[Cite as State v. Griffin,

.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24001

vs. : T.C. CASE NO. 09CR1117/3

DE’ARGO GRIFFIN : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 10th day of February, 2012.

. . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Kirsten A. Brandt, Asst. Pros. Attorney, Atty. Reg. No. 0070162, P.O. Box 972, Dayton, Ohio 45422 Attorneys for Plaintiff-Appellee

Kent J. Depoorter, Atty. Reg. No. 0058487, 7501 Paragon Road, Lower Level, Dayton, Ohio 45459 Attorney for Defendant-Appellant

. . . . . . . . .

GRADY, P.J.:

{¶ 1} Defendant, De’Argo Griffin, appeals from his convictions

and sentences for possession of heroin, possession of criminal

tools, and engaging in a pattern of corrupt activity,

{¶ 2} On April 10, 2009, Defendant and two co-defendants, 2

Anthony Franklin and Deshawn Foster, were indicted on one count

of possessing of heroin, between ten and fifty grams, in violation

of R.C. 2925.11(A). Defendant filed a motion seeking a separate

trial from that of his co-defendants. On October 26, 2009,

Defendant and his two co-defendants were indicted on additional

charges: five counts of possessing criminal tools, R.C. 2923.24(A),

and one count of engaging in a pattern of corrupt activity, R.C.

2923.32(A)(1), based upon multiple acts of possessing and selling

crack cocaine and heroin between May 13, 2006 and April 2, 2009.

Defendant filed an amended motion for a separate trial. The

motion was denied. The court set a trial date of March 1, 2010.

{¶ 3} On February 23, 2010, Attorney William Daly entered his

appearance as co-counsel for Defendant. Three days later, on

February 26, 2010, Attorney Daley filed a motion on behalf of

Defendant to relieve court-appointed counsel J. Allen Wilmes as

counsel for Defendant, to substitute Attorney Daley as counsel

for Defendant, and to continue the trial. The trial court

overruled Defendant’s motion on March 1, 2010, following a hearing.

{¶ 4} Defendant Griffin and co-defendant Franklin were tried

together before a jury beginning on or about March 2, 2010.

Co-defendant Foster had entered pleas of guilty before trial.

Defendant filed a pro se motion renewing his request for

substitution of counsel and a continuance of the trial so that 3

Attorney Daley could represent him. The trial court denied

Defendant’s motion. Following a jury trial, Defendant was found

guilty of all charges. The trial court sentenced Defendant to

concurrent prison terms totaling five years and a fifteen thousand

dollar fine.

{¶ 5} Defendant timely appealed to this court from his

conviction and sentence.

FIRST ASSIGNMENT OF ERROR

{¶ 6} “APPELLANT’S CONVICTION UNDER R.C.2923.32(A)(1),

ENGAGING IN A PATTERN OF CORRUPT ACTIVITY, MUST BE REVERSED BECAUSE

INSUFFICIENCIES IN THE INDICTMENTS RENDER THE CONVICTION VOID FOR

LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO CHARGE AN

OFFENSE.”

{¶ 7} Defendant argues that the indictment is defective

because it fails to allege each specific corrupt activity or offense

in which Defendant participated that make up the Engaging in a

Pattern of Corrupt Activity charge in violation of R.C.

2923.32(A)(1). We addressed this same argument in the appeal of

Defendant’s co-defendant, Anthony Franklin, and concluded that

the indictment charging Engaging in a Pattern of Corrupt Activity

in the words of the applicable statute, R.C. 2923.32(A)(1), is

not defective because it fails to specify each corrupt activity

in which Defendant is alleged to have participated. State v. 4

Franklin, 2nd Dist., Montgomery App. Nos. 24011, 24012,

. For the reasons stated in our opinion in Franklin,

Defendant’s first assignment of error is overruled.

SECOND ASSIGNMENT OF ERROR

{¶ 8} “THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED

APPELLANT’S SIXTH AND FOURTEENTH AMENDMENT RIGHTS BY DENYING THE

APPELLANT’S MOTION TO BE REPRESENTED BY RETAINED COUNSEL OF HIS

CHOICE.”

{¶ 9} Defendant argues that the trial court abused its

discretion when it denied his requests to substitute his

newly-retained counsel for his court appointed counsel, and for

a continuance of the trial made necessary by the requested

substitution.

“Abuse of discretion” has been defined as an attitude

that is unreasonable, arbitrary or unconscionable.

Huffman v. Hair Surgeon, Inc. (1985),

, 19 OBR 123, 126,

. It is to

be expected that most instances of abuse of discretion

will result in decisions that are simply unreasonable,

rather than decisions that are unconscionable or

arbitrary.

A decision is unreasonable if there is no sound reasoning

process that would support that decision. It is not 5

enough that the reviewing court, were it deciding the

issue de novo, would not have found that reasoning

process to be persuasive, perhaps in view of

countervailing reasoning processes that would support

a contrary result.

AAAA Enterprises, Inc. v. River Place Community Redevelopment,

,

(1990).

{¶ 10} The decision whether to grant or deny a request for a

continuance is a matter left to the sound discretion of the trial

court. A reviewing court will not disturb that decision absent

an abuse of discretion. State v. Powell,

,

(1990); Ungar v. Serafite,

,

,

(1964).

{¶ 11} In State v. Rash,

,

, (2nd Dist. 1996), this court observed:

In Ungar, the United States Supreme Court wrote:

The matter of continuance is traditionally within the

discretion of the trial judge, and it is not every denial

of a request for more time that violates due process

even if the party fails to offer evidence or is compelled

to defend without counsel. Contrariwise, a myopic

insistence upon expeditiousness in the face of a

justifiable request for delay can render the right to 6

defend with counsel an empty formality. There are no

mechanical tests for deciding when a denial of a

continuance is so arbitrary as to violate due process.

The answer must be found in the circumstances present

in every case, particularly in the reasons presented

to the trial judge at the time the request is made.

(Emphasis added and citations omitted.)

,

,

.

The Ohio Supreme Court has adopted and followed a

balancing test from Unger that requires a “reviewing

court to weigh potential prejudice against ‘a court's

right to control its own docket and the public's interest

in the prompt and efficient dispatch of justice.’”

Powell,

,

, citing

Unger, 67 Ohio St.2d at 67, 21 O.O.3d at 43, 423 N.E.2d

at 1080. In Powell, the Supreme Court listed relevant

factors to be considered: (1) length of delay sought,

(2) previous continuances sought or granted, (3)

inconvenience to all involved, (4) legitimacy of reason

for delay, and (5) whether the defendant had caused the

delay. Id.

{¶ 12} The decision whether or not to remove court appointed

counsel and allow substitution of new counsel is also addressed 7

to the sound discretion of the trial court, and its decision will

not be reversed on appeal absent an abuse of discretion. State

v. Murphy,

,

,

; State

v. Coleman, 2nd Dist. Montgomery No. 19862,

.

{¶ 13} Defendant wanted a continuance of the trial so that his

newly-retained counsel, William Daley, could be substituted for

his court-appointed attorney, J. Allen Wilmes. In evaluating a

request for substitute counsel, the court must balance the

accused’s right to counsel of his choice against the public’s

interest in the prompt and efficient administration of justice.

Murphy.

{¶ 14} Attorney Daley first entered his appearance as

co-counsel on February 23, 2010. Then, on February 26, 2010, the

Friday before trial was scheduled to commence on Monday, March

1, 2010, Daley filed a motion seeking to relieve court appointed

counsel, J. Allen Wilmes, substitute himself as counsel for

Defendant, and continue the trial to allow Daley time to prepare.

Daley’s motion indicated that the reason Defendant requested

substitution of counsel and a continuance of the trial was due

to a complete lack of communication between Defendant and court

appointed counsel prior to trial; that they had not yet even

discussed the case. The trial court denied Defendant’s request

for substitution of counsel and a continuance of the trial, finding 8

that it was ill-timed and a delaying tactic.

{¶ 15} Defendant’s “eleventh hour” request for substitution

of counsel and a continuance of the trial was filed the Friday

afternoon before trial was scheduled to begin on Monday, March

1, 2010. The trial had previously been continued three times,

once at Defendant’s request. Defendant knew at least six weeks

earlier that he intended to retain William Daley to represent him,

and Daley knew he would have to request a continuance because of

a conflict with another case scheduled before a different judge.

{¶ 16} Despite the fact that both Defendant and Attorney Daley

were in court on February 18, 2010 on a motion to suppress, nothing

was said at that time about needing a continuance. Furthermore,

in his February 23, 2010 notice of appearance as co-counsel,

Attorney Daley made no request for a continuance. That request

was not made until the afternoon of the last business day before

the trial was to begin. By then, potential jurors had been ordered

to appear in court at 9:00 a.m. on Monday morning, March 1, 2010,

and over forty witnesses had been subpoenaed by the State for the

trial.

{¶ 17} The trial court found that the lack of communication

between Defendant and his court-appointed counsel was due to

Defendant’s unwillingness to cooperate. Attorney Wilmes had sent

several letters and made repeated efforts to contact Defendant, 9

which were unsuccessful. When a meeting was finally scheduled,

Defendant failed to appear. When Defendant called Attorney Wilmes

on the Friday before the trial began in order to discuss the case,

Wilmes was out of town at a seminar and unavailable. The trial

court concluded that Defendant caused the lack of communication

problem by failing to cooperate with his court appointed counsel.

On these facts and circumstances, we find no abuse of discretion

in denying Defendant’s eleventh hour request for a substitution

of counsel and a continuance of the trial.

{¶ 18} Defendant’s second assignment of error is overruled.

THIRD ASSIGNMENT OF ERROR

{¶ 19} “THE TRIAL COURT DEMONSTRATED BIAS IN FAVOR OF THE STATE

AND AGAINST APPELLANT.”

{¶ 20} Defendant argues that the trial court demonstrated

judicial bias against him and in favor of the State.

{¶ 21} In Weiner v. Kwait, 2nd Dist. Montgomery No. 19289,

, we stated:

Judicial bias is “a hostile feeling or spirit of

ill will or undue friendship or favoritism toward one

of the litigants or his attorney, with the formation

of a fixed anticipatory judgment on the part of the judge,

as contradistinguished from an open state of mind which

will be governed by the law and the facts.” State v. 10

LaMar,

,

(citations

omitted).

Trial judges are “presumed not to be biased or

prejudiced, and the party alleging bias or prejudice

must set forth evidence to overcome the presumption of

integrity.” Eller v. Wendy's Internatl., Inc., (2000),

,

(citations

omitted). In Eller, the court also noted that “[t]he

existence of prejudice or bias against a party is a matter

that is particularly within the knowledge and reflection

of each individual judge and is difficult to question

unless the judge specifically verbalizes personal bias

or prejudice toward a party.”

{¶ 22} Defendant first argues that the trial court demonstrated

bias and prejudice against him when it refused to allow his retained

counsel, William Daley, to participate in the hearing held on

March 1, 2010 to determine whether Daley would be substituted as

counsel for Defendant and allowed to represent Defendant at trial.

Defendant’s claim is based upon Daley’s affidavit, which was

attached to Defendant’s pro se renewal motion for substitution

of counsel. Daley stated that the trial judge told him he could

not participate in the hearing. Daley attributes the judge’s

decision to a history of “these same type of issues” between Daley 11

and the judge, which Daley “believes to be a factor in the court’s

determination not to allow Defendant to retain private counsel

of Defendant’s choice.” Affidavit at ¶ 12, 20.

{¶ 23} The judge explained on the record the conversation he

had with Attorney Daley, and the judge specifically denied telling

Daley that he could not attend or participate in the hearing.

The judge told Daley he would not be Defendant’s counsel at that

hearing. The judge left the matter of Daley’s presence at the

hearing up to Daley.

{¶ 24} It appears that there was some confusion or

misunderstanding about whether Daley would appear for the hearing

or instead be informed of the outcome. The hearing was scheduled

for 9:00 a.m. Daley appeared at 10:00 a.m. The trial judge saw

Daley but was occupied with other matters at that time. When the

judge finished his other business, he inquired where Daley was,

but was told Daley had left. Therefore, the court did not have

an opportunity to talk with Daley or put him on the record about

the substitution of counsel issue.

{¶ 25} While the judge may have expressed some frustration over

Daley’s absence, the record does not support Defendant’s contention

that the court prevented Daley from attending the hearing or that

the judge based his decision denying Defendant’s request for

substitution of counsel and a continuance of the trial on Daley’s 12

decision not to attend the hearing. No hostility or ill will

against Defendant on the part of the trial court is demonstrated.

{¶ 26} Defendant additionally argues that the trial court

demonstrated bias in favor of the State by questioning a State’s

witness in a manner that intimated to the jury the court’s opinion

of the evidence the witness offered or the witness’ credibility.

{¶ 27} A trial judge is allowed to interrogate a witness in

an impartial manner, provided the court’s questioning does not

indicate to the jury its opinion on the evidence or the credibility

of the witness. State ex rel. Wise v. Chand (1970),

; Evid.R. 614(B).

{¶ 28} In Jenkins v. Clark,

,

(2nd Dist. 1982), this court stated:

In regard to the examination of witnesses, the trial

judge is something more than a mere umpire or sergeant

at arms to preserve order in the courtroom. He has active

duties to perform in maintaining justice and in seeing

that the truth is developed and may for such purpose

put proper questions to the witnesses, and even leading

questions. Gilhooley v. Columbus Ry. Power & L. Co.

(1918), 20 Ohio N.P. (N.S.) 545. If at any time during

the trial of a cause a judge is prompted, in the interest

of justice, to develop facts germane to an issue of fact 13

to be determined by the jury, it is proper that he do

so. Dependabilt Homes, Inc. v. Haettel (1947),

.

* * *

In the absence of any showing of bias, prejudice, or

prodding of a witness to elicit partisan testimony, it

will be presumed that the court acted with impartiality

in attempting to ascertain a material fact or to develop

the truth. Gilhooley, supra.

.

{¶ 29} State’s witness, Gary R. Shaffer, a forensic chemist

from the Miami Valley Regional Crime Lab, testified regarding his

testing of various drugs. Shaffer expressed uncertainty during

his testimony whether “within a reasonable scientific certainty,”

a legal term, was the same or less than “absolute certainty.”

That prompted the trial court to question Shaffer about the

reliability and accuracy of his testing as follows:

{¶ 30} “THE COURT: Believe it or not the Court has a question,

clarification if I might.

{¶ 31} “Earlier, sir, you testified that you weren’t sure –

you had testified that you use some legal terms and you weren’t

sure what they meant. So I want to just clarify some part of your

testimony here. 14

{¶ 32} “You – the testimony that you’ve given regarding the

testing of the cocaine, is it based on your reliable scientific

information?

{¶ 33} “THE WITNESS: Yes, sir.

{¶ 34} “THE COURT: Is the procedure that you use, are the

procedures and testing that you use are those based on objectively

verifiable and widely accepted facts or principles?

{¶ 35} “THE WITNESS: Yes, sir.

{¶ 36} “THE COURT: Is the design of the procedure and the test,

is it reliably, does it reliably implement the three upon which

it’s based?

{¶ 37} “THE WITNESS: Yes, sir.

{¶ 38} “THE COURT: And in this case – particular procedure test

that you did here, was that conducted in a way that yields an

accurate result?

{¶ 39} “THE WITNESS: Yes, sir.

{¶ 40} “THE COURT: And are you reasonably certain of the result

that you got?

{¶ 41} “THE WITNESS: Yes, sir, I am.

{¶ 42} “THE COURT: Okay. Thank you.

{¶ 43} “Does that prompt any questions?

{¶ 44} “MS. PARSON: No, thank you, Your Honor. 15

{¶ 45} “THE COURT: Okay. Mr. O’Brien?1

{¶ 46} “MR. O’BRIEN: No questions.

{¶ 47} “THE COURT: Okay. Thank you very much.” (Trial T. at

727-728.)

{¶ 48} The court questioned Shaffer briefly in order to

ascertain whether his tests were based on reliable scientific

information, if the procedure he used was based on objectively

verifiable and widely accepted scientific principles, if the test

yielded accurate results, and whether Shaffer was reasonably

certain of the results. See Evid.R. 703. The court’s questions,

while leading, were nevertheless impartial and not aimed at

eliciting partisan testimony, but were merely intended to elicit

the facts needed to decide the issue. The trial court did not

demonstrate bias or prejudice for or against either party.

{¶ 49} Defendant’s third assignment of error is overruled.

FOURTH ASSIGNMENT OF ERROR

{¶ 50} “THE JOINDER OF CO-DEFENDANT ANTHONY FRANKLIN

SUBSTANTIALLY PREJUDICED APPELLANT’S DUE PROCESS RIGHT TO A FAIR

TRIAL UNDER THE UNITED STATES CONSTITUTION.”

{¶ 51} Defendant argues that the trial court abused its

discretion and denied him due process and a fair trial by denying

1 Counsel for co-defendant Franklin. 16

his request for a trial separate from that of his co-defendant,

Anthony Franklin.

{¶ 52} In State v. Humphrey, 2nd Dist., Clark App. No. 02CA0025,

, we stated:

Crim.R. 8(B) governs joinder of defendants and

provides:

“Two or more defendants may be charged in the same

indictment, information or complaint if they are alleged

to have participated in the same act or transaction or

in the same series of acts or transactions constituting

an offense or offenses, or in the same course of criminal

conduct. Such defendants may be charged in one or more

counts together or separately, and all of the defendants

need not be charged in each count.”

Crim.R. 14 provides for relief from prejudicial

joinder and states in relevant part:

“If it appears that a defendant or the state is

prejudiced by a joinder of offenses or of defendants

in an indictment, information, or complaint, or by such

joinder for trial together of indictments, informations

or complaints, the court shall order an election or

separate trial of counts, grant a severance of

defendants, or provide such other relief as justice 17

requires. In ruling on a motion by a defendant for

severance, the court shall order the prosecuting

attorney to deliver to the court for inspection pursuant

to Rule 16(B)(1)(a) any statements or confessions made

by the defendants which the state intends to introduce

in evidence at the trial.”

The decision whether to grant a motion for separate

trials is a matter resting within the trial court's sound

discretion, and a reviewing court will not disturb that

decision on appeal absent a showing that the trial court

abused its discretion. State v. Torres (1981),

,

.

{¶ 53} Defendant and his co-defendant, Anthony Franklin, were

jointly indicted for possessing heroin, possessing criminal tools,

and engaging in a pattern of corrupt activity based upon multiple

acts of possessing and selling crack cocaine and heroin. The

predicate acts/offenses occurred on eight separate occasions

between May 13, 2006 and April 2, 2009. Both Defendant and Franklin

were present during many of these incidents. Joinder was proper

because these defendants participated together in the predicate

acts, and the crimes and these defendants were connected by the

same acts, the same evidence, and the same witnesses. Had

Defendant and Franklin been tried separately, the juries would 18

hear much of the same evidence.

{¶ 54} Defendant argues that he was prejudiced by the joinder

because of the admission of a statement of Franklin’s that

incriminated Defendant, resulting in a Bruton error. Bruton v.

United States,

,

,

(1968).

A Bruton problem arises in a joint trial of two or more defendants

when evidence of a confession or statement by a non-testifying

defendant is admitted that implicates the other defendant(s) in

criminal activity. Id.; Humphrey. Here, the State did not

present at the trial any statements made by Franklin that implicated

Defendant in criminal activity. Therefore, no Bruton problem

arises.

{¶ 55} Furthermore, the evidence presented at trial as to the

predicate offenses was not so complex that the jury was incapable

of segregating the proof as to each defendant. It is clear from

the evidence which of the two defendants participated in which

predicate act. The evidence relating to Defendant Griffin was

clear and direct, and established that Defendant was involved

in the incidents/offenses that occurred on October 16, 2008,

January 22, 2009, March 17, 2009, and April 1, 2009. The trial

court instructed the jury separately on each of these incidents

and instructed the jury to consider each defendant separate from

the other. Defendant and Franklin were properly tried together, 19

and Defendant has failed to demonstrate that he suffered prejudice

as a result of the joinder.

{¶ 56} Defendant’s fourth assignment of error is overruled.

FIFTH ASSIGNMENT OF ERROR

{¶ 57} “THE TRIAL COURT SHOULD HAVE ORDERED A MISTRIAL BASED

UPON PROSECUTORIAL MISCONDUCT.”

{¶ 58} Defendant argues that he was denied a fair trial as a

result of prosecutorial misconduct which included repeatedly

showing the jury a cardboard poster that labeled Defendant and

his co-defendant, Anthony Franklin, as part of a “drug trafficking

group.” We addressed this same argument in the appeal of

Defendant’s co-defendant, Anthony Franklin, and found that it

lacked merit because no prosecutorial misconduct was demonstrated

to the extent that the poster was used not as evidence but rather

for demonstrative purposes only, to help the jury keep track of

the incidents, and the jury was instructed accordingly. State

v. Franklin, 2nd Dist. Montgomery Nos. 24011, 24012,

. For the reasons stated in our opinion in Franklin,

Defendant’s fifth assignment of error is overruled.

SIXTH ASSIGNMENT OF ERROR

{¶ 59} “THE REMOVAL OF AFRICAN-AMERICAN JURORS BY PEREMPTORY

CHALLENGES VIOLATED APPELLANT’S DUE PROCESS AND EQUAL PROTECTION

RIGHTS, RESULTING IN THE DENIAL OF A FAIR TRIAL.” 20

{¶ 60} Defendant argues that the trial court committed

reversible error when it allowed the State to use peremptory

challenges to dismiss two African-American jurors during voir dire

based upon racial discrimination. We addressed this same

argument in the appeal of Defendant’s co-defendant, Anthony

Franklin, and concluded that it lacked merit because the State

provided race neutral explanations for its dismissal of both

jurors. State v. Franklin, 2nd Dist. Montgomery 24011 and 24012,

. For the reasons stated in our opinion in Franklin,

Defendant’s sixth assignment of error is overruled. The judgment

of the trial court will be affirmed.

FAIN, J., concurs.

FROELICH, J., concurring:

{¶ 61} “A trial judge ‘need take no vow of silence. He is there

to see that justice is done or at least to see that the jury have

a fair chance to do justice.’ He or she ‘ought to be always the

guiding spirit and the controlling mind at a trial.’” (Citations

omitted.) Commonwealth v. Dias,

,

(1977). Further, a trial court’s interrogation of a witness

is not deemed partial for purposes of Evid.R. 614(B) merely because

the evidence elicited during the questioning is potentially

damaging to the defendant. State v. Blankenship,

,

(12th Dist. 1995).

{¶ 62} At the same time, a judge must keep in mind that the

State has the duty and burden to prove a defendant’s guilt and

should not intentionally fill in gaps in the prosecution’s or

defendant’s case. A judge in our adversary system is not an active

participant in the gathering or prosecution of evidence. See,

e.g., Reamey, Innovation or Renovation in Criminal Procedure: Is

the World Moving Toward a New Model of Adjudication?, 27 Ariz.

J. Int’l & Comp. L. 693, fn. 18 (2010).

{¶ 63} I concur with the majority that, with the record before

us, the judge did not demonstrate bias or abandon his neutral role.

. . . . . . . . . .

Copies mailed to:

Kirsten A. Brandt, Esq. Kent J. Depoorter, Esq. Hon. Steven K. Dankof