Summary
In State v. Price (1973), 34 Ohio St.2d 43 [63 O.O.2d 82], this court held that a denial of a continuance is not an abuse of discretion where movant's counsel asserts to the court that he is in fact prepared for trial.
Summary of this case from State v. JohnsonOpinion
No. 72-576
Decided April 25, 1973.
Criminal law — Continuance — Refusal to grant accused's request not abuse of discretion, when — Court appointed counsel states to court he is prepared for trial — And it appears, from the record, he zealously represented accused and performed his full duty.
The fact that the trial court refused a request made by an accused for a continuance of his trial based upon the accused's belief that his counsel had not had adequate time in which to prepare his defense is not sufficient ground for the reversal of a conviction, where, before trial, appointed counsel asserts to the court that he is prepared for trial, and where, upon examination of the record, it appears that appointed counsel zealously and earnestly represented the accused, and intelligently performed his full duty.
APPEAL from the Court of Appeals for Cuyahoga County.
Appellee, Paul Price, and his co-defendant below, Nathaniel Williams, were arrested on January 24, 1970, and subsequently indicted and convicted of armed robbery. Shortly before the arrest, two men held up the Cozy Nook Bar in Cleveland and fled on foot. An off-duty Cleveland police officer, who entered the bar while the robbery was in progress, followed one of the robbers outside and fired three shots at him and then lost sight of him. Upon the arrival of additional police officers, a trail of blood was followed to a Cleveland apartment. After gaining access to the apartment, the police discovered the appellee standing in a closet, with bandages on his leg and arm. Williams was found hiding behind a bed. The police also discovered two pistols, one in the closet and one on Williams' person, as well as bloodied clothing and a roll of nickels — a roll of nickels had been taken during the robbery.
On September 21, 1970, the Public Defender's office was appointed to represent the appellee. On October 13, 1970, before commencement of trial the following hearing was conducted out of the jury's presence:
"Mr. Breland: Well, the only thing I would say to the court at this time, your Honor, is that I am prepared and ready to go forward on this matter. Our staff has investigated this case, and I feel adequately and competently prepared and ready to proceed on this matter.
"Mr. Friedman: May the record also reflect that the prosecutor has turned his file over to Mr. Breland for his perusal and review.
"Mr. Breland: I might say that is true. I have had full access to the complete file of the prosecutor with reference to this matter.
"The Court: I believe the record should further indicate that on May 12, 1970, that this court assigned the office of the Public Defender to represent Mr. Paul Price.
"Mr. Price, do you wish to make a statement?
"Mr. Paul Price: Your Honor, I would like to say with all due respect to this attorney, he is not the assigned attorney to this case. I had Roger Hurley assigned to the case and he informed me that the case would be in this court the 13th, but that he probably wouldn't start because he was on another case and he would send another attorney to act for him to start the trial until he gets the chance to finish the other case that he has.
"The Court: Mr. Price, the court, after considerable delay because of the fact that you were going to hire your lawyer, finally in May had you down when this court was in Room 1 and assigned you counsel, counsel being assigned was the office of the Legal Aid Public Defender.
"Mr. Paul Price: I hate to disagree with the court, but the court appointed David Murry, your Honor, and this guy, I wrote a letter to you, asking you to take him off the case because he made the statement that he was a civil attorney and hadn't been familiar with the criminal law.
"The Court: And the court appointed the Public Defender.
"Mr. Paul Price: Yes, Mr. Hurley came and said he was on my case. He only had this case —
"The Court: The defense is represented in court and I have no reason to dispute Mr. Breland whom I consider to be a fine lawyer as well as Mr. Zavell and Mr. Friedman who are here. I consider him to be a fine lawyer and adequately prepared in this particular case to go forward.
"Mr. Paul Price: With all respect —
"The Court: Excuse me, Mr. Price. Let me finish. He has indicated that he has had the chance through his office to investigate — they have an investigator and they have investigated this case.
"He has also had the chance to go through the prosecutor's file in this matter and is prepared to present your case. I believe he can give you a fair and adequate trial.
"Mr. Paul Price: He went through those cases today, though, ten minutes ago. He was asking me about the case ten minutes ago. Ten minutes he asked me about witnesses and things that should be — just ten minutes ago. How can he be prepared for this case?
"The Court: Sit down, Mr. Price. I believe Mr. Breland.
"Mr. Paul Price: I have been up there nine months. Another day won't hurt.
"Mr. Breland: Your Honor, I have conferred with the defendant regarding this case and as the result of having conferred with the defendant in connection with this matter, as the result of having had the opportunity to review the prosecutor's file completely, completely regarding this matter, as the result of having conferred with our investigator, Mr. J.C. Williams, as the result of having gone over the matter with Mr. Hurley from our office with respect to this case, I feel adequately prepared to proceed and represent Mr. Price at this time.
"The Court: Thank you, sir.
"Now, Mr. Zavell.
"Mr. Zavell: If the court please, previously I had been informed by my client that he was thinking about waiving a jury, but at this time he will withdraw that waiver and he would request a jury trial.
"The Court: All right. Fine. Gentlemen, we will call the panel, then, in this particular case, if there is nothing else.
"Mr. Paul Price: Yes, sir I hate to be —
"The Court: You may give that to your lawyer.
"Mr. Paul Price: I am just trying to protect myself. I am not trying to be a pest, but this man said he went over the prosecutor's file. Do you know it was just ten minutes ago he got the prosecutor's file and no more than 15 or 20 minutes. How can he study those files in that length of time, your Honor?
"That is all I am trying to say. I am trying to protect myself. Would you present those to his Honor? I have a writ from federal court pending — would you permit that and see can I get a continuance on that ground?
"The Court: Sit down."
Appellee appealed to the Court of Appeals, which reversed the judgment of conviction.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Hyman Friedman, for appellant.
Messrs. Gold, Rotatori, Messerman Hanna and Mr. Harry A. Hanna, for appellee.
The sole question presented by this appeal is whether the trial court abused its discretion in refusing to grant the continuance requested by appellee. The Court of Appeals held that it did, citing Avery v. Alabama (1940), 308 U.S. 444, in support of its holding.
The judgment of the Court of Appeals is reversed. Avery presents facts substantially harsher than the case at bar, yet the Supreme Court of the United States upheld the conviction. The principal difference is that, in Avery, both defense counsel requested the continuance after receiving appointment some two or three days before trial, and submitted affidavits indicating that they were inadequately prepared. Both of the affidavits revealed that the attorneys were engaged in litigation of other cases between the time of their appointments and the Avery trial. In spite of these facts, the Supreme Court rejected Avery's claim that the trial court abused its discretion in failing to grant the requested continuance. Instead, at page 450, it held:
"Under the particular circumstances appearing in this record, we do not think petitioner has been denied the benefit of assistance of counsel guaranteed to him by the Fourteenth Amendment. His appointed counsel, as the Supreme Court of Alabama recognized, have performed their `full duty intelligently and well.' Not only did they present petitioner's defense in the trial court, but in conjunction with counsel later employed, they carried an appeal to the state Supreme Court, and then brought the matter here for our review. Their appointment and the representation rendered under it were not mere formalities, but petitioner's counsel have — as was their solemn duty — contested every step of the way leading to final disposition of the case. Petitioner has thus been afforded the assistance of zealous and earnest counsel from arraignment to final argument in this court."
It is difficult to understand why the Court of Appeals chose Avery as the principal support of its holding. Avery does, however, provide an excellent and flexible test to determine whether a trial court abused its discretion in refusing to grant a continuance in a case such as this. That test is, has the defendant, in light of the record, received zealous and earnest counsel, and has appointed counsel performed its "full duty intelligently and well?" See, also, Chambers v. Maroney (1970), 399 U.S. 42.
Appellee argues that his counsel has not met this burden. In support of this argument he indicates that no objection was raised against the admission in evidence of the articles seized during the arrest. He contends further that Warden v. Hayden (1967), 387 U.S. 294, does not support this admission.
That position is not tenable.
Hayden promulgated the doctrine that fruits of a warrantless search are admissible in evidence when obtained during an arrest made in hot pursuit of the suspect. The arrest in the present case fits squarely within this doctrine, and therefore objection to the admission of the evidence seized would have been fruitless. See, also, Chambers v. Maroney, supra.
Upon examination of the record, the court concludes that appellee was fully and ably represented by his appointed trial counsel.
For the foregoing reasons, the judgment of the Court of Appeals is reversed.
Judgment reversed.
HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.