State v. Thigpen

[Cite as State v. Thigpen, 2014-Ohio-207.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 99841

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

LORENZO J. THIGPEN
DEFENDANT-APPELLANT

JUDGMENT:
REVERSED AND REMANDED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-563007

BEFORE: Boyle, A.J., McCormack, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: January 23, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: Jeffrey M. Gamso
Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113

Lorenzo Thigpen, pro se
No. 0172437
P.O. Box 5600
Cleveland, Ohio 44101

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Blaise D. Thomas
Yosef M. Hochheiser
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:

{¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11 and Loc.R. 11.1.

{¶2} Defendant-appellant, Lorenzo Thigpen, appeals from a trial court’s

judgment revoking its prior decision four days earlier where it had granted his motion to

represent himself after a hearing. He raises one assignment of error for our review:

“The trial court committed error and denied appellant his rights under the constitutions of

the United States and of Ohio when it wrongfully revoked his properly granted right to

self-representation.” We find merit to his argument and reverse and remand.

Procedural History

{¶3} In June 2012, Thigpen was indicted on ten counts: two counts of aggravated

murder, one count of murder, two counts of burglary, and one count each of grand theft,

tampering with evidence, gross abuse of a corpse, failure to comply, and receiving stolen

property. Thigpen pleaded not guilty to all charges at his arraignment. The trial court

appointed two attorneys to represent him as defense counsel.

{¶4} Nine months later, on April 2, 2013, after extensive discovery and 19

pretrials, Thigpen filed a notice of appearance and notice of termination of representation.

The trial court held a lengthy hearing on Thigpen’s motion.

{¶5} At the hearing, Thigpen informed the trial court that he wished to proceed

pro se because his attorneys “keep trying to get [him] to cop out and [he was] not the type

to cop out.” The trial court asked Thigpen if his attorneys had “done all the discovery”
in his case. Thigpen replied that they would not “share information with [him].” One

of Thigpen’s counsel replied that he and Thigpen’s other counsel had a “number of

contact visits,” where they reviewed discovery with Thigpen.

{¶6} The trial court proceeded to explain to Thigpen — and ensure that he

understood — that his two attorneys had each been lawyers for more than 20 years and

that both of them had extensive experience in representing criminal defendants. The

trial court further informed Thigpen that he would be held to the same rules of evidence

that binds all lawyers; that he would be bound by the rules of criminal procedure, just as

any other lawyer would; that the court could not give him legal advice or assist him

during the trial; that he was giving up certain rights on appeal because he could not claim

that he did not have effective and proper legal counsel; that he could not walk around the

courtroom during trial or handle weapons or approach witnesses; and that he would be

accompanied at all times by armed deputies. Thigpen indicated that he understood all of

the warnings given to him by the trial court.

{¶7} The court also reviewed each count with Thigpen, ensuring that he

understood what he was charged with, as well as the penalties associated with each

charge. At the trial court’s request, Thigpen explained each offense in his own words,

and expressed knowledge of the maximum sentence he could receive for each one.

Thigpen also said that he understood that there were possible affirmative defenses and

mitigating evidence that an attorney would be better equipped to present to the jury.

{¶8} The trial court then asked Thigpen if he knew of possible defenses that he
might be able to present at trial. Thigpen told the court that his defense was that he did

not commit the crimes. The trial court asked Thigpen if that was his only defense.

Thigpen replied “[r]ight now, but I will be doing my homework.” The trial court told

Thigpen, “Sir, trial is in two weeks.” Thigpen responded, “I did not consent on going to

trial.” The following exchange then took place.

The Court: Well, you are asking to represent yourself at trial.

[Thigpen]: I am asking to represent myself period. I am not going to
consent on trial.

The Court: We’re here today talking about whether or not you can represent
yourself at trial. Now, excuse me, but listen. Hear me out. If you are
saying I want to represent myself everywhere, but not at trial, you have to
tell me that. You are going to trial. So if you are saying I am opposing
the fact of going to trial, that has been overruled. Forget that. We are
going to trial. Now, I need to know do you want to represent yourself at a
trial in front of a jury?

[Thigpen]: I did not consent to going to trial.

The Court: I understand you are not consenting. I am overruling that.
Do you want to represent yourself at trial in front of a jury?

[Thigpen]: I want to represent myself. I am not going to trial. I am not
going to trial. I deny any consent to going to trial. I deny my consent to
going to trial.

The Court: Do you want to represent yourself at trial in front of a jury or
not?

[Thigpen]: Yes, ma’am.

The Court: We have that understanding. Trial is * * * April 29th. Today
is April 11th. That’s 18 days.
 {¶9} The trial court then proceeded to return to the topic of informing Thigpen of

some of the possible defenses that he may be able to present. Thigpen first stated again

that he did not consent to going to trial, but then indicated that he was aware of all of the

possible defenses. The trial court asked Thigpen “what makes you think that you are

capable of representing yourself in front of a jury at trial?” Thigpen replied, “I am

capable, your Honor. I am competent and capable.”

{¶10} Thigpen went on to tell the court five more times that he did not consent to

trial. Each time, the court indicated that it understood that, but then told him that he was

going to trial. At one point, the trial court asked Thigpen: “I need to understand why

you think that you are not going to trial because that cuts real deep into a finding that you

are competent to represent yourself.” Thigpen replied,

[b]ecause I entered a denial. I wish not to move forward. I entered a
denial. That’s a denial. That’s what that rescission of the plea is, that’s
what a denial is for this. It’s alleged charges. I deny those alleged
charges. They have to prove those alleged charges. It’s with insufficient
evidence.
{¶11} The court explained that the state has to prove each material element of each

offense at trial on April 29th. Thigpen replied, again, that he did not consent on going to

trial.

{¶12} The trial court continued to extensively warn Thigpen about the perils of

trying his case without an attorney, including how an attorney could better call witnesses

to court, question witnesses, and ensure that he does not inadvertently waive his right to

self-incrimination. The trial court further asked Thigpen: “Do you understand that you

will be required to conduct yourself in a professional and respectful manner to the court
and to all of the witnesses involved in this case at all times?” Thigpen replied that he

did. The court then warned him that if he did not conduct himself “in such a manner”

that it “may revoke [his] right to self-representation or may take further action as may be

necessary including an order that [he] be removed from the courtroom by force, if

necessary.”

{¶13} The trial court concluded that Thigpen was making a knowing, voluntary,

and intelligent waiver of his right to counsel.

{¶14} In its judgment entry granting Thigpen’s motion, the trial court stated:

The court after having a lengthy colloquy, including the nature of the
charges, the statutory offenses included within them, the range of allowable
punishments thereunder, possible defenses to the charges, the perils of
proceeding pro se, and all other facts essential to a broad understanding of
the entire case, finds that the defendant has made a knowingly, intelligently,
and voluntarily waiver of his right to counsel[.]

{¶15} The trial court appointed Thigpen’s two original defense attorneys as

stand-by counsel, over Thigpen’s objection.

{¶16} Four days later, the trial court held a hearing with Thigpen, the state, and

stand-by counsel because the trial court learned that Thigpen refused to accept discovery

on his case from the state and from stand-by counsel. At the hearing, the state indicated

that, with the exception of two videos, it had duplicated and attempted to give to Thigpen

the entire 1,508 pages of discovery in the case.

{¶17} Thigpen stated, “I refuse that discovery, Your Honor.” Thigpen explained

that he was “not waiving [his] right to discovery, but [he was] refusing discovery from the
state on the timing.” Thigpen stated that he asked for that discovery “17 and a half

months ago, and it’s late[,]” so he refused to accept it.

{¶18} The trial court stated for the record that stand-by counsel also “made

Herculean efforts to copy all of the discovery” and get it to Thigpen the day after Thigpen

was permitted to represent himself, and Thigpen rejected discovery from them as well.

{¶19} In its judgment entry revoking Thigpen’s right to represent himself, the trial

court explained:

[U]pon continued and studied reflection and in light of Thigpen’s
refusal to accept discovery, it appears to this court the defendant does not
intend to represent himself, but rather is more interested in obstructing the
judicial process. Without discovery defendant would be unable (as would
anyone) to effectively provide representation and would therefore be
rendered incompetent for pro se representation.

Reviewing testimony from the 4/11/2013 hearing, defendant
repeatedly stated that he did not consent to trial. (See transcript p. 36, 37,
38, 42, 43, 50, 51, 58.) This court was unsure of defendant’s motives at that
time, however his actions [at the hearing], and [refusing to accept
discovery] and this morning [at the hearing] have now clarified his true
intention. The court finds this behavior is solely intended to obstruct and
interfere with the trial scheduled for April 29, 2013 and is not premised
upon any specific dissatisfaction with the representation by these attorneys.

{¶20} The trial court revoked its prior order, removed Thigpen as counsel, and

reappointed Thigpen’s original defense attorneys to the case.

{¶21} Subsequently, Thigpen’s counsel moved for Thigpen to have a competency

assessment. The court’s psychiatric clinic determined that Thigpen was competent to

stand trial.
 {¶22} On the day of the scheduled trial, Thigpen filed a notice of appeal, raising

his sole assignment of error, namely, that the trial court was denying his right to represent

himself.

Right to Self-Representation

{¶23} The Sixth and Fourteenth Amendments of the United States Constitution

guarantee that persons brought to trial in any state or federal court must be afforded the

right to the assistance of counsel before they can be validly convicted and punished by

imprisonment. See Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, Gideon

v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. In some cases, defendants

choose to forgo that right and represent their own interests before a criminal tribunal.

That is also their right under the constitutions of this state and this nation. State v. Reed,

74 Ohio St.3d 534, 535, 660 N.E.2d 456 (1996), citing Faretta v. California, 422 U.S.

806, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). “If a trial court denies the right to

self-representation, when properly invoked, the denial is per se reversible error.” State

v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 32, citing Reed.

{¶24} In Faretta, which was a landmark case, the United States Supreme Court

explained:

It is undeniable that in most criminal prosecutions defendants could
better defend with counsel’s guidance than by their own unskilled efforts.
But where the defendant will not voluntarily accept representation by
counsel, the potential advantage of a lawyer’s training and experience can
be realized, if at all, only imperfectly. To force a lawyer on a defendant
can only lead him to believe that the law contrives against him. Moreover,
it is not inconceivable that in some rare instances, the defendant might in
fact present his case more effectively by conducting his own defense.
 Personal liberties are not rooted in the law of averages. The right to
defend is personal. The defendant, and not his lawyer or the state, will
bear the personal consequences of a conviction. It is the defendant,
therefore, who must be free personally to decide whether in his particular
case counsel is to his advantage. And although he may conduct his own
defense ultimately to his own detriment, his choice must be honored out of
“that respect for the individual which is the lifeblood of the law.” Illinois
v. Allen, 397 U.S. 337, 350-351, 90 S.Ct. 1057, 25 L.Ed.2d 353 [1970]
(Brennan, J., concurring).

Faretta at 834.

{¶25} When defendants manage their own defense, they relinquish, “as a purely

factual matter, many of the traditional benefits associated with the right to counsel.” Id.

For this reason, in order to represent themselves, defendants must “knowingly and

intelligently” forgo those relinquished benefits. Id. at 835. Although defendants do not

need to have the skill and experience of a lawyer to competently and intelligently choose

self-representation, they should be made aware of the dangers and disadvantages of

self-representation, so that the record establishes that they know what they are doing and

their “choice is made with eyes open.” Id.

{¶26} A defendant’s right to self-representation, however, is not absolute.

Martinez v. Court of Appeal of California, 528 U.S. 152, 161, 120 S.Ct. 684, 145 L.Ed.2d

597 (2000). Because the dangers involved in waiving the right to representation are

significant, and because this right can be used as a tactic to delay trial and disrupt

otherwise orderly proceedings, it must be clearly and unequivocally asserted in a timely

manner or it will be waived. See Cassano at ¶ 41-42 (Cassano’s request was untimely
because he made it after being represented for over ten months and only three days before

the trial was to start).

{¶27} Further, there will be times when “the government’s interest in ensuring the

integrity and efficacy of the trial will outweigh the defendant’s interest in acting as his

own lawyer.” Martinez at 162. Therefore, when a defendant elects to represent him or

herself at trial in a criminal proceeding, and the defendant’s conduct, following a warning

to desist, is so disruptive that it threatens the integrity and efficacy of the trial, he or she

has forfeited the right to self-representation. See United States v. Young, 199 F.Supp.2d

697 (S.D.Ohio 2001) (the trial court may terminate self-representation by a defendant

who deliberately engages in serious and obstructionist misconduct).

{¶28} To establish an effective waiver of the right to counsel, the trial court must

make a sufficient inquiry to determine whether the defendant fully understands and

intelligently relinquishes that right. State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399

(1976), paragraph two of the syllabus. Crim.R. 44(A) also provides that a defendant is

entitled to counsel “unless the defendant, after being fully advised of his right to assigned

counsel, knowingly, intelligently, and voluntarily waives his right to counsel.” The

United States Supreme Court, however, has not prescribed a precise formula or script that

must be read to defendants who indicate that they desire to proceed without counsel.

State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 101.

Instead, to be valid, a waiver of the right to counsel

must be made with an apprehension of 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.

State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 40.

{¶29} In Faretta at 835-836, the United States Supreme Court concluded:

Here, weeks before trial, Faretta clearly and unequivocally declared
to the trial judge that he wanted to represent himself and did not want
counsel. The record affirmatively shows that Faretta was literate,
competent, and understanding, and that he was voluntarily exercising his
informed free will. The trial judge had warned Faretta that he thought it
was a mistake not to accept the assistance of counsel, and that Faretta would
be required to follow all the “ground rules” of trial procedure. We need
make no assessment of how well or poorly Faretta had mastered the
intricacies of the hearsay rule and the California code provisions that
govern challenges of potential jurors on voir dire. For his technical legal
knowledge, as such, was not relevant to an assessment of his knowing
exercise of the right to defend himself.

{¶30} Finally, the denial of the right to self-representation amounts to structural

error. McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)

“[S]tructural defects * * * defy analysis by ‘harmless-error’ standards” because they

“affec[t] the framework within which the trial proceeds,” and are not “simply an error in

the trial process itself.” United States v. Gonzalez-Lopez, 548 U.S. 140, 148-149, 126

S.Ct. 2557, 165 L.Ed.2d 409 (2006) (“Since the right to self-representation is a right that

when exercised usually increases the likelihood of a trial outcome unfavorable to the

defendant, its denial is not amenable to ‘harmless error’ analysis”).

Analysis

{¶31} Thigpen argues that from the time of the first hearing, where the trial court

found that he was voluntarily, knowingly, and intelligently waiving his right to counsel, to
the time that the trial court revoked his waiver of counsel four days later, “[o]nly one

thing had changed: [he] refused to accept discovery.” Thigpen maintains that “[t]here is

no rule requiring a criminal defendant to seek or accept discovery.” He contends that

the fact that he refused to accept discovery did not indicate any intent on his part “to

obstruct or interfere with the process of his case,” and at most, it indicated “that he was

making eccentric choices based on misunderstanding of the law.”

{¶32} The state counters that although there is no criminal rule requiring a

defendant to either seek or accept discovery, pro se litigants are held to the same

standards as other attorneys, and therefore, Thigpen was “expected to fully and zealously

represent himself.” The states maintains that despite Thigpen telling the court that he

would be prepared for trial, “his actions confirmed otherwise.” The state argues that

without discovery on his case, Thigpen could not be serious about representing himself

and it proved that he was only trying to delay and obstruct trial.

{¶33} We agree with Thigpen. Crim.R. 16 does not require a defendant to

demand or accept discovery from the state. Crim.R. 16 is implicated “upon receipt of

written demand for discovery by the defendant.” Crim.R. 16(B). Once Thigpen was

permitted to represent himself, he did not file a written demand for discovery. Further,

when he refused discovery from the state and stand-by counsel, he did not move to

continue his trial.

{¶34} The state also argues that Thigpen’s motion to represent himself was

untimely. This argument is without merit. The trial court did not consider the timing
of Thigpen’s motion to be a delay tactic. And despite Thigpen filing his motion 18 days

before trial was to begin, the trial court found that he was making an intelligent,

voluntary, and knowing waiver of his right to counsel at the first hearing.

{¶35} At the April 11, 2012 hearing, the trial court conducted a sufficient inquiry

to determine whether Thigpen fully understood his right to counsel that he was waiving

and to ensure that he was intelligently, knowingly, and voluntarily relinquishing that right.

The trial court warned Thigpen extensively about the dangers and disadvantages of

self-representation. The trial court further advised Thigpen of the nature of the charges

against him and the range of possible sentences for each charge, as well as advised him of

possible defenses and applicable mitigating circumstances. The trial court even had

Thigpen explain each charge in his own words to ensure that he understood them.

Further, Thigpen explained the process of voir dire to the trial court, saying he learned

how it was done through his “years of being in trouble.” It is clear that throughout the

hearing — despite the perils of self-representation — Thigpen remained unequivocal in

his request to represent himself.

{¶36} Further, the fact that Thigpen kept insisting at the April 11 hearing that he

did not consent to trial does not evince that he was attempting to delay or obstruct trial.

He acknowledged that he understood that his trial would occur on the date it had been set

for, even if he did not consent to it, and he further stated that he wished to represent

himself at trial in front of the jury. His insistence in placing the fact that he did not

consent to trial may have shown his lack of legal knowledge, but as the United States
Supreme Court explained in Faretta, 422 U.S. 806, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562,

Thigpen’s “technical legal knowledge” was not “relevant to an assessment of his knowing

exercise of the right to defend himself.” Id. at 836.

{¶37} There is simply nothing in the record to establish that Thigpen’s discovery

refusal was a delay tactic or an obstruction of an otherwise orderly proceeding. That is

not to say that at anytime Thigpen’s conduct does obstruct the integrity and efficacy of the

proceedings, the trial court cannot revoke his right to represent himself. The trial court

maintains the authority to revoke Thigpen’s self-representation prior to and throughout

his trial.

{¶38} Accordingly, we sustain Thigpen’s assignment of error.

{¶39} Thigpen moved to file an amended pro se assignment of error, arguing that

the trial court and this court lacked subject matter jurisdiction over him. Thigpen

repeatedly argued to the trial court that he did not “consent to trial” because he declared

himself a “sovereign citizen.” Although we are denying his pro se motion as moot, we

note that the trial court and this court absolutely have subject matter jurisdiction over him.

Thigpen’s arguments are frivolous and have been held to be delay tactics. See, e.g.,

United States v. Benabe, 654 F.3d 753, 761-767 (7th Cir.2011); United States v.

Hilgeford, 7 F.3d 1340, 1342 (7th Cir.1993); Maxwell v. Snow, 409 F.3d 354, 358

(D.C.Cir.2005). Upon remand, we highly recommend Thigpen focus on representing

himself and defending his case and not waste the court’s time arguing this issue. Again,
we emphasize that the trial court maintains the authority to revoke Thigpen’s

self-representation prior to and throughout his trial.

{¶40} Judgment reversed and remanded to the lower court for further proceedings

consistent with this opinion.

It is ordered that appellant recover of appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY J. BOYLE, ADMINISTRATIVE JUDGE

EILEEN T. GALLAGHER, J., CONCURS;
TIM McCORMACK, J., DISSENTS WITH SEPARATE OPINION

TIM McCORMACK, J., DISSENTING:

{¶41} I respectfully dissent from the majority opinion’s disposition of this

appeal. As the majority correctly states, the constitutions of this state and this nation

afford a criminal defendant the right to self-representation. That right, however, is not

absolute. The interest in ensuring the integrity and efficiency of the trial can, at times,

outweigh a criminal defendant’s interest in acting as his own lawyer. While the trial

court in this case initially determined that Thigpen was competent and he knowingly,
intelligently, and voluntarily waived his right to counsel, an otherwise competent

defendant may be denied the right to proceed pro se when his request is shown to be

manipulative.

{¶42} Here, the trial court revoked its decision to allow Thigpen to proceed pro se

four days after allowing Thigpen to waive his right to counsel, finding that Thigpen’s true

approach and intentions were purposeful delay tactics meant to obstruct the judicial

process. In support of its decision, the trial court concluded that, based upon Thigpen’s

refusal of discovery because it was “late,” his repeated refusal to “consent” to going to

trial, and his behavior at the hearings, Thigpen never actually intended to represent

himself.

{¶43} Trial judges are held to strict standards. They must, on an hourly basis,

arbitrate the meaning and application of our constitutions, statutes, legal precedents, court

rules, and procedures. Any significant deviation from an accepted range invites the

sanction of reversal.

{¶44} When and where a criminal defendant demands to represent himself during

a felony murder trial, as in this case, the trial judge must give full and fair consideration

to the accused’s demand. Multiple decisions at both the state and federal levels make

that clear. Where the demand is made in good faith, and where the demand can be

accommodated without inherently violating the accused’s right to fair and timely due

process, then the demand must be accommodated.
 {¶45} There is, though, nothing to be found in our constitutions, statutes, or stare

decisis that would render a trial judge a mannequin, an empty robe, an arbiter devoid of

real-time judgment. If, as in this matter, the trial judge determines in his or her best

real-time judgment that the demand for self- representation is actually a subterfuge, a

charade, a well-planned cynical tactic to confuse and prolong the administration of

justice, then we ought not undercut that front line decision of the trial court to deny the

motion.

{¶46} Good faith thought and determination are mandated. Nothing therein

though favors the surrender of a courtroom to a defendant who has repeatedly

demonstrated that he is dedicated to stripping the court’s authority to administer fair and

practical justice.

{¶47} Having the benefit of observing Thigpen’s behavior and listening to his

rhetoric throughout the proceedings, the trial court was in the best position to distinguish

between a manipulative effort and a sincere desire to proceed pro se. See State v.

Halder, 8th Dist. Cuyahoga No. 87974, 2007-Ohio-5940; see also United States v.

Frazier-El, 204 F.3d 553, 560 (4th Cir.2000). I would therefore find that the trial court

acted within its discretion when it revoked its decision to allow Thigpen to proceed pro

se. I would respectfully submit that the record supports the trial court’s conclusion.