns about his appointed counsel. Absent specific objections to counsel‘s performance, the trial court has no duty to investigate anything.” (Emphasis sic.) State v. Hibbler, 2d Dist. Clark No. 2001-CA-43, 2002-Ohio-4464, ¶ 15; State v. Simpson, 8th Dist. Cuyahoga No. 88301, 2007-Ohio-4301, 67.
{19} We find that the trial court did not err in failing to inquire into appellant‘s complaints concerning his court-appointed counsel. As the trial court and the parties were discussing whether the defense would call witnesses, appellant told trial counsel he wanted to fire him. Appellant‘s objection was vague and general. Immediately thereafter, trial counsel communicated his intention to call Father as a witness. Appellant never again raised the issue of firing trial counsel. On the second day of the trial, appellant interjected “ineffective assistance,” claiming a violation of his right to a speedy trial. The trial court rejected appellant‘s claim in an entry filed the next day.
{20} Appellant‘s brief refers to complaints he made regarding a misrepresented plea offer, ineffective or missing lines of questioning, misstating facts to the jury, admission of certain evidence, and failure to bring witnesses to trial.2 However, these complaints were not accompanied by a request for new counsel or made in conjunction with a claim of ineffective assistance of counsel. Rather, the record shows that appellant was generally dissatisfied with the proceedings and all persons involved. In particular, his dissatisfaction appeared to be directly mainly at the trial court for not permitting him to speak his mind whenever he wanted.
{21} We find that appellant‘s single vocalized desire to fire his trial counsel was vague and general and was not specific enough to require inquiry by the trial court. Appellant‘s other complaints likewise do not allege or reveal specific objections regarding
Appellant‘s Removal from the Courtroom
{22} Appellant argues the trial court erred by removing him from the courtroom during his trial.
{23} “One of the most basic of the rights guaranteed by the Confrontation Clause is the accused‘s right to be present in the courtroom at every stage of his trial.” Illinois v. Allen, 397 U.S. 337, 338 (1970).
{24} However,
Where a defendant‘s conduct in the courtroom is so disruptive that the hearing or trial cannot reasonably be conducted with the defendant‘s continued physical presence, the hearing or trial may proceed in the defendant‘s absence or by remote contemporaneous video, and judgment and sentence may be pronounced as if the defendant were present. Where the court determines that it may be essential to the preservation of the constitutional rights of the defendant, it may take such steps as are required for the communication of the courtroom proceedings to the defendant.
{25} Thus, “a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he
{26} Contrary to appellant‘s assertions, appellant did not simply object or try to make a point before he was twice removed from the courtroom. After appellant interrupted the testimony of one of the officers, the trial court warned appellant about his behavior, cautioning him that he was not permitted to speak out of turn. Appellant next interrupted trial counsel‘s closing arguments. When the trial court reminded appellant of its prior warning, appellant replied, “I‘m aware.” Thereafter, appellant engaged with the trial court, talking back to and ultimately accusing the court of “making a mockery of the Court,” “This is ridiculous and so are you,” and “This is bullshit.” The trial court removed appellant from the courtroom, ordering that he watch from a monitor in a nearby room. The next morning, appellant asserted he had behaved the day before, promised he would behave, and soon after argued with the court. The trial court removed appellant from the courtroom.
{27} We find the trial court acted properly in removing appellant from the courtroom. Despite being admonished about his behavior and receiving warnings of the consequences of his actions, appellant continued to impede his trial and conduct himself in a disruptive and disrespectful manner, including talking back to the court and making
Admission of Father‘s 9-1-1 Call
{28} Appellant argues that his Sixth Amendment right to confrontation was violated when the trial court admitted into evidence the 9-1-1 call from Father who did not testify at trial. Appellant asserts that the 9-1-1 call was testimonial because there was no ongoing emergency as Father had left the scene and “95% of the call was obtaining a statement about the offense and who did it and their problematic history.” We review a claim that a criminal defendant‘s rights have been violated under the Confrontation Clause de novo. State v. Doby, 12th Dist. Butler No. CA2013-05-084, 2014-Ohio-2471, ¶ 31.
{29} The Confrontation Clause bars admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. Davis v. Washington, 547 U.S. 813, 821 (2006). “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id. at 822. “They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id.
{31} Upon reviewing Father‘s 9-1-1 call, we find that its admission did not violate appellant‘s confrontation right because the call was nontestimonial.
{32} The 9-1-1 call was made shortly after appellant struck Father. While Father had left the scene, appellant was still in Father‘s home and Father notified the dispatcher that he would not return to the scene until an officer arrived. The questions the 9-1-1 operator asked Father, e.g. questions relating to Father‘s location and condition, questions relating to appellant‘s location, whether there were weapons, alcohol, or drugs involved, and whether other individuals were involved, and questions relating to what started the domestic violence incident, clearly related to the ongoing emergency and were directed to determining the nature and scope of the emergency to which law enforcement or other responders would need to respond. State v. Jacinto, 8th Dist. Cuyahoga No. 108944, 2020-Ohio-3722, ¶ 69; State v. Rinehart, 4th Dist. Ross No. 07CA2983, 2008-Ohio-5770, ¶ 26. While during the 9-1-1 call Father stated that the “township knows all about Robert,” “They were here two nights ago, they‘ve been here a dozen times,” and “Everybody knows me, everybody knows my son,” these three statements did not transform the 9-1-1 call into a testimonial statement. The three statements were made during the four-minute, 32-second
{33} We therefore conclude that the circumstances of Father‘s 9-1-1 call objectively indicate that its primary purpose was to enable police assistance to meet an ongoing emergency. Davis, 547 U.S. at 828. Father was not acting as a witness; Father was not testifying. Id. Accordingly, appellant‘s claim that the admission of the 9-1-1 call violated the Confrontation Clause is not well taken.
Admission of Appellant‘s Prior Domestic Violence Convictions
{34} Although ostensibly couched as an ineffective assistance of counsel argument (and without providing the Strickland test or demonstrating how trial counsel‘s performance met the Strickland test), appellant‘s fourth issue challenges the admission of appellant‘s two prior domestic violence convictions. Appellant asserts that the prior domestic violence convictions were inadmissible and prejudicial because he had stipulated to the prior convictions during a pretrial hearing. In support of his argument, appellant relies on Old Chief v. United States, 519 U.S. 172 (1997), and State v. Creech, 150 Ohio St.3d 540, 2016-Ohio-8440, to argue that the state improperly exceeded the scope of appellant‘s stipulation to his prior convictions. Appellant contends that the admission of these prior convictions created unfair prejudice in violation of
{35} Appellant was charged with committing domestic violence in violation of
{36} We find that the admission of appellant‘s two prior domestic violence convictions was proper and not prejudicial. Appellant‘s prior convictions were an essential element of the state‘s case that the state needed to prove. During the pretrial hearing, appellant stipulated that the documentation of his prior convictions was admissible evidence and the state accepted his stipulation to avoid calling a witness to testify to its authenticity. Thus, appellant only stipulated to the authenticity of the documents evidencing his prior convictions, not that his prior convictions fulfilled one of the elements of the crime charged. Under these circumstances, evidence was properly adduced at trial on that issue. State v. Thompson, 9th Dist. Lorain No. 98CA007112, 2000 Ohio App. LEXIS 722, *10 (Mar. 1, 2000).
{37} Appellant cites this court‘s decision in State v. Harmon, 12th Dist. Warren No. CA2019-01-007, 2019-Ohio-5036, in which we held,
“A stipulation of fact renders proof of that specific fact unnecessary.” State v. Schleiger, 12th Dist. Preble No. CA2009-09-026, 2018-Ohio-2359, ¶ 19, citing State v. Eckert, 12th Dist. Clermont No. CA2008-10-099, 2009-Ohio-3312, ¶ 17. Therefore, because the record firmly establishes that the parties stipulated that Harmon had two prior public indecency convictions prior to trial while discussing the matter in chambers with the trial court judge, it was unnecessary for the state to provide any evidence as it relates to those two convictions at trial.
{38} Turning to Old Chief and Creech, we find that both decisions are distinguishable from the present case. As this court recently discussed, “While both of those cases involved an offense that required proof of a prior conviction as an essential element to the underlying offense, in Old Chief and Creech, that essential element could be established by a type of conviction instead of a specific conviction.” State v. Jozwiak, 12th Dist. Warren No. CA2019-09-091, 2020-Ohio-3694, ¶ 29. The United States Supreme Court determined that “[t]he most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes” that would provide the qualifying effect to satisfy the essential element. Old Chief, 519 U.S. at 190-191. Similarly, the Ohio Supreme Court determined that under Ohio law a conviction for a broad category of crimes would provide the qualifying effect. Creech, 2016-Ohio-8440 at ¶ 34-35. “In a prosecution for these offenses, a defendant‘s stipulation or offer to stipulate to the prior conviction provides the same evidentiary value to the government as if the government presents its own evidence. This is because it is the legal status conferred by the prior conviction and not a specific conviction that proves the necessary element in the underlying offense.” Jozwiak at ¶ 29.
{39} Conversely, the relevant statutes in the case at bar,
Cumulative Error
{40} Finally, appellant argues that even if the individual errors did not merit a reversal of his domestic violence conviction, this court should consider whether the claimed errors cumulatively deprived appellant of a fair trial. Having determined that there were no errors, harmless or otherwise, we find that appellant received a fair trial. Therefore, the cumulative error doctrine does not apply. Jozwiak, 2020-Ohio-3694 at ¶ 37.
{41} Appellant‘s assignment of error is overruled.
{42} Judgment affirmed.
HENDRICKSON and BYRNE, JJ., concur.
M. POWELL
PRESIDING JUDGE