State v. Furr , 2018 Ohio 2205 ( 2018 )

[Cite as State v. Furr, 2018-Ohio-2205.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170046
TRIAL NO. B-1601520
Plaintiff-Appellee, :
vs. : O P I N I O N.
KONO FURR, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 8, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Kono Furr appeals his convictions for burglary and possessing
criminal tools. He argues that the court should not have let him represent himself
and should not have allowed him to appear before the jury in his jail clothing. We
conclude that his assignments of error have no merit, so we affirm the trial court’s
judgment.
Right to Counsel
{¶2} In his first assignment of error, Furr argues that the trial court
committed structural error and violated his right to counsel by failing to have
counsel present at all stages of the proceedings, including the court’s hearings on his
waiver of counsel. In his second assignment of error, Furr argues that the court
committed structural error by discharging counsel before Furr made a clear and
unequivocal request to represent himself. Because both arguments allege structural
error involving the deprivation of counsel, we discuss them together.
{¶3} The structural-error doctrine exists “to ensure insistence on certain
basic, constitutional guarantees that should define the framework of any criminal
trial.” Weaver v. Massachusetts, ___ U.S. ___, 137 S. Ct. 1899, 1907, 198 L. Ed. 2d
420 (2017). A structural error is a constitutional error of such magnitude that it
“affect[s] the framework within which the trial proceeds.” Arizona v. Fulminante,
499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). Because a structural error
is deemed prejudicial per se, it requires an automatic reversal. State v. Davis, 127
Ohio St. 3d 268, 2010-Ohio-5706, 939 N.E.2d 147, ¶ 22.
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{¶4} Consistent with the presumption that most constitutional errors are
not structural, structural errors have been recognized only in a very limited class of
cases. State v. Perry, 101 Ohio St. 3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 18;
Johnson v. United States, 520 U.S. 461, 468-469, 117 S. Ct. 1544, 137 L. Ed. 2d 718
(1997). As relevant to this appeal, structural errors have been found in cases
involving the complete denial of counsel, see Gideon v. Wainwright, 372 U.S. 335,
83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), and the denial of the right to self-representation,
see McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984).
{¶5} A criminal defendant’s right to counsel during critical stages of the
prosecution is guaranteed by the Sixth Amendment of the United States
Constitution, made applicable to the states through the Fourteenth Amendment, and
by Article I, Section 10, of the Ohio Constitution. Gideon at 342; State v. Martin, 103
Ohio St. 3d 385, 2004-Ohio-5471, 816 N.E.2d 227. The right to counsel “implicitly
embodies a ‘correlative right to dispense with a lawyer’s help.’ ” Martin at ¶ 23,
quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 87
L. Ed. 2d 268 (1942). The right to represent oneself “is thwarted when counsel is
forced upon an unwilling defendant, who alone bears the risks of a potential
conviction.” State v. Obermiller, 147 Ohio St. 3d 175, 2016-Ohio-1594, 63 N.E.3d 93,
¶ 26, citing Faretta v. California, 422 U.S. 806, 819-820, 95 S. Ct. 2525, 45 L. Ed. 2d
52 (1975).
{¶6} Both the United States Supreme Court and the Supreme Court of Ohio
have recognized a criminal defendant’s right to defend herself or himself at trial
without counsel when the defendant knowingly, intelligently, and voluntarily
chooses to do so. See Faretta at 819-820; State v. Gibson, 45 Ohio St. 2d 366, 377,
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345 N.E.2d 399 (1976). The defendant’s decision to waive the right to counsel need
not itself be counseled. See Montejo v. Louisiana, 556 U.S. 778, 786, 129 S. Ct. 2079,
173 L. Ed. 2d 955 (2009).
{¶7} In Ohio, Crim.R. 44 governs the procedure for waiver of counsel in
“serious offense” cases. Under Crim.R. 44(A), where a defendant charged with a
serious offense is unable to obtain counsel, counsel must be assigned to represent the
defendant at all stages of the proceedings, unless the defendant, after being fully
advised of the right to counsel, knowingly, intelligently, and voluntarily waives the
right to counsel. In addition, in a serious-offense case, the waiver of counsel must be
in writing. See Crim.R. 44(C). A “serious offense” includes any felony. See Crim.R.
2(C).
{¶8} The written waiver provision of Crim.R. 44(C) is not a constitutional
requirement, so a trial court needs only to substantially comply with Crim.R. 44(A).
See Martin, 103 Ohio St. 3d 385, 2004-Ohio-5471, 816 N.E.2d 227, at ¶ 38.
Substantial compliance with Crim.R. 44(A) is demonstrated where the trial court
made a sufficient inquiry to determine whether the defendant fully understood and
intelligently relinquished the right to counsel. Id. at ¶ 39. If the court substantially
complies with Crim.R. 44(A), the failure to file a written waiver is harmless error. Id.
{¶9} The trial court should explain to the defendant “the nature of the
charges, the statutory offenses included within them, the range of allowable
punishments thereunder, possible defenses to the charges and circumstances in
mitigation thereof, and all other facts essential to a broad understanding of the whole
matter.” Gibson, 45 Ohio St. 2d at 377, 345 N.E.2d 399, quoting Von Moltke v.
Gillies, 332 U.S. 708, 723, 68 S. Ct. 316, 92 L. Ed. 309 (1948). In addition, the court
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should explain that the defendant “will be required to follow the same rules of
procedure and evidence which normally govern the conduct of a trial.” State v.
Vordenberge, 128 Ohio App. 3d 488, 2002-Ohio-1612, 774 N.E.2d 278, ¶ 12 (1st
Dist.), quoting State v. Doane, 69 Ohio App. 3d 638, 646-647, 591 N.E.2d 735 (11th
Dist.1990).
{¶10} The assertion of the right to self-representation must be clear and
unequivocal. State v. Neyland, 139 Ohio St. 3d 353, 2014-Ohio-1914, 12 N.E.3d 1112,
¶ 72. The defendant should be made aware of the disadvantages of self-
representation, so that the record will establish that the defendant’s choice “is made
with eyes open.” Adams, 317 U.S. at 279, 63 S. Ct. 236, 87 L. Ed. 268. “Whether a
defendant’s choice was made with eyes open typically ‘depend[s], in each case, upon
the particular facts and circumstances surrounding that case, including the
background, experience, and conduct of the accused.’ ” Obermiller, 147 Ohio St. 3d
175, 2016-Ohio-1594, 63 N.E.3d 93, at ¶ 30, quoting Johnson v. Zerbst, 304 U.S.
458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Whether a defendant knowingly,
intelligently, and voluntarily waived the right to counsel is an issue that we review de
novo. State v. Nelson, 2016-Ohio-8064, 75 N.E.3d 785, ¶ 17 (1st Dist.).
{¶11} In this case, defense counsel was appointed for Furr before his
arraignment. Counsel appeared for him at arraignment and at a subsequent bond
hearing, and filed discovery requests on his behalf. Despite having appointed
counsel, Furr filed a pro se motion to dismiss the charges for lack of jurisdiction.
{¶12} At a hearing on the motion, defense counsel informed the court that
Furr had told her not to come to court and that Furr wanted to address the court
about obtaining other counsel. The court asked Furr if he wanted the court to
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OHIO FIRST DISTRICT COURT OF APPEALS
appoint counsel or if he was going to hire counsel. Furr responded, “Maybe private
counsel. I talked to my family.” The court permitted defense counsel to withdraw
and, at Furr’s request, continued the matter for a week. The court told Furr that if he
did not hire counsel by that time, the court would appoint counsel for him. Furr
signed the court’s entry continuing the matter.
{¶13} At the next hearing, the court asked Furr if he had gotten an attorney,
and Furr responded that he did not need an attorney. The court asked if he wanted it
to appoint an attorney for him, and Furr repeated that he did not need an attorney.
The court asked, “So you want to be pro se and represent yourself?” Furr responded,
“Well, I’ll be in propria persona, not pro se.” The court strongly advised him to have
an attorney because he faced up to eight years in prison for the burglary charge. Furr
responded, “I don’t need an attorney, Your Honor. I told you that already.” Furr
asked the court to set the matter for trial.
{¶14} Before the scheduled trial date, the court held a pretrial hearing at
which Furr continued to maintain that the charges against him should be dismissed,
apparently claiming “sovereign citizen” status. At this hearing, Furr stated to the
court, “I am the beneficiary of the trust, and I appoint you as my trustee. As my
trustee[,] I want you to dismiss this matter I’m accused of immediately.” Furr
reiterated that he did not need an attorney. The court strongly urged Furr to at least
have an attorney to assist him at trial, but Furr said, “I don’t need no one to
represent me. I told y’all plenty of times I don’t need no one to represent me.”
{¶15} When the court informed Furr that the trial was scheduled within a
few weeks, Furr objected, arguing that government officers “were exhibiting unlawful
actions against the Sovereign people, and the formality of the law, you are personally
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liable for their actions.” The court explained that Furr would be held to the “same
rules of evidence, the rules of the Court, the rules of procedure. That’s why I’m
practically begging you to get an attorney.” Furr said that he did not need an
attorney.
{¶16} On the date scheduled for trial, the court contacted the county public
defender’s office. The chief of the felony division of that office arrived at the
courtroom before proceedings commenced, and attempted to speak with Furr about
possible representation, but Furr declined to speak with him.
{¶17} The court then asked Furr if he still wished to proceed without an
attorney, and Furr confirmed that he did. The court explained to Furr that he was
charged with burglary, a felony of the second degree, and possession of criminal
tools, a felony of the fifth degree. The court informed him of the elements of the
offenses and the potential penalties for each. The court explained that he was
presumed innocent until proven guilty beyond a reasonable doubt, and that the
burden of proof for the elements of the offenses was upon the prosecution. The court
defined “reasonable doubt” and “proof beyond a reasonable doubt.”
{¶18} The court explained that there were potential defenses to the charges,
including alibi. The court defined the terms “alibi” and “affirmative defense,” and
explained that the burden of going forward with the evidence of an affirmative
defense, and that the burden of proof, by a preponderance of the evidence, is on the
accused. The court told Furr that if he proposed to offer testimony to establish an
alibi, he was required to file and serve upon the prosecutor, not less than seven days
before trial, written notice of his intention to claim an alibi. The court described
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OHIO FIRST DISTRICT COURT OF APPEALS
what the notice of alibi must include, and explained that the failure to file the notice
could result in the court’s exclusion of the alibi evidence.
{¶19} The court explained that Furr would be able to cross-examine
witnesses who testified against him at trial, and that he could require witnesses to
come to court, using subpoenas. The court told him that he could choose not to
testify for himself and that no one could use his silence against him or comment on
it. In addition, the court provided Furr with a printed copy of its verbal explanation.
{¶20} The court again asked Furr if he wished to have an attorney appointed
to represent him, and Furr responded that he was “making a special limited
appearance on behalf of the defendant, who is right here.” The court explained that
Furr was the defendant. Furr insisted that the court dismiss the charges against him
because he did not “accept these proceedings.”
{¶21} The court instructed Furr to sign a waiver of counsel, but Furr refused,
stating, “Ma’am, I told you, I do not want a contract with you.” The court explained
that the waiver of counsel was not a contract, and Furr stated, “Wherever I sign my
name is a contract, ma’am.” Furr refused to sign a written waiver of counsel because,
according to the trial court, “he believe[d] it would be entering into a contract.”
{¶22} When Furr asked to see the trial court’s oath of office, the court
informed him:
Sir, we’re not going to proceed this way.
I know that you have been through the criminal justice system
before. I know that you have been represented by counsel.
I cannot make any comment or infer anything. You are
innocent until proven guilty, but I do know that you have been
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OHIO FIRST DISTRICT COURT OF APPEALS
represented before, and there is no contract. You are not going to see
my oath of office.
{¶23} The court ordered that Furr undergo a competency evaluation to
ensure that he was competent to stand trial. The court noted that Furr had refused
to meet with the public defender, and stated:
Further, Mr. Furr has made statements here today about
contracts with the [c]ourt, and statements that concern me that Mr.
Furr may not be competent to understand the proceedings that are
happening – occurring here.
{¶24} The court noted that it had “concerns, given the statements that he
made and his refusal to meet with [the public defender].”
{¶25} Furr then participated in a competency evaluation by a court
psychologist. According to the psychologist’s report, Furr was competent to stand
trial. The report indicated that Furr was 44 years old, had gone to school through the
tenth grade, and had later obtained his GED. His criminal history was extensive and
included convictions for domestic violence, carrying a concealed weapon, several
felony drug-trafficking offenses, receiving stolen property, and felonious assault.
Furr had served two prison terms.
{¶26} According to the report, Furr had informed the psychologist that he
would act as his own attorney because his defense attorneys in his prior criminal
cases had not effectively advocated for him. The report indicated that Furr
understood the felony charges against him and the possible penalties, including
imprisonment. He was able to identify the roles of courtroom participants, possible
outcomes, legal strategies, and legal options. According to the report, Furr was
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OHIO FIRST DISTRICT COURT OF APPEALS
capable of understanding the nature and objective of the proceedings against him
and was capable of relating to an attorney if he chose to do so.
{¶27} At the next court hearing, the court asked Furr if he would like to
review the competency report, but he declined to do so. The court found Furr
competent based on the expert’s report. Even though the court had previously
explained at length the nature of the charges, potential penalties and defenses, the
court did so again and gave Furr another printed copy of the explanation.
{¶28} The court inquired several times of Furr if he still wanted to represent
himself. He said that he did. The trial court determined that Furr had knowingly,
intelligently, and voluntarily waived his right to counsel. Furr again refused to sign a
written waiver, stating, “As I told you before, I’m going to represent myself. I don’t
need the entry for that.” The court continued to ask if he would sign the entry. He
continued to respond that he was representing himself. After several back and forth
questions, Furr signed a written waiver of counsel, noting above his signature:
“under duress, without prejudice, reserve all rights[.]”
{¶29} The record demonstrates that the trial court meticulously and
thoroughly complied with Crim.R. 44(A). Furr clearly and unequivocally asserted his
right to represent himself on multiple occasions, and knowingly, intelligently, and
voluntarily waived his right to counsel. The trial court repeatedly warned Furr of the
disadvantages of proceeding without counsel. The court thoroughly explained to him
the nature and elements of the charges, possible defenses to the charges, and the
potential sentences that he faced. The court informed him that he would be required
to follow the same rules of procedure and evidence that govern the conduct of a trial.
In addition, the court took extraordinary measures to ensure that he knowingly,
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OHIO FIRST DISTRICT COURT OF APPEALS
intelligently, and voluntarily waived his right to counsel by ordering a competency
evaluation, by having a public defender try to talk to him, and by giving him a
printed copy of its thorough explanations at two separate hearings.
{¶30} Prior to trial, the case was transferred to another judge, who noted at
the first hearing that Furr had elected to represent himself. The second judge held
several pretrial hearings at which it considered Furr’s numerous motions to dismiss
the charges. The judge denied the motions. During these pretrial proceedings, the
second judge continued to inquire if Furr still wanted to represent himself and
advised him against it.
{¶31} We hold that the trial court made a diligent and thorough inquiry into
whether Furr fully understood and intelligently waived his right to counsel. See
Martin, 103 Ohio St. 3d 385, 2004-Ohio-5471, 816 N.E.2d 227, at ¶ 39. Because no
constitutional error occurred, no structural error occurred. See State v. Fisher, 99
Ohio St. 3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 18; State v. Conway, 108 Ohio
St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 55. We overrule the first and second
assignments of error.
Jail Clothing
{¶32} In his third assignment of error, Furr argues that the trial court erred
by compelling him to participate in a jury trial while wearing identifiable jail clothes,
in violation of his right to due process.
{¶33} The United States Supreme Court has held that a defendant’s right to
due process may be violated where the defendant stands trial before a jury while
dressed in identifiable jail clothes. Estelle v. Williams, 425 U.S. 501, 504, 96 S. Ct.
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1691, 48 L. Ed. 2d 126 (1976). The court recognized that “the constant reminder of the
accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s
judgment.” Id. at 504. But the court declined to establish a bright-line rule
requiring a conviction to be reversed where the defendant appeared before the jury
in jail clothing, acknowledging that a defendant might choose to wear identifiable jail
clothing “in the hope of eliciting sympathy from the jury.” Id. at 507-508.
{¶34} To establish that a constitutional violation occurred, the defendant
must show that she or he was compelled to stand trial before a jury while dressed in
identifiable jail clothing. State v. Trowbridge, 1st Dist. Hamilton No. C-110541,
2013-Ohio-1749, ¶ 28. The defendant’s failure to object to being tried in jail clothing
“is sufficient to negate the presence of compulsion necessary to establish a
constitutional violation.” Estelle at 512-513.
{¶35} In this case, Furr has failed to demonstrate that he was compelled to
stand trial in identifiable jail clothing. He raised no objection about his wearing jail
clothing in front of the jury. In fact, he was asked by the court at two separate
hearings whether he wanted to appear in civilian clothes before the jury. Furr never
responded. He then appeared for trial in jail clothing. The court clearly informed
Furr of his option to wear civilian clothes. Moreover, because the judge told the
jurors to disregard the fact that Furr was wearing jail clothing, we must presume that
the jurors followed the instruction. See State v. Dalmida, 1st Dist. Hamilton No. C-
140517, 2015-Ohio-4995, ¶ 21. Therefore, we overrule the third assignment of error
and affirm the trial court’s judgment.
Judgment affirmed.
MILLER and DETERS, JJ., concur.
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Please note:
The court has recorded its own entry on the date of the release of this opinion.
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