State v. Burrell

[Cite as State v. Burrell, 2014-Ohio-1356.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2013-L-024
- vs - :

CHARLES E. BURRELL, JR., :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR
000519.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Harvey B. Bruner, Harvey B. Bruner Co., LPA, Hoyt Block Building, 700 West St. Clair
Avenue, Suite 110, Cleveland, OH 44113 (For Defendant-Appellant).

DIANE V. GRENDELL, J.

{¶1} Defendant-appellant, Charles E. Burrell, Jr., appeals his convictions in the

Lake County Court of Common Pleas for Felonious Assault, Domestic Violence,

Criminal Damaging, Menacing by Stalking, Aggravated Menacing, and

Telecommunications Harassment. The issue to be determined by this court is whether

a defendant should be permitted to change trial counsel on the date of trial, and whether

such counsel is ineffective, when he and the defendant have difficulties in their
relationship and counsel does not provide defendant all available evidence prior to trial.

For the following reasons, we affirm the judgment of the trial court.

{¶2} On November 30, 2012, Burrell was indicted by the Lake County Grand

Jury for Felonious Assault (Count One), a felony of the second degree, in violation of

R.C. 2903.11(A)(1); two counts of Domestic Violence (Counts Two and Five), a felony

of the third degree and a misdemeanor of the first degree, in violation of R.C.

2919.25(B) and (C); Criminal Damaging or Endangering (Count Three), a misdemeanor

of the second degree, in violation of R.C. 2909.06(A)(1); Menacing by Stalking (Count

Four), a felony of the fourth degree, in violation of R.C. 2903.211; Aggravated Menacing

(Count Six), a misdemeanor of the first degree, in violation of R.C. 2903.21; and

Telecommunications Harassment (Count Seven), a misdemeanor of the first degree, in

violation of R.C. 2917.21(B).

{¶3} A jury trial was held in this matter on January 15 and 16, 2013.

{¶4} On January 15, prior to the start of the trial, while discussing the plea

bargain offered by the State, Burrell asserted that the plea offer “wasn’t truthful”

because “it wasn’t clearly explained that [he] wanted another attorney.” He also stated

that he “seldomly” got to talk to his attorney about the offer.

{¶5} Burrell explained that he wanted a new attorney, since his attorney had

not been honest or truthful, lied to his mother, did not provide him all available evidence,

and “tells [him] one thing but they come to another thing.” Burrell stated that this

behavior had been occurring since July of 2012, and he had been trying to get a

different attorney since then. He admitted that he had never brought this to the

attention of the court.

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 {¶6} Defense counsel responded that he had not presented Burrell with DVDs

or videos because there were none. He noted that he showed medical records to

Burrell, which were going to be used in the defense strategy to show that the victim was

lying, and that this was discussed with Burrell. Counsel indicated that he was prepared

to go forward with the trial.

{¶7} The court noted that it was familiar with defense counsel, that he was a

“good trial attorney” and there was nothing to indicate otherwise to the court. The court

found that Burrell did not present any specific information that his defense had been

jeopardized. The court found that there was no irreconcilable breakdown in the

attorney-client relationship and the trial proceeded.

{¶8} Amber Thornton testified that she had a three year old daughter with

Burrell and that the two had dated in the past. She explained that they had a violent

relationship. She described several incidents involving assaults committed by Burrell

against her over a period of two years. Police testimony confirmed that Burrell had

been convicted for domestic violence against Thornton in the past.

{¶9} Regarding the incidents that led to the charges in the present case,

Thornton testified that on April 4, 2012, Burrell grabbed her hand, stuck it into a heated

skillet, and held it there for a few seconds. She received treatment for this injury, but

did not report to the hospital or police that Burrell had caused the injury. In July of 2012,

Thornton obtained a temporary protection order against Burrell. On July 7, 2012, Burrell

came to the home where she was staying, caused a disturbance, and broke the door.

{¶10} Following these incidents, Burrell began calling Thornton repeatedly and

sent her text messages that became increasingly “intense and * * * threatening.”

Thornton identified the messages and calls made from Burrell in the phone records.

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 {¶11} On July 26, 2012, police were contacted regarding these text messages.

Thornton subsequently went to the police station to show officers the text messages she

had been receiving and noted that Burrell was still sending her messages.

{¶12} On that same date, Burrell had been arrested on a preexisting warrant. A

video of Burrell in the police booking room on that date was played for the jury and was

described by Lieutenant Randy Sevel of the Willoughby Police Department as showing

Burrell sending text messages on his cell phone.

{¶13} Detective Thomas Bertone, of the Willoughby Police Department, testified

that, after being provided with Thornton’s cell phone, he was able to extract information

regarding text messages sent from Burrell to her. He was also able to obtain that

information from Burrell’s phone after he had been taken into custody. Sprint cell phone

records were submitted into evidence, showing the dates and times of the phone calls.

The testimony and evidence established that Burrell sent Thornton many text messages

early in the morning on July 26, including a message that stated “laugh it up with your

friends ‘cuz you not gonna see them or [her daughter] again. I swear on my life [I’m

going] to kill you, if it’s the last thing I do. * * * You’re * * * dead.” He sent additional

threatening messages on that date. One message was sent at 3:54 p.m., at the time

Burrell was in police custody, that stated, “I don’t want to see [my daughter] ever again.

* * * I hate you.” Bertone testified that, starting late on July 25 and continuing on July

26, Burrell placed 96 phone calls to Thornton and sent 19 text messages.

{¶14} On January 17, 2013, the jury found Burrell guilty of all charges contained

in the Indictment. This verdict was memorialized in the trial court’s January 18, 2013

Judgment Entry.

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 {¶15} Following a sentencing hearing on February 25, 2013, a Judgment Entry

of Sentence was issued by the trial court. Burrell was sentenced to a total term of

seven years in prison.

{¶16} Burrell timely appeals and raises the following assignments of error:

{¶17} “[1.] The trial court’s denial of appellant’s request for new counsel was an

abuse of discretion.

{¶18} “[2.] Appellant received ineffective assistance of counsel when counsel

failed to inform the appellant of the evidence in the case and effectively communicate

with the appellant.”

{¶19} In his first assignment of error, Burrell argues that the trial court abused its

discretion in denying his request for a new attorney, since there was a “severe

breakdown in the attorney-client relationship,” in that, according to him, counsel failed to

provide him with evidence, was not honest with him, rarely met with him, and had been

disrespectful.

{¶20} The State asserts that Burrell showed bad faith by requesting new counsel

on the date of the trial and failed to provide support for the contention that there was a

breakdown in the attorney-client relationship.

{¶21} “Whether a trial court errs by refusing to allow a defendant to discharge

his or her counsel or seek substitute counsel is reviewed under an abuse of discretion

standard.” State v. Wiley, 11th Dist. Ashtabula No. 2012-A-0012, 2012-Ohio-5121, ¶

73, citing State v. Cowans, 87 Ohio St.3d 68, 73, 717 N.E.2d 298 (1999); State v.

Sanders, 11th Dist. Lake No. 2007-L-062, 2008-Ohio-1126, ¶ 9.

{¶22} When confronted with a request for the appointment of new counsel, “it is

the duty of the trial judge to inquire into the complaint and make such inquiry a part of

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the record. The trial judge may then require the trial to proceed with assigned counsel

participating if the complaint is not substantiated or is unreasonable.” State v. Deal, 17

Ohio St.2d 17, 244 N.E.2d 742 (1969), syllabus.

{¶23} An indigent defendant’s right to counsel does not extend to counsel of his

choice. Thurston v. Maxwell, 3 Ohio St.2d 92, 93, 209 N.E.2d 204 (1965). This right

also does not require that appointed counsel develop and share a “meaningful

relationship” with his client. State v. Blankenship, 102 Ohio App.3d 534, 558, 657

N.E.2d 559 (12th Dist.1995), citing Morris v. Slappy, 461 U.S. 1, 13, 103 S.Ct. 1610, 75

L.Ed.2d 610 (1983).

{¶24} Three recognized examples of good cause which would warrant the

discharge of court-appointed counsel include: “(1) a conflict of interest; (2) a complete

breakdown of communication; and (3) an irreconcilable conflict which could cause an

apparent unjust result.” (Citations omitted.) State v. Lewis, 11th Dist. Lake No. 2012-L-

074, 2013-Ohio-3974, ¶ 47. Before a defendant is entitled to discharge appointed

counsel, “the defendant must show a breakdown in the attorney-client relationship of

such magnitude as to jeopardize the defendant’s right to effective assistance of

counsel.” State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988), paragraph four

of the syllabus.

{¶25} In the present case, on the date of the trial, Burrell argued to the court that

he wanted “to get a different lawyer.” He believed that counsel is “more or less” a

prosecutor who tried to convince him to take a plea deal. He also asserted that counsel

had lied to him. When asked by the court to provide a specific example of when

counsel had lied, Burrell stated that he lied about the “30 day waiver of being indefinite

waiver,” (sic) but did not further explain what this meant.

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 {¶26} The trial court then inquired as to what counsel had done to represent

Burrell. Defense counsel explained that he had gone over the trial strategy with Burrell,

developed the defense related to the victim’s lack of credibility, and reviewed relevant

records related to that defense with Burrell.

{¶27} Based on the foregoing, the trial court took the appropriate steps to

address Burrell’s request for new counsel. Burrell provided little in the way of concrete

or specific examples of why he could not continue on with appointed counsel. His

general assertions about counsel being untruthful, when coupled with counsel’s

assurances to the court that he had prepared for trial and had discussed the trial

strategy with Burrell, provided support for the trial court’s conclusion that the motion

should be denied.

{¶28} Burrell takes issue with defense counsel’s failure to provide him with

DVDs or videos. Defense counsel stated to the trial court that there “are no DVDs or

videos.” However, a review of the record indicates that a DVD of Burrell sitting in the

booking area of the police station, using his phone, was presented at trial and provided

to defense counsel. While it does appear there was a misunderstanding or

misstatement to the trial court about the existence of this video, this did not warrant

appointment of new counsel. Defense counsel explained that he had provided relevant

evidence to Burrell, which shows that he did not purposely withhold evidence. Further,

this video only showed Burrell using his phone, and did not actually provide evidence of

the charges against him, i.e., that he sent threatening messages to Thornton. The

phone records and review of his own phone provided more than sufficient evidence

regarding that charge. Thus, the failure to provide this video had no impact on

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counsel’s ability to represent Burrell and caused no prejudice to him.1 See State v.

Lewis, 11th Dist. Lake No. 2012-L-074, 2013-Ohio-3974, ¶ 52-53 (counsel’s failure to

discern a detail that did not impact the trial did not provide grounds for a change in

appointed counsel).

{¶29} Further, we note that Burrell’s request for new counsel was made on the

date of the trial, a fact which lends additional support to the trial court’s denial. When a

motion to substitute counsel is made on the day of trial, this “intimates such motion is

made in bad faith for the purposes of delay.” State v. Haberek, 47 Ohio App.3d 35, 41,

546 N.E.2d 1361 (8th Dist.1988). “When a defendant’s request for new counsel is

made for purposes of delay or made in bad faith, the court’s interest in the orderly and

efficient administration of justice outweighs the defendant’s right to counsel of his

choice.” State v. Griesmar, 11th Dist. Lake No. 2009-L-061, 2010-Ohio-824, ¶ 20. In

fact, the trial court expressed concern with the fact that Burrell never raised his issues

with counsel prior to the date of trial, especially given that Burrell stated that he had

these concerns since July of 2012. Burrell admitted that he had not attempted to file

any motion for new counsel with the court during the course of the proceedings. Based

on this, the court was justified in denying his request. Id. at ¶ 23 (defendant was not

entitled to a last minute change in counsel, since he had “ample time to request a

continuance and/or obtain private counsel of his choosing,” had “never expressed any

dissatisfaction with his court appointed attorney, * * * a private attorney never entered a

notice of appearance,” and he “failed to provide the trial court with an adequate reason

why his appointed counsel should be replaced”).

1. Although Burrell also takes issue with counsel’s statement that there were no “videos or DVDs” to
provide because 911 calls were played during the trial, counsel never stated that audio recordings did not
exist.

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 {¶30} In light of the foregoing, we cannot find that the trial court abused its

discretion in denying his request for new counsel. Even if Burrell did not get along well

with counsel, “the existence of hostility or a personal conflict between the attorney and

the defendant does not constitute a total breakdown so long as it does not inhibit the

attorney from both preparing and presenting a competent defense.” Lewis, 2013-Ohio-

3974, at ¶ 48. There is no indication that the relationship between the two prevented

defense counsel from performing his duties as an attorney. State v. Goodman, 11th

Dist. Trumbull No. 2006-T-0130, 2007-Ohio-6252, ¶ 34 (noting the significance, in a

motion for substitution of counsel, of the court considering whether defense counsel

was able to communicate during trial and put on a strong defense).

{¶31} The first assignment of error is without merit.

{¶32} In his second assignment of error, Burrell argues that he received

ineffective assistance of counsel, since he was not informed of all of the evidence

against him and counsel did not “encourag[e] a trusting, open relationship.”

{¶33} The State argues that defense counsel was not ineffective because he

properly represented Burrell and followed an acceptable trial strategy.

{¶34} The Ohio Supreme Court has adopted a two-part test to decide whether

an attorney’s performance is below the constitutional standard for effective assistance

of counsel. To reverse a conviction due to ineffective assistance of counsel, the

defendant must prove “(1) that counsel’s performance fell below an objective standard

of reasonableness, and (2) that counsel’s deficient performance prejudiced the

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.”

State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland

v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “In any

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case presenting an ineffectiveness claim, the performance inquiry must be whether

counsel’s performance was reasonable considering all the circumstances.” Strickland

at 688. “There is a strong presumption that the attorney’s performance was

reasonable.” State v. Gotel, 11th Dist. Lake No. 2006-L-015, 2007-Ohio-888, ¶ 10.

{¶35} As discussed in the previous assignment of error, there was little evidence

that defense counsel did not adequately communicate with Burrell. Burrell stated that

he did not trust counsel, with limited specific examples of how counsel was actually

deficient. This version of events was contradicted by defense counsel’s statements to

the court.

{¶36} Moreover, a review of the record reveals that counsel’s representation of

Burrell at the trial was not ineffective. Counsel had discussed the trial strategy with

Burrell and proceeded to discredit the victim, based on Burrell’s statements that she

was lying. Throughout the trial, defense counsel cross-examined several witnesses,

including Thornton, regarding the incident during which her hand was burned. He

inquired into why she had not reported that Burrell injured her, why she had stated that

it was an accident, and whether she was lying about the events that occurred. He also

further questioned Thornton about the content of text messages where she was joking

about her conflict with Burrell, further attempting to discredit her testimony.

{¶37} Finally, regarding trial counsel’s failure to provide Burrell with the DVD

presented at trial, we again apply the analysis discussed above. The DVD shows only

that Burrell was in the police booking room, holding his phone. It is not clear exactly

what he is doing or whom he may be text messaging. Any potential error by counsel in

failing to provide the video to Burrell was outweighed by the overwhelming evidence

supporting the charges for which this evidence would be relevant, i.e., the telephonic

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harassment and menacing charges. This evidence included both cell phone records of

repeated calls, records retrieved by police from the cell phone that showed the content

of all of the text messages, as well as Thornton’s testimony regarding the messages.

See State v. Tipton, 11th Dist. Portage No. 2012-P-0072, 2013-Ohio-3207, ¶ 46 (“even

if trial counsel’s conduct was ineffective for any of the foregoing alleged deficiencies, he

failed to prove prejudice in light of the overwhelming and undisputed evidence of his

guilt”). Even if Burrell had seen the DVD, it would not have changed the outcome of the

trial, and we can find no prejudice.

{¶38} The second assignment of error is without merit.

{¶39} For the foregoing reasons, Burrell’s convictions for Felonious Assault,

Domestic Violence, Criminal Damaging, Menacing by Stalking, Aggravated Menacing,

and Telecommunications Harassment in the Lake County Court of Common Pleas are

affirmed. Costs to be taxed against appellant.

CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.

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