State v. Dukes

518 N.E.2d 28, 34 Ohio App. 3d 263, 1986 Ohio App. LEXIS 10348, 1986 WL 15960
CourtOhio Court of Appeals
DecidedDecember 29, 1986
Docket51247
StatusPublished
Cited by19 cases

This text of 518 N.E.2d 28 (State v. Dukes) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dukes, 518 N.E.2d 28, 34 Ohio App. 3d 263, 1986 Ohio App. LEXIS 10348, 1986 WL 15960 (Ohio Ct. App. 1986).

Opinion

Patton, J.

This appeal arises from a judgment entered by the Cuyahoga County Court of Common Pleas which found the appellant, Kenneth Dukes, guilty of one count of kidnapping, in violation of R.C. 2905.01, and one count of felonious assault, in violation of R.C. 2903.11. The facts giving rise to this appeal, as contained in the record, provide the following.

On March 30, 1985, at or around 9:00 a.m., an argument developed between appellant Dukes and Sandra Wynn at Wynn’s residence. The argument continued throughout the morning and into the afternoon.

At around 4:00 p.m., the argument became violent. Wynn testified that appellant struck her in the back of the head with an ashtray. Thereafter, appellant repeatedly beat Wynn with various fireplace implements, including a poker, tongs, shovel and a metal base stand used to hold these tools. Dukes then tied Wynn’s hands together behind her back with a telephone cord. He also tied Wynn’s feet together so that she was, in effect, “hog-tied” on the floor. After Wynn requested an ambulance, Dukes gagged her with his handkerchief. Dukes continued to *264 strike Wynn for over three hours, until approximately 7:15 p.m.

Sandra Wynn testified that at that time, appellant hurriedly packed his clothes. Before leaving the house, Dukes cut the cord tying the victim’s feet together. Wynn testified that she managed to escape and that she ran to a neighbor’s house, where she collapsed. Wynn was later taken to the hospital, where she remained hospitalized for almost one week. Appellant Dukes was arrested later the same evening when he was observed driving the victim’s automobile.

Trial in this matter was scheduled to commence on August 5, 1985 on charges of kidnapping, R.C. 2905.01, and attempted murder, R.C. 2903.03 and 2923.02. On July 29, 1985, appellant moved for .an order permitting independent analysis of the blood on the .alleged, criminal.instrumentalities. The motion was granted on August 1, 1985 on the condition that appellant’s expert personally appear at the Cleveland Police Department to conduct the tests. The trial date was continued until August 26, 1985.

On August 13, 1985, the trial counsel retained by appellant, attorney Gail . Oettinger, filed a motion to withdraw her name as attorney of record on the ground that appellant had instructed her that he no longer wanted her to represent him in this matter. At a brief hearing immediately prior to the commencement of trial, it was discovered that appellant had requested counsel’s withdrawal when he learned that -her partner, Thomas McIntyre, had represented the victim Wynn in the past, and that he believed McIntyre was presently representing Wynn. Appellant stated that he was reludant to assist his counsel in his defense because he believed that the defense strategy, including prospective witnesses, was being communicated regularly to Wynn through his trial counsel’s partner. Appellant’s trial counsel stated that in late July or early August, appellant informed her that he had lost confidence in her and no longer wanted her to represent him. She corroborated that appellant was uncooperative in assisting in his defense and stated that his lack of cooperation had compromised her ability to defend him.

The trial court contacted attorney McIntyre by telephone and was satisfied that McIntyre was not representing Wynn at the present time. The court concluded that there was no conflict of interest and accordingly overruled the motion to withdraw as counsel.

At the same time, the trial court overruled appellant’s request for the state to provide financial assistance in obtaining an expert for the independent analysis of the blood. The court stated that it had previously granted the motion in part, but that the motion made on the morning of trial was out of rule.

At the close of all the evidence, the trial court instructed the jury on the kidnapping charge and also instructed the jury on attempted murder and the lesser included offense of felonious assault, R.C. 2903.11. On August 28, 1985, the jury returned a verdict of guilty to the charges of kidnapping and felonious assault.

On November 27, 1985, appellant filed a notice of appeal.

Appellant raises four assignments of error in this appeal:

“I. The trial court erred and denied Kenneth Dukes * * * his constitutionally mandated right to effective assistance of counsel.
“II. The crimes of felonious assault and kidnapping in the case at bar are allied offenses of similar import, and' Kenneth Dukes’ conviction on both charges denies him liberty without due process of law.
*265 “III. The verdict was against the weight of the evidence.
“IV. The appellant was convicted with evidence insufficient as a matter of law thereby denying him his due process rights guaranteed him by the Fourteenth Amendment to the United States Constitution and Article I, Sec. 16 of the Ohio Constitution.”

I

For his first assignment of error, appellant submits that he was denied his constitutionally mandated right to effective assistance of counsel. Appellant’s constitutional challenge is twofold: first, appellant contends that the trial court denied him effective assistance of counsel when it refused to permit Dukes’ retained trial counsel, pursuant to a motion filed almost two weeks earlier, to withdraw as attorney of record so that Dukes could have the retained counsel of his choice; and second, appellant contends that the trial court abused its discretion and denied him effective assistance of counsel when it refused a defense continuance made on the morning of the trial so that a defense expert could examine the state’s evidence. We believe that the second challenge is meritless but that the first contention has merit. Accordingly, we believe that the judgment must be reversed and that the appellant must be granted a new trial.

A. The Sixth Amendment right to counsel, applicable to the states through the Due Process Clause of the Fourteenth Amendment, has repeatedly been recognized as the cornerstone of our criminal justice system. See, e.g., Gideon v. Wainwright (1963), 372 U.S. 335, 23 O.O. 2d 258; Powell v. Alabama (1932), 287 U.S. 45. In order for counsel to effectively assist the defendant in preparing a defense strategy, the defendant must have some degree of trust and confidence in his counsel and must be able to engage in full and frank communications with counsel. In Upjohn Co. v. United States (1981), 449 U.S. 383, the court observed that the purpose of the attorney-client privilege is “ ‘to encourage clients to make full disclosure to their attorneys.’ ” Id. at 389 (quoting Fisher v. United States [1976], 425 U.S. 391, 403).

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Bluebook (online)
518 N.E.2d 28, 34 Ohio App. 3d 263, 1986 Ohio App. LEXIS 10348, 1986 WL 15960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dukes-ohioctapp-1986.