State v. Steele

155 Ohio App.3d 659

2003-Ohio-7103

802 NE 2d 1127

2003-Ohio-7103

The STATE of Ohio, Appellee, v. STEELE, Appellant.

No. C-020693.

Court of Appeals of Ohio, First District, Hamilton County.

Decided December 12, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael K. Allen, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for appellee.

Faulkner & Tepe, L.L.P., and A. Norman Aubin, for appellant.

COPYRIGHT MATERIAL OMITTED

DOAN, Presiding Judge.

{¶ 1} Defendant-appellant, Charles Steele, appeals from convictions for kidnapping, pursuant to R.C. 2905.01(A)(2), and rape, pursuant to R.C. 2907.02(A)(2), with accompanying firearm specifications. We affirm those convictions.

{¶ 2} The record shows that in the early morning hours February 19, 1994, a young woman was raped at gunpoint by a stranger. She was taken to a local hospital, where a nurse administered a rape exam, which involved obtaining semen samples. Police officers transported the samples to a laboratory at the Hamilton County Coroner's Office, where they were preserved for later testing. The victim could not identify her attacker, and no suspects were found at that time.

{¶ 3} Subsequently, Steele, who was incarcerated for another crime, gave a DNA sample pursuant to R.C. 2901.07 for inclusion in a DNA database. The Cincinnati Police Department later received information that Steele's DNA sample from the database matched the DNA of the semen sample obtained from the rape victim. The police then obtained a search warrant for another DNA sample from Steele, which was again sent to the forensics laboratory. The second sample also matched the sample obtained from the victim.

{¶ 4} Steele presents three assignments of error for review. In his first assignment of error, he argues that the state violated his constitutional rights by prosecuting him for rape and kidnapping beyond the statute of limitations prescribed by R.C. 2901.13(A)(1). He argues that, at the time of the offense in 1994, the statute of limitations was six years, but that he was not indicted until November 26, 2001, over a year after that six-year period had expired. This assignment of error is not well taken.

{¶ 5} On March 9, 1999, the legislature amended R.C. 2901.13 to extend the time in which a defendant may be brought to trial for some offenses, including rape and kidnapping, from six to twenty years. The legislature stated that the amendment to R.C. 2901.13 applied to an offense committed prior to the effective date of the amendment if prosecution for the offense was not barred under R.C. 2901.13 as it existed on the day prior to the effective date. State v. Crooks, 152 Ohio App.3d 294, 2003-Ohio-1546, 787 N.E.2d 678, 1111; State v. Barker, 6th Dist. No. L-01-1290, 2003-Ohio-5417, 2003 WL 22319572, 1115. Because the six-year statute of limitations that existed at the time of the offense in 1994 had not yet expired by March 9, 1999, the effective date of the amendment, the new twentyyear statute of limitations applied to Steele's prosecution.

{¶ 6} Steele argues that the retroactive application of this amendment violated the prohibition against retroactive laws in Section 28, Article II of the Ohio Constitution. This court has already addressed this issue in Crooks, supra. In that case, we specifically held that the legislature had expressed a clear intent that the amendment to R.C. 2901.13 was to be applied retroactively and that the amendment was remedial. Therefore, the retroactive application of R.C. 2901.13 extending the statute of limitations did not violate the prohibition against retroactive laws. Id. at 11 9-14. Consequently, the application of the twenty-year statute of limitations to Steele's prosecution did not violate his rights.

{¶ 7} We note that our holding is not changed by the decision of the U.S. Supreme Court in Stogner v. California (2003),___ U.S. ___, 123 S.Ct. 2446, 156 L.Ed.2d 544, which was issued after the parties submitted their briefs in the present case. In Stogner, the court held that a California law that permitted resurrection of otherwise time-barred criminal prosecutions violated the provision in the United States Constitution against ex post fact laws. Id. We acknowledge that the category of retroactive laws under the Ohio Constitution is far broader than the category of ex post facto laws under the United States Constitution. State ex rel. Corrigan v. Barnes (1982), 3 Ohio App.3d 40, 44, 3 OBR 43, 443 N.E.2d 1034; State v. Gonyer (June 26, 1998), 6th Dist. No. WD-97-062, 1998 WL 352293; State v. Goode (Mar. 27, 1998), 2d Dist. No. 97-CA-14, 1998 WL 404026. See, also, State v. Cook (1998), 83 Ohio St.3d 404, 410-423, 700 N.E.2d 570. Nevertheless, Stogner is distinguishable.

{¶ 8} The California statute in that case was enacted after the existing limitations period had expired. Stogner, supra. The court stated that "to resurrect a prosecution after the relevant statute of limitations has expired is to eliminate a currently existing conclusive presumption forbidding prosecution, and thereby to permit conviction on a quantum of evidence where that quantum, at the time the new law is enacted, would have been legally insufficient." Id.

{¶ 9} The court noted that courts have consistently distinguished extensions of unexpired statutes of limitation from situations where the statute of limitations has expired. It also specifically stated that its holding did not affect extensions of unexpired statutes of limitation. Id. Because this case involves the extension of an unexpired statute of limitations, not the resurrection of an expired one, Stogner by its own language does not apply. Accordingly, we overrule Steele's first assignment of error.

{¶ 10} In his second assignment of error, Steele argues that the trial court erred in refusing to allow him to represent himself. He contends that he asked to represent himself no fewer than three times, and that the trial court simply denied his requests without making further inquiry. This assignment of error is not well taken.

{¶ 11} The Sixth Amendment guarantees that a defendant in a criminal trial has an independent right to self-representation. Faretta v. California (1975), 422 U.S. 806, 818-820, 95 S.Ct. 2525, 45 L.Ed.2d 562. A defendant may waive his right to counsel and proceed to represent himself if the waiver is knowingly, intelligently, and voluntarily made. State v. Gibson (1976), 45 Ohio St.2d 366, 74 O.O.2d 525, 345 N.E.2d 399, paragraph one of the syllabus; State v. Teasley (Apr. 30, 1999), 1st Dist. No. C-980041, 1999 WL 252473. The trial court must make sufficient inquiry to determine whether the defendant fully understands and intelligently relinquishes the right to counsel. Gibson, supra, at paragraph two of the syllabus.

{¶ 12} "This right, however, occupies no hallowed status similar to the right to counsel enshrined in the Sixth Amendment." While the right to counsel attaches unless affirmatively waived, the right to self-representation does not attach until asserted. Sandoval v. Calderon (C.A9, 2001), 241 F.3d 765, 774. Because the right to self-representation involves the forfeiture of the important benefits offered by the right to counsel, limitations exist on a defendant's right to self-representation. Id. Considering the strong presumption against waiver of the right to counsel, courts use a stringent standard for judging the adequacy of an assertion of the right to self-representation. United States v. Weisz (C.A.D.C. 1983), 718 F.2d 413, 425-426.

{¶ 13} Consequently, a defendant's assertion of the right must be clear and unequivocal. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, If 38; State v. Reed (Nov. 6, 1996), 1st Dist. Nos. C-940315 and 940322, 1996 WL 637830. This requirement ensures that the defendant does not inadvertently waive the right to counsel. A request is not unequivocal if it is a "momentary caprice," "the result of thinking out loud," or an "emotional response." Lacy v. Lewis (C.D.Cal.2000), 123 F.Supp.2d 533, 548, quoting Adams v. Carroll (C.A.9, 1989), 875 F.2d 1441, 1444-1445, and Jackson v. Ylst (C.A.9, 1990), 921 F.2d 882, 888. Further, given the disfavored status of the right to selfrepresentation compared to the right to counsel, a defendant who has made an unequivocal assertion of the right to self-representation may later waive it by accepting the assistance of counsel. Cassano, supra, at 11 42; Sandoval, supra, 241 F.3d at 774.

{¶ 14} The defendant must also assert the right in a timely fashion. In Reed, supra, this court stated that the right to self-representation is unqualified if asserted before the empanelling of a jury. The Ohio Supreme Court has taken a differing view. It has held that a request made three days before trial was untimely. In so holding, it cited a federal case that held that a request made six to ten days before trial was untimely. State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, U 50; Cassano, supra, at 11 40.

{¶ 15} The record in this case shows that the trial court held a hearing on several motions filed by Steele's attorney, as well as a motion that Steele had filed pro se. Defense counsel informed the court that Steele wished to argue his pro se motion. The court denied his request, telling Steele that he spoke through counsel. Steele became argumentative and insisted that he wanted to speak. The court told him that he could be sworn in as a witness. The argument continued, and finally the court told him, "You will speak through the attorney. If you want to take the stand and make any statement subject to crossexamination, you are welcome to do that." Steele responded, "What I would like to do is make a motion to withdraw counsel then." He continued that he wanted to "go by myself." The court denied his motion.

{¶ 16} The hearing continued and Steele's counsel presented evidence regarding a motion to suppress. Subse...