State v. Dean

[Cite as State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070.]

THE STATE OF OHIO, APPELLEE, v. DEAN, APPELLANT.

[Cite as State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070.]

Criminal law — Aggravated murder — Sixth Amendment violation — Death

penalty conviction and sentence vacated, and cause remanded.

(No. 2006-1126 — Submitted August 10, 2010 — Decided October 26, 2010.)

APPEAL from the Court of Common Pleas of Clark County,

No. 05-CR-348.

__________________

LUNDBERG STRATTON, J.

{¶ 1} This case involves a defendant’s Sixth Amendment request to

represent himself, which was denied by the trial judge because the request was

viewed as involuntary. Yet the trial judge’s bias against and threats to defense

counsel created the involuntary nature of defendant’s choice. Counsel stated that

they could no longer fully represent their client because the judge had made

statements against them. This unusual conundrum had caused counsel to be

apprehensive, anxious, and preoccupied over the judge’s intentions. However, the

judge refused to allow them to withdraw from the case. The defendant, seeing the

drama between the judge and his counsel unfold, believed that adequate

representation from these attorneys was impossible. Thus, he asked to represent

himself. The judge refused the request because the defendant had stated that he

was “under duress.” But the judge himself had created that duress. This dilemma

permeated the entire trial.

{¶ 2} This court has a responsibility to preserve the integrity of the

criminal justice system, which includes a duty to ensure that all defendants have

received a fair trial from an impartial judge. Where the record demonstrates that

that has not occurred, the remedy is a new trial. We are mindful of both the

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anguish suffered by the family and friends of the victims and the substantial

evidence of defendant’s participation in a senseless murder. Yet based on the

highly extraordinary facts of this case, we are required to reverse the convictions,

vacate the death sentence imposed on defendant-appellant, Jason Dean, and

remand this case for a new trial. To that end, our decision follows.

Case history

{¶ 3} Dean was accused of shooting at Yolanda Lyles and Andre Piersoll

at a convenience store, shooting at the vehicle and home of Devon Williams,

shooting at Shanta Chilton, Hassan Chilton, Shani Applin, and Applin’s young

child Jaida Bullock,1 and then fatally shooting and robbing Titus Arnold. Dean

was indicted on two counts of aggravated murder. Count 12 charged Dean with

the aggravated murder of Arnold with prior calculation and design. Count 13

charged him with the aggravated murder of Arnold while committing aggravated

robbery. Both counts included death-penalty specifications because these crimes

represented a course of conduct, R.C. 2929.04(A)(5), and because the murder

occurred during the aggravated robbery, and although he was not the principal

offender, Dean committed the aggravated murder with prior calculation and

design, R.C. 2929.04(A)(7).

{¶ 4} Dean was also indicted on six counts of attempted murder: Count

1 charged Dean with the attempted murder of Piersoll, Count 2 charged the

attempted murder of Lyles, Count 7 charged the attempted murder of Shanta

Chilton, Count 8 charged the attempted murder of Hassan Chilton, Count 9

charged the attempted murder of Shani Applin, and Count 10 charged the

attempted murder of Jaida.

{¶ 5} Dean was also indicted on eight additional counts. Counts 5 and 6

charged Dean with discharging a firearm into an occupied structure. Counts 3 and

14 charged him with aggravated robbery. Counts 4, 11, 15, and 16 charged Dean

1. Jaida is referred to as Jaeada Applin in Count 10.

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with having a weapon under a disability. Additionally, firearm specifications

were included under 12 counts of the indictment.

{¶ 6} Dean pleaded not guilty to all charges. However, the jury found

Dean guilty, and he was sentenced to death.

{¶ 7} Dean now appeals to this court as a matter of right. In this appeal,

Dean raises 23 propositions of law.

Judicial bias and request for self-representation.

{¶ 8} In proposition of law I, Dean argues that the trial court erred by

overruling his request to waive counsel and represent himself. In proposition of

law III, Dean argues that his rights to a fair trial and due process were violated

because the trial judge was biased against him and his attorneys. Because these

issues are intertwined, we will address them together. In addition, an

understanding of the pretrial history is necessary to set the stage for the resulting

conflict.

{¶ 9} 1. Facts. Before trial, the state certified to the court that disclosure

of the address or whereabouts of a witness, Crystal Kaboos, Dean’s girlfriend,

might subject her to physical harm or coercion. See Crim.R. 16(B)(1)(e).

Thereafter, defense counsel, Richard Mayhall and John Butz, requested a hearing

on the state’s certification.

{¶ 10} On April 24, 2006, the trial court held a hearing on the

certification. No witnesses were called at the hearing, and the defense agreed to

proceed on the basis of the state’s averments. The state averred that threats had

been made against Kaboos because she had testified against codefendant Wade.

The trial court ruled that it “accepted the State’s certification that the disclosure of

witness Kaboos’ address may subject her to physical harm or coercion.

Accordingly, pursuant to Criminal Rule 16(B)(1)(e), the State need not disclose to

the defense witness Kaboos’ address.”

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{¶ 11} On May 3, 2006, the defense moved for the trial judge to

disqualify himself from presiding over Dean’s trial because the judge had heard

evidence on the Crim.R. 16(B)(1)(e) certification. The defense invoked State v.

Gillard (1988), 40 Ohio St.3d 226, 533 N.E.2d 272, paragraph one of the

syllabus, which holds, “When the state seeks to obtain relief from discovery or to

perpetuate testimony under Crim.R. 16(B)(1)(e), the judge who disposes of such a

motion may not be the same judge who will conduct the trial.” Gillard, which we

overruled on other grounds, State v. McGuire (1997), 80 Ohio St.3d 390, 402-403,

686 N.E.2d 1112, adopted this rule because “when a judge hears information that

a defendant has attempted to harm, coerce, or intimidate an opposing witness,

there is an unnecessary risk that the judge will harbor a bias against that

defendant.” Gillard at 229. Nothing in the record establishes that the defense

counsel, the trial judge, or the prosecutor was aware of, or remembered, the

Gillard holding. 2

{¶ 12} On May 4, 2006, the trial court held a hearing on the motion to

disqualify. On May 5, the trial court overruled the motion for two reasons. First,

the trial court anticipated “overwhelming evidence” of the defendant’s guilt at

trial, which would render any Gillard violation harmless. Gillard, 40 Ohio St.3d

at 229, 533 N.E. 2d 272. Second, the trial court stated that it “has not heard any

evidence about the defendant and whether or not he and/or alleged cohorts have

threatened State’s witnesses,” as the certification hearing involved lawyer

argument only.

{¶ 13} On May 8, 2006, jury selection began. On May 10, 2006, trial

counsel filed an affidavit of disqualification against the judge. Trial counsel

claimed in the affidavit that the judge had demonstrated bias and prejudice against

2. During oral argument, appellate counsel for the state, who was also the prosecutor at trial,

acknowledged that he had also failed to bring Gillard to the court’s attention. He stated that he

had overlooked Gillard because he had been focused on preparing for trial.

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the defendant by (1) overruling an unopposed defense motion to permit Dean to

appear at trial without shackles, (2) presiding over the Crim.R. 16(B)(1)(e)

certification hearing and then refusing to disqualify himself, and (3) prejudging

the defendant’s guilt by making the statement that the court anticipated the

presentation of “overwhelming evidence of guilt.” Gillard, 40 Ohio St.3d at 229,

533 N.E.2d 272.

{¶ 14} In response to the defense motion for disqualification, the state

claimed that the affidavit of disqualification was a calculated and deliberate

attempt to have the judge removed from the case. The state argued that trial

counsel had neither raised the issue that the certification matter should be heard

by another judge nor objected to the presiding judge’s participation. The state

supported its claim by providing an excerpt of an April 30, 2006 recorded phone

conversation between Dean and his brother. This conversation suggested the

possibility that the trial judge might not be able to remain on his case because he

had presided over the Gillard hearing.

{¶ 15} On May 11, 2006, Chief Justice Thomas Moyer denied the

affidavit of disqualification. Chief Justice Moyer stated, “Although on their face

the judge’s statements in his judgment entry may appear to suggest a

predisposition in this case, * * * the tone and the content of [the judge’s] response

show that he is neither biased nor prejudiced against the defendant.” (Emphasis

added.)

{¶ 16} After the parties were notified of Chief Justice Moyer’s decision,

the relationship between the judge and the defense attorneys began to deteriorate.

On May 12, 2006, the trial court and the parties discussed the denial of the

affidavit of disqualification. The trial court informed trial counsel that it had

“some very serious concerns about the allegations that were set forth in the State’s

response,” even though both the judge and the prosecutor had also overlooked

Gillard. Richard Mayhall, the lead defense counsel, denied doing anything

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wrong. However, the trial court stated that the state’s allegation, which makes

“serious accusations against defense counsel[,] * * * on its face appears to be

corroborated by several facts, and the Court maintains some very serious concerns

about defense counsel and the manner in which they’re operating in this

courtroom.” The trial court further stated that “in the interest of getting this case

back on track, the Court will take that matter up at a later time; but I do assure the

parties that that matter will be taken up * * *, preferably at the conclusion of this

case.”

{¶ 17} On May 15, 2006, John Butz, the assistant defense counsel,

informed the trial court that defense counsel were concerned about possible

disciplinary sanctions. Butz stated, “[Q]uite honestly, we don’t think we can

effectively represent Mr. Dean from this point on until whatever the issue is is

resolved.” Mayhall also told the court, “[A]fter your comments, I was

intimidated; * * * if I did something wrong, I’ll accept responsibility for it. But

with this hanging over my head, * * * I don’t think I’m willing to risk further

angering you, and I think that would affect my ability to represent Mr. Dean.”

{¶ 18} In response, the trial court repeated that he would “handle the

matter” after trial and “didn’t prejudge the situation.” In response to a defense

question about the allegations, the trial court stated, “I’m not saying that you’re

guilty of them, but it appears from the allegations that you were manipulating the

Court and deceiving the Court in an effort to have this Judge removed from the

case.” The trial court also told counsel, “I’m sorry you guys got yourself into this

situation; but we’re going to proceed this morning.”

{¶ 19} Later on the morning of May 15, trial counsel filed a motion to

withdraw as counsel. The motion included Mayhall’s and Butz’s affidavits.

Mayhall expressed concern about aggressively representing his client when doing

so might further anger the judge and expose counsel to harsher punishment at the

end of trial. Mayhall also stated that Dean was now potentially a witness against

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him regarding what he actually told Dean about the judge’s disqualification. Butz

stated that the trial court’s threat of contempt had caused him to be “physically

and emotionally sick” and had had a “chilling effect” on his ability to zealously

represent Dean.

{¶ 20} The trial court denied the motion to withdraw. The trial court

stated that he “certainly had no intention of causing a chilling effect on defense

counsel when it comes to zealously representing their client.” He added, “Mr.

Mayhall, I certainly have no problem with aggressive cross-examination. * * * I

have no problem with objections that are made during the course of trial, and I

have no problems with motions for mistrials if you think such motions are

warranted.” The trial court added, “I think that the events that happened last week

— and, again, I’m not going to get to whether or not the allegations are true —

but I think behavior in that fashion is something that this Court frowns upon. * *

* I don’t like manipulation, and I don’t like — I just don’t like playing games.”

{¶ 21} On May 16, 2006, Dean informed the court that he did not feel he

could receive a fair trial with current counsel. Dean said that he had “the

impression” that his counsel had offended the court and that the judge was taking

the matter personally. Dean requested new counsel or wanted to defend himself,

a request he immediately asked to have stricken from the record. The trial court

told Dean, “I’m giving them free rein to defend you in an ethical manner * * *

and so far I see them doing that. So, I appreciate your concern, and I’ll continue

to monitor the situation.”

{¶ 22} Thereafter, Mayhall sought clarification about the term

“unethical.” The trial court responded, “Manipulating the Court, defrauding the

Court, deceiving the Court. I think that’s unethical behavior; and if it’s

established that you did that, you’ll be held accountable.” In reply, Mayhall said,

“If we could get the issue settled one way or another, then I can come to work

every day and think about this case, not think about what’s going to happen to me

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three weeks from now when it’s over. And * * * I’ll tell you, Judge, that’s all I’m

thinking about.” The trial court replied, “I didn’t put you in that situation. You

put yourself there so I’m not here to bail you out. You conduct yourself the way

you think you should conduct yourself, and you deal with the consequences. It’s

not my responsibility to hold your hand.”

{¶ 23} The next day, Dean informed the court that his counsels’

representation had continued to “deteriorate.” He said that his counsel had shown

a “lack of enthusiasm in their cross-examination of the witnesses” and mentioned

“their lack of objections.” Dean implored the court to resolve the allegations

against his attorneys before the trial continued. The trial court replied that earlier

in the day, and with defense counsel’s consent, it had explored with the

prosecution options for resolving the allegations, including staying the trial.

However, the trial court had decided to continue with the trial, saying, “I stand

behind the statement I made yesterday, that I did not put them in this situation.

They’ve put themselves in it. * * * Your attorneys are concerned that they might

be held in contempt. I’m here to tell them to suck it up, be a professional, do the

best job you can do.”

{¶ 24} After the trial court denied counsels’ motion to withdraw, Dean

informed the court, “I’d like to relieve Mr. Mayhall and Mr. Butz in this case. I

believe it’s my right to defend myself, and that’s what I’d like to do at this point.”

{¶ 25} The trial court discussed the timeliness of the request and asked

whether it was being made for purposes of delay. Dean told the court, “I’m

willing to proceed immediately. * * * This is not designed to delay this trial in

any way.” The parties also discussed arranging a psychological evaluation to

determine Dean’s competency to waive counsel. Trial counsel told the court that

Dean had been evaluated extensively by Dr. Jeffrey Smalldon, a psychologist, and

Dr. Smalldon would be able to address this issue without conducting a further

examination.

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{¶ 26} The trial court then questioned Dean to determine whether he fully

understood and waived his right to counsel. During this colloquy, Dean informed

the court that he was aware of the charges against him, that he understood that the

death penalty was a possible sentence if he was found guilty of the capital

specifications, and that he knew that he had the right to be represented by two

capital-qualified attorneys throughout the proceedings. Dean also understood that

he would be representing himself and would be responsible for cross-examining

witnesses, making objections and arguments, and presenting his own witnesses.

{¶ 27} The trial court then questioned Dean regarding the voluntariness of

his waiver. Dean stated that no one had made any promises or threats to get him

to waive counsel. The trial court then conducted the following colloquy:

{¶ 28} “The Court: And is this something you want to do voluntarily?

{¶ 29} “The Defendant: Yes.

{¶ 30} “The Court: All right. Well —

{¶ 31} “The Defendant: I would just like the record to reflect that I’m

doing this under duress due to you continually not addressing that issue of Mr.

Butz’s and Mr. Mayhall’s alleged unethical actions. [Emphasis added.]

{¶ 32} “The Court: All right. Well, that’s going to be a problem because

I’m not going to accept a waiver of counsel if you’re telling me it’s under duress.

All right. Because you’re essentially saying that the Court’s forcing you to do

this, and I’m not going to put you or myself in that position.”

{¶ 33} Following this exchange, the court recessed for the day to

determine when Dr. Smalldon could testify about Dean’s competence. The trial

court added, “[I]t’s going to give you a night to sleep on this and think about it.

Certainly you can change your mind. But if you feel that you’re doing this under

duress, then that’s going to be a problem. * * * I’m not going to let you do it

because that’s just not going to be appropriate.”

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{¶ 34} On the following day, the trial court asked Dean whether he still

wanted to represent himself. Dean replied, “Absolutely.” The trial court and

Dean then had the following exchange:

{¶ 35} “The Court: All right. Well, I’ve had the evening to think about it;

and as I told you yesterday when I was citing the case law, that you do have a

constitutional right to represent yourself. The problem I foresee * * * as I

indicated yesterday, is your statement that you were doing this under duress. * *

*.

{¶ 36} “The Defendant: I just — I made that statement just so that would

be made for the record on future reference for the appeal.

{¶ 37} “The Court: Well, I understand that. The problem is it’s one of

those things where * * * you’ve said it; and now it’s out there, and I have

concerns about letting you waive your right to an attorney because the way it

appears, at least by your statement, is that I’m indirectly forcing you to do that.

{¶ 38} “The Defendant: That’s not the case at all. As I said, the only

reason I did that was for that to be on the record for future reference for my

appeal in the process of this. I fully understand what I did, why I made that

statement. * * *

{¶ 39} “I don’t feel in any way that you’re biased against me, prejudiced

against me, have a vendetta against me. I feel completely confident to defend

myself.”

{¶ 40} Thereafter, the trial court overruled Dean’s request to waive

counsel because it was not “voluntary.” The court stated, “I cannot accept a

waiver of trial counsel in a capital case if there’s any hint that it’s not being done

voluntarily and that it’s being done under duress, especially because he’s claiming

that the duress or the pressure or the coercion is coming from the Court, whether

directly or indirectly.” The trial court said nothing about calling Dr. Smalldon as

a witness.

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{¶ 41} Following the trial court’s ruling, Dean asked to retract his

statement about waiving counsel under duress:

{¶ 42} “The Defendant: * * * If necessary, I would like to retract any

statements I made or any reference I made to being under duress if that’s the

case. Strike that from the record. However you guys go about doing that.

{¶ 43} “I feel at this point it is impossible for Mr. Mayhall and Mr. Butz

to defend me adequately in any way, shape, or form. And I — I need to defend

myself because the truth needs to be [sic] come out here; and the way they’re

doing it, it can’t happen. It just can’t happen.

{¶ 44} “My constitutional rights are being violated. * * * I can’t

understand this at all. Do I have the right to defend myself? * * * I would like to

be granted that. That’s all I ask.” (Emphasis added.)

{¶ 45} Thereafter, the trial court stated, “[Y]our position has been made

clear for the record” and ordered the trial to continue. Dean said nothing further

about representing himself.

{¶ 46} On June 13, 2006, after the trial had concluded and Dean had been

sentenced, the trial court filed an entry finding Mayhall and Butz in direct

criminal contempt and fining them each $2,000. The trial court made findings

that “defense counsel, in a calculated scheme to remove this Court from the Dean

case, manipulated the Court into presiding over a Criminal Rule 16(B)(1)(e)

hearing so that the Court would be disqualified from presiding over the Dean trial

pursuant to Gillard.” The trial court determined that one of counsels’ motives

stemmed from “a longstanding personal revulsion of the Court, dating back to

when this Judge was an assistant prosecuting attorney. Accordingly, the Court

vehemently disagrees with Mr. Butz’s statement that ‘This is not a personal attack

on the Court.’ ”

{¶ 47} The court of appeals reversed the findings of criminal contempt.

State v. Dean, Clark App. Nos. 2006CA61 and 2006CA63, 2007-Ohio-1031. The

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court held that Mayhall and Butz should have been afforded a hearing on the

contempt allegations. Id. at ¶ 28. The court also held that “statements from the

trial court indicated that the court’s impartiality was impaired” and that a different

judge should have conducted an evidentiary hearing. Id. at ¶ 32-33. On remand,

the judge cited Mayhall and Butz for indirect criminal contempt and transferred

the matter to a different judge for a hearing.3

{¶ 48} 2. Discussion. The issues of judicial bias and the defendant’s right

to self-representation are inextricably entwined in this case. “It is well settled that

a criminal trial before a biased judge is fundamentally unfair and denies a

defendant due process of law.” State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-

2128, 767 N.E.2d 166, ¶ 34, citing Rose v. Clark (1986), 478 U.S. 570, 577, 106

S.Ct. 3101, 92 L.Ed.2d 460. Judicial bias has been described as “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 ex rel. Pratt v. Weygandt (1956), 164 Ohio St.

463, 58 O.O. 315, 132 N.E.2d 191, paragraph four of the syllabus.

{¶ 49} In Liteky v. United States (1994), 510 U.S. 540, 555, 114 S.Ct.

1147, 127 L.Ed.2d 474, the Supreme Court held that “opinions formed by the

judge on the basis of facts introduced or events occurring in the course of the

current proceedings, or of prior proceedings, do not constitute a basis for a bias or

partiality motion unless they display a deep-seated favoritism or antagonism that

would make fair judgment impossible. Thus, judicial remarks during the course

of a trial that are critical or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not support a bias or partiality challenge.” On

the other hand, “[t]hey may do so [support a bias challenge] if they reveal an

opinion that derives from an extrajudicial source; and they will do so if they

3. Nothing in the record indicates the disposition of further proceedings in the case.

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reveal such a high degree of favoritism or antagonism as to make fair judgment

impossible.” (Emphasis sic.) Id.

{¶ 50} The record shows that the trial judge harbored a bias against

defense counsel that was manifested through his comments and rulings during the

trial. This bias first became apparent after counsel filed the affidavit of

disqualification, and it continued throughout the rest of the proceedings. We will

now review the trial judge’s actions that lead us to this conclusion.

{¶ 51} As previously discussed, the trial judge suggested that counsel had

manipulated, defrauded, and deceived the court in requesting him to preside over

the certification hearing in order to disqualify him from sitting on the trial, even

though the trial judge himself had a duty to be aware of Gillard. The trial judge

threatened counsel with sanctions and warned them, “[I]f it’s established you did

that, you’ll be held accountable.” After counsel moved to withdraw from the

case, the trial judge expressed his belief that counsel were using their concern

about being held in contempt as “leverage to try to get this Court to come off of

its stance to hold them accountable for anything they may have done.”

{¶ 52} The trial court’s accusatory and threatening comments toward

counsel were made during judicial rulings and other matters during trial.

Normally, such remarks would not establish judicial bias. Liteky, 510 U.S. at 555,

114 S.Ct. 1147, 127 L.Ed.2d 474; see also State v. Sanders (2001), 92 Ohio St.3d

245, 278, 750 N.E.2d 90. However, the trial judge’s comments provide evidence

of judicial bias when they are considered in the context of the trial judge’s other

rulings and ill-tempered remarks during and after the trial.

{¶ 53} The trial court demonstrated this bias on other occasions by

denying counsel reasonable opportunities to consult with Dean. In the first

situation, Terry Smith, a jailhouse informant, testified during the state’s case-in-

chief about Dean’s admissions to him describing his involvement in Arnold’s

murder. Smith also testified that Dean had admitted making disparaging remarks

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about Arnold’s family in letters that he had sent to Jason Mans. Following

Smith’s testimony, trial counsel asked for a recess to talk to Dean, and the

following colloquy ensued:

{¶ 54} “Mr. Mayhall: And, you know, the only other person who knows

anything about these statements would be my client. I would just like five or ten

minutes to talk with him.

{¶ 55} “Mr. Schumaker [the prosecutor]: And we have no objection to

that.

{¶ 56} “Mr. Mayhall. Okay.

{¶ 57} “The Court: All right. Hold on. This witness was disclosed on

May 11 or May 12. That was — today’s the 23rd. That was 12 days ago so we’re

not going to take trial time to do investigation so you can proceed with your

cross-examination.” (Emphasis added.)

{¶ 58} The trial court’s refusal to provide counsel with five or ten minutes

to talk with Dean, particularly when the state did not object to the recess,

displayed antagonism toward the defense and was unreasonable. Moreover, the

trial court’s rulings ran in one direction. The trial court allowed the state to recall

seven witnesses during the trial. The trial court also granted the state a delay in

presenting its case after a videotape malfunctioned. Thus, the trial court’s refusal

to grant the defense a short recess was not justified by the need to avoid

unnecessary delays.

{¶ 59} In another situation, the trial judge denied counsel a reasonable

opportunity to consult with Dean after he informed counsel that he wanted to

testify in his own behalf. After the lone defense witness testified, trial counsel

informed the judge that Dean had changed his mind and wanted to testify. Trial

counsel requested a recess to prepare Dean’s testimony because they had not

planned for him to testify. The trial court denied this request.

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{¶ 60} Trial counsel replied that they would be committing ineffective

assistance of counsel if they were not allowed to prepare Dean’s testimony. The

prosecutor replied that he had no objection to “about a ten-minute recess.” The

trial court stated, “I don’t think they’re going to say a ten-minute recess is

sufficient to prepare their client for testimony in a capital murder case.” The trial

court then said, “[T]his is a unilateral decision of the defendant’s * * *. And if he

wants to get up here and tell his side of the story * * * I don’t think it takes * * *

much preparation for the defense attorneys just to say, ‘What happened? What’s

your side of the story?’ ” The trial court also told counsel, “I understand your

position. There’s no question you’re being put in a horrible position.” In

response, trial counsel stated, “Ten minutes is better than no time at all.” The trial

court then stated, “All right. We’ll give you ten minutes.” Thereafter, trial

counsel informed the court that after consulting with Dean, “It is his wish not to

testify and to allow us to rest and proceed to closing argument.”

{¶ 61} Clearly, Dean’s decision to testify in his own behalf was one of the

crucial decisions of the defense case. The trial judge initially denied the defense a

recess on the stated ground that the defense needed no additional time to prepare

and present Dean’s testimony. Trial counsel was ultimately given the ten minutes

they requested to consult with Dean, their client on a death-penalty case.

However, trial counsel requested ten minutes to consult with Dean only after the

trial judge had initially denied counsel any additional time to talk with Dean. In

this situation, the trial judge displayed annoyance and impatience with the

accused and counsel. We also find that the trial judge’s intemperate and one-

sided comments manifested bias against them.

{¶ 62} Finally, the trial judge’s finding of criminal contempt showed that

his bias was based on feelings of ill will toward counsel that predated the trial.

The trial judge found that one of counsels’ motives for trying to remove him from

the case was their “longstanding personal revulsion of the Court, dating back to

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when this Judge was an assistant prosecuting attorney.” He also stated that

“defense counsel was setting the Court up for the next move” and characterized

one of counsel’s arguments as being cast “in a suspiciously enthusiastic tone.”

{¶ 63} Unlike his other statements, the trial court’s comments about

counsel’s “longstanding personal revulsion” were from an “extrajudicial source.”

Liteky, 510 U.S. at 555-556, 114 S.Ct. 1147, 127 L.Ed.2d 474. These comments,

representing an “extrajudicial source,” place the judge’s other accusatory and

threatening remarks into context. They show the likelihood that his earlier

assurances that he would remain unbiased were untrue.

{¶ 64} The state responds to Dean’s claims by pointing out that Dean told

the judge that he did not believe that the judge was biased against him. During

questioning about self-representation, Dean told the court: “I don’t feel in any

way that you’re biased against me, prejudiced against me, have a vendetta against

me.”

{¶ 65} Even assuming that Dean did not feel the judge was biased against

him, we note that his claim that the judge was biased against his counsel remains.

Judicial bias exists if it is directed toward counsel. Indeed, “the judge who is so

hostile to a lawyer as to doom the client to defeat deprives the client of the right to

an impartial tribunal.” Walberg v. Israel (C.A.7, 1985), 766 F.2d 1071, 1077.

{¶ 66} In sum, we find that the judge was biased against counsel to such a

degree that fair judgment was impossible. Liteky, 510 U.S. at 555-556, 114 S.Ct.

1147, 127 L.Ed.2d 474. The judge’s deep-seated bias against counsel also tainted

his denial of Dean’s request to represent himself at trial, creating the impossible

conflict. We now address that issue.

{¶ 67} “The Sixth 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

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St.2d 366, 74 O.O.2d 525, 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. “In

order to establish an effective waiver of right to counsel, the trial court must make

sufficient inquiry to determine whether defendant fully understands and

intelligently relinquishes that right.” Id. at paragraph two of the syllabus; see also

Crim.R. 44(A). If a trial court denies the right to self-representation when

properly invoked, the denial is per se reversible error. State v. Reed (1996), 74

Ohio St.3d 534, 535, 660 N.E.2d 456, citing McKaskle v. Wiggins (1984), 465

U.S. 168, 177, 104 S.Ct. 944, 79 L.Ed.2d 122, fn. 8.

{¶ 68} The assertion of the right to self-representation must be clear and

unequivocal. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d

81, ¶ 38. A request for self-representation may be denied when circumstances

indicate that the request is made for purposes of delay or manipulation of the trial

process. See United States v. Frazier-El (C.A.4, 2000), 204 F.3d 553, 559.

{¶ 69} Dean’s request to represent himself was clear and unequivocal.

Furthermore, we do not find Dean to be manipulative when he stated, “I’m doing

this under duress.” Rather, Dean invoked his right to self-representation because

he was caught in the middle of a dispute between the judge and his counsel in a

case in which his very life was at stake. The trial judge had demonstrated

animosity toward his counsel since they filed the affidavit of disqualification

against him. The trial judge accused counsel of serious misconduct, threatened to

sanction counsel if he confirmed his suspicions, and denied their repeated requests

to withdraw from the case even though they informed the court that the

allegations had a “chilling effect” on their ability to zealously represent Dean.

Dean was present and heard all these exchanges. Under these circumstances,

Dean was legitimately concerned that the trial judge’s animosity and bias against

his counsel might interfere with his ability to receive a fair trial. Moreover,

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Dean’s motives for seeking to represent himself should have been clear to the

judge because of what had occurred with counsel up to that point.

{¶ 70} Matters then worsened. When it was clear to Dean that the judge

would not allow him to represent himself because of his statement about acting

under duress, Dean attempted to retract the statement. The trial judge rejected

Dean’s attempt to retract his statement. Dean argued that his feelings of duress

simply reflected his own doubts about his counsel’s willingness to represent him

effectively; Dean tried to assert that his request to waive counsel was truly

voluntary. Dean’s explanation was not persuasive; he was clearly backtracking to

try to persuade the judge to allow him to represent himself.

{¶ 71} United States v. Garey (C.A.11, 2008), 540 F.3d 1253, supports

Dean’s argument. In Garey, three days before trial, the defendant filed a motion

to disqualify counsel, alleging conflicts of interest and irreconcilable differences

with him. Id. at 1258-1259. The defendant requested substitute counsel. Finding

no conflicts, the trial judge denied these requests. The judge then explained to the

defendant his options and asked whether he wished to proceed to trial with his

appointed counsel or wished to represent himself. The defendant replied, “I am

not going to let [appointed counsel] represent me,” and “I’m going to

involuntarily represent myself * * *.” Id. at 1259-1260. The trial court ruled that

the defendant could represent himself because he had “knowingly and voluntarily

decided to proceed with representation of himself.” Id. at 1260. The defendant

appealed, claiming that the court denied him his Sixth Amendment right to

counsel because he had never affirmatively asked to represent himself. Id. at

1262.

{¶ 72} The trial court’s ruling was upheld on appeal. The court stated that

a defendant may “intentionally and voluntarily waive his right to counsel and

accept the consequent necessity of self-representation in more than one way.”

Garey, 540 F.3d at 1265. The court stated, “So long as the trial court is assured

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the defendant (1) understands the choices before him, (2) knows the potential

dangers of proceeding pro se, and (3) has rejected the lawyer to whom he is

constitutionally entitled, the court may, in its exercise of its discretion, discharge

counsel * * *.” Id. at 1267. In finding the defendant’s request voluntary, the

court stated, “No less than four times, Garey rejected [his counsel’s]

representation outright, and several times more he expressed his intent to

represent himself (albeit ‘involuntarily’). By rejecting appointed counsel, Garey

voluntarily chose to proceed pro se as surely as if he had made an affirmative

request to do so.” Id. at 1269.

{¶ 73} In this case, the scenario was even more complicated. There is no

evidence that Dean was dissatisfied with his attorneys until the dispute arose

between counsel and the judge. Dean did not become concerned that his attorneys

could not represent him until counsel began telling the judge that they could not

do so. After the judge refused their request to withdraw, Dean saw self-

representation as his only hope, a choice that the judge refused. This unique

scenario may have no precedent, but it clearly resulted in a tainted trial, with the

defendant caught in the middle.

{¶ 74} As in Garey, Dean understood the choices before him regarding

representation, he was fully advised about the potential dangers of proceeding pro

se, and he rejected repeatedly the attorneys assigned to represent him. Under

these circumstances, the trial court abused its discretion by finding that Dean’s

request for self-representation was involuntary and by refusing to allow him to

proceed pro se, especially when the trial judge’s own conduct resulted in the trial

court’s finding of involuntariness.

{¶ 75} Based on the foregoing, we find that propositions I and III have

merit, and the convictions and the sentence must be vacated. We do not reach this

decision lightly. However, we must ensure that a defendant’s constitutional right

to self-representation is protected and that we maintain the integrity of our judicial

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system. Moreover, this case clearly went beyond the normal disputes that

sometimes arise between counsel and the trial judge during trial. Here, the

disputes directly infringed upon the defendant’s right to self-representation.

{¶ 76} Because of our disposition of this case, the remaining issues raised

in the appellant’s brief are moot.

Judgment vacated

and cause remanded.

BROWN, C.J., and PFEIFER, O’CONNOR, O’DONNELL, LANZINGER, and

CUPP, JJ., concur.

__________________

Stephen A. Schumaker, Clark County Prosecuting Attorney, and Darnell

Carter and David Wilson, Assistant Prosecuting Attorneys, for appellee.

Timothy Young, Ohio Public Defender, and Joseph E. Wilhelm, Kathryn

L. Sandford, and Jennifer A. Prillo, Assistant Public Defenders, for appellant.

______________________

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