holding that the right to counsel was violated when the trial court gave defendant the choice of continuing trial with appointed counsel whom defendant did not trust or proceeding pro se, when record did not indicate that defendant’s request for other counsel was for purposes of delay or was not in good faith
How later courts described this case
- holding that the right to counsel was violated when the trial court gave defendant the choice of continuing trial with appointed counsel whom defendant did not trust or proceeding pro se, when record did not indicate that defendant’s request for other counsel was for purposes of delay or was not in good faith
- finding "possession may be established where the defendant occupies the premises with others but the drugs are found in the defendant's living area and in plain view throughout the apartment" and "readily useable drugs in close proximity to an accused may constitute sufficient circumstantial evidence to support a finding of constructive possession."
- stating that a defendant is not entitled to a new attorney unless he establishes good cause in the form of a conflict of interest, an irreconcilable conflict, or a complete breakdown of communication
- holding that readily usable drugs found in close proximity to defendant can establish constructive possession
Written by the judges who cited it.
The opinion
Markus, J.,
concurring. I agree that defendant was denied the effective assistance of counsel without a valid waiver of that right. I also agree that defendant failed to demonstrate a denial of his speedy trial rights, that the evidence supported the verdict, and that the court should have advised defendant about his right to seek conditional probation. Therefore, I agree with the majority’s disposition of Assignments of Error Nos. I, III, IV, V, and VI. However, I disagree with Judge Day’s disposition for Assignment of Error No. II.
In my view, R.C. 2945.37 constitutionally places the burden on the defense to prove the defendant’s incompetence by a preponderance of the evidence. Cf.
Leland
v.
Oregon
(1952), 343 U.S. 790 (state may constitutionally require
defendant
to prove insanity defense beyond a reasonable doubt), cited with approval in
Jones
v.
United States
(1983), 77 L.Ed. 2d 694, 707 , at fn. 17. In this case, the preponderance of the evidence supported a finding that defendant was competent, even if the state had the burden of proof. The only expert who testified said that defendant was competent to understand the charges and the trial situation and competent to cooperate with his counsel. While defense cross-examination raised issues about that psychologist’s credibility, the court could certainly accept and believe those expert opinions.
If defendant had no burden to prove his incompetence, his counsel still had the burden to rebut the state’s evidence with V.A. records or otherwise. The state had no burden to search for every conceivable item of evidence which might challenge its own evidence. The state did not possess the allegedly significant V.A. records, so it had no duty to supply them as potentially exculpatory material. Defense counsel should have subpoenaed their custodian, if he considered those records were significant.