[Cite as State v. Perry, 2011-Ohio-2242.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      25271

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MARQUEZ B. PERRY                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 08 01 0067(A)

                                  DECISION AND JOURNAL ENTRY

Dated: May 11, 2011



        CARR, Judge.

        {¶1}     Appellant, Marquez Perry, appeals his conviction out of the Summit County

Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     On January 18, 2008, Perry was indicted on two counts of murder in violation of

R.C. 2903.02(A)/(B), special felonies; two counts of tampering with evidence in violation of

R.C. 2921.12(A)(1), felonies of the third degree; one count of having weapons while under

disability in violation of R.C. 2923.13(A)(2), a felony of the third degree; and one count of

trafficking in marijuana, a felony of the fourth degree. The murder, tampering, and trafficking

charges each included a firearm specification pursuant to R.C. 2941.145, while the trafficking

charge also included a criminal forfeiture specification pursuant to R.C. 2941.1417. Perry

pleaded not guilty to the charges at arraignment.
                                                 2


       {¶3}    Perry retained counsel.     On February 20, 2008, retained counsel moved to

withdraw for the reason that Perry had failed to abide by the terms and conditions of the

attorney-client contract. On February 26, 2008, the trial court granted the motion to withdraw

and appointed an attorney to represent Perry. On March 10, 2008, the trial court appointed a

second attorney as co-counsel for Perry.

       {¶4}    On June 19, 2008, Perry was indicted on three additional counts: two counts of

aggravated murder in violation of R.C. 2903.01(B), special felonies; and one count of aggravated

robbery in violation of R.C. 2911.02(A)(1) and/or (3). All three supplemental counts carried

firearm specifications pursuant to R.C. 2941.145. Perry pleaded not guilty to the charges in the

supplemental indictment. The trial court scheduled the matter for trial on August 18, 2008.

       {¶5}    On August 1, 2008, defense counsel filed a motion to compel the State to produce

certain evidence and complete testing on others. On August 14, 2008, defense counsel filed a

motion to continue the trial to allow time for gun shot residue testing on certain evidence.

       {¶6}    Perry sent a pro se motion for waiver of counsel to the trial court. The trial court

addressed the motion at a hearing on August 18, 2008, and the motion was filed on August 19,

2008. Although Perry’s pro se motion is not docketed on the transcript of docket and journal

entries, it bears a time-stamp from the Summit County Clerk of Courts and a copy of the motion

is contained in the record on appeal. On August 25, 2008, the trial court denied Perry’s pro se

motion.

       {¶7}    On October 3, 2008, the State amended the charge of having weapons while under

disability to reflect a charge pursuant to R.C. 2923.13(A)(2)/(3), a felony of the third degree.

       {¶8}    The matter proceeded to trial. The jury found Perry guilty of two counts of

aggravated murder along with the companion firearm specifications, two counts of murder along
                                                3


with the companion firearm specifications, one count of aggravated robbery along with the

companion firearm specification, and two counts of tampering with evidence.             The State

dismissed the remaining counts of having weapons while under disability, trafficking in

marijuana, and all other firearm and criminal forfeiture specifications. At sentencing, the trial

court merged the two counts of murder into the two counts of aggravated murder and sentenced

Perry to an aggregate term of sixty-six years to life imprisonment on the remaining charges.

       {¶9}    Perry filed a timely appeal. By journal entry, this Court vacated Perry’s sentence

and remanded the matter to the trial court for resentencing according to law. State v. Perry (Sep.

3, 2009), 9th Dist. No. 24527. The trial court resentenced Perry on January 26, 2010. Perry has

filed a timely appeal in which he raises three assignments of error. This Court rearranges some

assignments of error to facilitate review.

                                                II.

                                 ASSIGNMENT OF ERROR I

       “THE TRIAL COURT COMMITTED PER SE REVERSIBLE ERROR WHEN
       IT DENIED APPELLANT THE CONSTITUTIONAL RIGHT TO REPRESENT
       HIMSELF AT TRIAL.”

       {¶10} Perry argues that the trial court erred by denying his motion to waive his right to

counsel and represent himself pro se. This Court disagrees.

       {¶11} More than thirty-five years ago, the United States Supreme Court held that,

implicit in the structure of the Sixth Amendment, a criminal defendant has a constitutional right

to self-representation. Faretta v. California (1975), 422 U.S. 806, 819. The following year, the

Ohio Supreme Court acknowledged that a criminal defendant may elect to defend himself

without counsel after knowingly, voluntarily, and intelligently waiving his right to counsel. State

v. Gibson (1976), 45 Ohio St.2d 366, 377-78.          Significantly, however, the right to self-
                                                  4


representation “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.A.9, 2000), 241 F.3d

765, 774. The Ninth Circuit reasoned: “Because invocation of the right to self-representation

entails a concomitant forfeiture of the important benefits offered by the right to counsel, our

cases have come to recognize certain limitations on a defendant’s right to self-representation. A

defendant may not invoke the Faretta right if the Faretta demand is untimely, equivocal, made

for the purpose of delay, or is not knowingly and intelligently made.” Sandoval, 241 F.3d at 774.

Furthermore, because “courts [must] indulge in every reasonable presumption against waiver” of

the right to counsel, a strict standard must be applied when determining the adequacy of a

criminal defendant’s invocation of the right to self-representation. Brewer v. Williams (1977),

430 U.S. 387, 404.

       {¶12} When a criminal defendant has properly invoked his right to self-representation, a

trial court’s denial of that right constitutes per se reversible error. State v. Vrabel, 99 Ohio St.3d

184, 2003-Ohio-3193, at ¶49, citing State v. Reed (1996), 74 Ohio St.3d 534, 535, citing

McKaskle v. Wiggins (1984), 465 U.S. 168, 177. Perry argues that a criminal defendant properly

invokes his right to self-representation “simply” where he has “timely” invoked the right. The

Ohio Supreme Court has clearly and repeatedly held that a criminal defendant waives the right to

self-representation if he fails to assert it in both a timely and unequivocal manner. State v.

Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, at ¶38; State v. Dean, 127 Ohio St.3d 140, 2010-

Ohio-5070, at ¶67. This Court concludes that Perry failed to unequivocally invoke his right to

self-representation.
                                                5


       {¶13} In his pro se motion for waiver of counsel, Perry complains that one of the

attorneys appointed to represent him exhibits “ignorance” regarding the case, while he (Perry) is

“fully capable of preparing the best defense possible.” Perry wrote that he is “very afraid to go

into trial with [one of the appointed attorneys]” because he believes that that attorney “knows

how to sell a client out[.]” The trial court held a hearing on Perry’s motion. The judge informed

Perry of some of the responsibilities he would assume if he were to represent himself and

difficulties he would face in meeting those responsibilities given his young age (19) and lack of

legal training. The trial court informed Perry that it believed that both of his attorneys are

effective attorneys. The court noted Perry’s specific concerns regarding one of the attorneys and

advised Perry that he must provide his attorneys with the information he believes will aid in his

defense. The trial court explained that he will not be permitted to “spring” a “secret defense” on

the State and jury during trial. The judge explained that she was not going to allow Perry to

represent himself because of the complexities he would face while trying to comply with the

procedural rules, some of which he earlier indicated he did not understand. The judge asked

whether Perry understood what she was telling him and he responded, “Yes, ma’am.” When the

court asked whether he had any questions, Perry responded, “No.” The trial court then denied

Perry’s motion to represent himself and advised him to talk to his attorneys about the evidence

he believed must be presented to the jury.

       {¶14} The better practice may be for the trial court in all cases to make sufficient inquiry

to ensure that the criminal defendant understands the “seriousness of the trial and the possible

results it could have for his liberty and life” when considering a motion to proceed pro se. See

Gibson, 45 Ohio St.2d at 377. In the absence of sufficient inquiry, the trial court cannot properly

determine that the defendant has knowingly, voluntarily, and intelligently waived his right to
                                                6


counsel. Id. at paragraph two of the syllabus. However, unlike the right to counsel, the right to

self-representation is waived in the absence of a timely, clear, and unequivocal invocation of the

right. It is, therefore, axiomatic that the denial of a motion to proceed pro se does not implicate

the same depth of inquiry where the right has not been properly invoked.

       {¶15} Perry’s invocation of his right to self-representation was not clear and

unequivocal. He declined to pursue the matter despite the trial court’s willingness to entertain

his questions. His failure to attempt to dispel the concerns raised by the trial court amounted to

his acquiescence and tacit abandonment of his motion. He never raised the issue again during

the next seven weeks prior to the commencement of trial or during trial.

       {¶16} Moreover, the basis for his motion to waive counsel centered on his concerns

about only one of his appointed attorneys.       Perry never voiced any concern for his other

attorney’s abilities or integrity either in writing or orally at the hearing. The Ohio Supreme

Court has held: “In Ohio, a criminal defendant has the right to representation by counsel or to

proceed pro se with the assistance of standby counsel.          However, these two rights are

independent of each other and may not be asserted simultaneously.” State v. Martin, 103 Ohio

St.3d 385, 2004-Ohio-5471, paragraph one of the syllabus. Perry did not seek the removal of his

second attorney. He failed to address any deficiencies of his other attorney in support of his

motion to waive counsel.       In effect, Perry sought the right to self-representation while

maintaining the assistance of his remaining attorney. On the authority of Martin, he was not

entitled to such hybrid representation. “[R]equiring a defendant to clearly and unequivocally

waive counsel and elect self-representation, ‘prevents a defendant from taking advantage of and

manipulating the mutual exclusivity of the rights to counsel and self-representation.’” State v.

Haines, 10th Dist. No. 05AP-55, 2005-Ohio-5707, at ¶26, quoting United States v. Frazier-El
                                                 7


(C.A.4, 2000), 204 F.3d 553, 559. Because Perry did not clearly and unequivocally assert his

right to self-representation, he did not properly invoke the right. Accordingly, the trial court did

not err by denying his pro se motion to waive counsel. Perry’s first assignment of error is

overruled.

                                ASSIGNMENT OF ERROR III

       “THE TRIAL COURT COMMITTED PLAIN ERROR TO THE PREJUDICE
       OF APPELLANT WHEN IT FAILED TO INSTRUCT THE JURY ON SELF
       DEFENSE WHERE THE TESTIMONY AT TRIAL WARRANTED SUCH AN
       INSTRUCTION, AND DEFENSE COUNSEL FAILED TO REQUEST SUCH
       AN INSTRUCTION.”

       {¶17} Perry argues that the trial court committed plain error when it failed to instruct the

jury on self-defense. This Court disagrees.

       {¶18} Perry did not present self-defense as the theory of his defense in his opening

statement. He did not argue self-defense in his closing argument. The State noted in its closing

argument that Perry was not raising self-defense.

       {¶19} The trial court did not instruct the jury on self-defense. It did instruct the jury that

to act purposely, as required to establish aggravated murder and murder, means to act

“intentionally and not accidentally.” The trial court instructed the jury on the “transfer of

purpose” doctrine in relation to one of the charges of aggravated murder, explaining that one is

responsible for the natural and foreseeable consequences of his actions. In addition, the trial

court instructed the jury as to complicity, addressing a “common purpose to commit a crime.”

       {¶20} Perry failed to object to the jury instructions. Crim.R. 52(B) permits a court to

notice plain errors or defects which affect substantial rights although they have not been brought

to the attention of the court. This Court reviews an issue for plain error in cases where the

appellant has otherwise forfeited the issue on appeal by failing to raise it below at a time when
                                                  8


the trial court had the opportunity to correct the alleged error. State v. Dent, 9th Dist. No. 20907,

2002-Ohio-4522, at ¶6. A reviewing court must take notice of plain error only with the utmost

caution, and only then to prevent a manifest miscarriage of justice. State v. Bray, 9th Dist. No.

03CA008241, 2004-Ohio-1067, at ¶12. This Court may not reverse the judgment of the trial

court on the basis of plain error, unless Perry has established that the outcome of the trial clearly

would have been different but for the alleged error. State v. Kobelka (Nov. 7, 2001), 9th Dist.

No. 01CA007808, citing State v. Waddell (1996), 75 Ohio St.3d 163, 166.

       {¶21} A criminal defendant has the burden of proving the affirmative defense of self-

defense by a preponderance of the evidence. State v. Martin (1986), 21 Ohio St.3d 91, syllabus;

R.C. 2901.05(A). An affirmative defense constitutes a “justification for admitted conduct[,] ***

not a mere denial or contradiction of evidence which the prosecution has offered of an essential

element of the crime charged[.]” State v. Poole (1973), 33 Ohio St.2d 18, 19.

       {¶22} A trial court need not instruct the jury on self-defense unless the defendant has

successfully raised the affirmative defense by introducing “sufficient evidence, which, if

believed, would raise a question in the minds of reasonable men concerning the existence of such

issue.” State v. Melchior (1978), 56 Ohio St.2d 15, paragraph one of the syllabus. The Ohio

Supreme Court has held:

       “To establish self-defense, the following elements must be shown: (1) the slayer
       was not at fault in creating the situation giving rise to the affray; (2) the slayer has
       a bona fide belief that he was in imminent danger of death or great bodily harm
       and that his only means of escape from such danger was in the use of such force;
       and (3) the slayer must not have violated any duty to retreat or avoid the danger.”
       State v. Robbins (1979), 58 Ohio St.2d 74, paragraph two of the syllabus.

The defendant’s failure to prove any of these elements by a preponderance of the evidence

negates his assertion of self-defense. State v. Williford (1990), 49 Ohio St.3d 247, 249.
                                                9


       {¶23} Significantly, “it has long been established that accident is not an affirmative

defense in this state.” Poole, 33 Ohio St.2d at 20, citing Jones v. State (1894), 51 Ohio St. 331.

The concepts of self-defense and accident are distinct and not interchangeable. “Self-defense

presumes intentional, willful use of force to repel force or escape force. Accidental force or

shooting is exactly the contrary, wholly unintentional and unwillful.” State v. Champion (1924),

109 Ohio St. 281, 286-87. This Court has elaborated: “While accident ‘involves the denial of a

culpable mental state and is tantamount to the defendant not committing an unlawful act,’ one

claiming self-defense ‘concedes [that] he had the purpose to commit the act, but asserts that he

was justified in his actions.’” State v. Howe (July 25, 2001), 9th Dist. No. 00CA007732, quoting

State v. Barnd (1993), 85 Ohio App.3d 254, 260.

       {¶24} In this case, Tammy Dickey and Scott Smith were killed after being shot multiple

times during an arranged drug deal in Ms. Dickey’s car. Ms. Dickey, Perry’s girlfriend, arranged

the drug deal on his behalf. As Ms. Dickey sat in the driver’s seat, Mr. Smith entered the

vehicle’s rear passenger seat. Perry sat in the front passenger seat, while his friend, identified

only as “Brian,” sat behind Ms. Dickey. Mr. Smith brought a large quantity of marijuana for

sale, while Perry was to have brought $1200. During the transaction, guns were drawn and shots

were fired. Ms. Dickey was shot twice, once through her jugular vein, causing her immediate

death. Mr. Smith was shot five times. He died shortly thereafter, after an unsuccessful surgery

to repair the damage.

       {¶25} Several witnesses in the area testified that they heard gunshots and observed Perry

shortly thereafter outside the vehicle “fidgeting” with a hand gun. Perry fled the scene and drove

to a nearby Circle K store parking lot where he called 911. The police followed two sets of

footprints in the fresh snow to a fence. They recovered two hand guns in the snow on the other
                                                 10


side of the fence. Bullets and casings recovered at the scene and from and around the two

victims were determined to have been fired from one or the other of the two guns found near the

Circle K. Perry’s DNA was found on the triggers of both recovered guns.

       {¶26} Perry testified in his own defense at trial. He admitted that he was involved in the

drug transaction in Ms. Dickey’s car. He testified that Mr. Smith showed the marijuana he

brought for sale but then reached to his side, pulled out a gun, and pointed it at Perry. Perry

testified that he and Mr. Smith began “wrestling” and that the “gun started going off.” He

testified that “Brian” pulled out a gun that he and Perry “shared” and that “Brian” shot Mr.

Smith. Perry testified that, after “Brian” started shooting, Mr. Smith exclaimed, “Ow, I’m shot.”

He testified that he heard three or four shots from “Brian’s” gun. Perry further denied shooting

Ms. Dickey.

       {¶27} Perry claimed not to have shot either victim. The State, however, presented

circumstantial evidence that he did as well as evidence of a common criminal purpose between

Perry and “Brian.” While testifying about his struggle with Mr. Smith over a gun, Perry was

careful to assert that the “gun started going off” rather than asserting that a specific person began

firing the gun. Rather than taking responsibility for firing the gun, Perry’s testimony indicated

that the discharge of the gun was accidental. Such evidence does not merit a self-defense

instruction and, in fact, precludes it. Moreover, Perry never testified or presented any evidence

that he was in fear of imminent death or great bodily harm to himself. On the contrary, he

testified that he wrestled with Mr. Smith in an effort to “keep the gun away from [Smith].” Such

testimony tends to prove that Perry was attempting to keep Mr. Smith safe from any shots

accidentally fired from the gun. Because Perry presented no evidence that he intentionally fired

the gun to protect himself from imminent death or great bodily harm, and he instead presented
                                                 11


evidence that the firing of the gun was accidental, there was no error in the trial court’s failure to

instruct on self-defense. Perry’s third assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       “APPELLANT  WAS   DENIED    HIS   CONSTITUTIONAL   SIXTH
       AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.”

       {¶28} Perry argues that counsel was ineffective for failing to request an instruction on

self-defense. This Court disagrees.

       {¶29} To establish the existence of the ineffective assistance of counsel, Perry must

satisfy a two-prong test:

       “First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.
       Second, the defendant must show that the deficient performance prejudiced the
       defense. This requires showing that counsel’s errors were so serious as to deprive
       the defendant of a fair trial, a trial whose result is reliable.” Strickland v.
       Washington (1984), 466 U.S. 668, 687.

Perry bears the burden of proving that counsel’s assistance was ineffective. State v. Hoehn, 9th

Dist. No. 03CA0076-M, 2004-Ohio-1419, at ¶44, citing State v. Colon, 9th Dist. No. 20949,

2002-Ohio-3985, at ¶49; State v. Smith (1985), 17 Ohio St.3d 98, 100.

       {¶30} The Ohio Supreme Court has recognized that a court need not analyze both

prongs of the Strickland test, where the issue may be disposed upon consideration of one of the

factors. State v. Bradley (1989), 42 Ohio St.3d 136, 143. Specifically,

       “‘Although we have discussed the performance component of an ineffectiveness
       claim prior to the prejudice component, there is no reason for a court deciding an
       ineffective assistance claim to approach the inquiry in the same order or even to
       address both components of the inquiry if the defendant makes an insufficient
       showing in one. In particular, a court need not determine whether counsel’s
       performance was deficient before examining the prejudice suffered by the
       defendant as a result of the alleged deficiencies. The object of an ineffectiveness
       claim is not to grade counsel’s performance. If it is easier to dispose of an
       ineffectiveness claim on the ground of lack of sufficient prejudice, which we
                                                 12


       expect will often be so, that course should be followed. Courts should strive to
       ensure that ineffectiveness claims not become so burdensome to defense counsel
       that the entire criminal justice system suffers as a result.’” Id., quoting Strickland,
       466 U.S. at 697.

       {¶31} This Court has already determined that a self-defense instruction was not

warranted based on the evidence adduced at trial. Perry testified in his own defense and had the

opportunity to testify that he acted in self-defense. Instead, he did not testify that he shot Mr.

Smith out of fear of imminent death or great bodily harm. In fact, he denied that he shot Mr.

Smith at all, testifying instead that “Brian” shot Mr. Smith. Moreover, Perry implied that the gun

he handled accidentally “started going off.” Accordingly, Perry’s own testimony gave rise to the

reasonable inference that Ms. Dickey’s death was accidental. Because a self-defense instruction

was not warranted, in large part due to Perry’s own testimony, defense counsel’s performance

was not deficient when he failed to request a self-defense instruction. Perry’s second assignment

of error is overruled.

                                                III.

       {¶32} Perry’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                13


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.


                                                     DONNA J. CARR
                                                     FOR THE COURT


DICKINSON, P. J.
BELFANCE, J.
CONCUR

APPEARANCES:

NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
