State v. O'Connor

• Decision Date: 25 May 1966
• Docket Number: No. 39119,39119
• Parties: , 35 O.O.2d 295 The STATE of Ohio, Appellee, v. O'CONNOR, Appellant.
• Court: Ohio Supreme Court

Page 169

6 Ohio St.2d 169

217 N.E.2d 685, 35 O.O.2d 295

The STATE of Ohio, Appellee, v. O'CONNOR, Appellant.

No. 39119.

Supreme Court of Ohio.

May 25, 1966.

Rehearing Denied June 15, 1966.

Syllabus by the Court

The Supreme Court may properly refuse to consider a claim of error that was not raised in any way in the trial court or in the Court of Appeals and was not considered or decided by the Court of Appeals. (Paragraph six of the syllabus of State v. Lynn, 5 Ohio St.2d 106, 214 N.E.2d 226, approved and followed.)

John P. O'Connor was convicted of larceny under Section 2907.20, Revised Code, in the Common Pleas Court of Lucas County on January 7, 1964. At his trial the court charged the jury as follows:

'The Constitution of Ohio provides that no person shall be compelled to be a witness against himself; but his failure to testify may be considered and may be the subject of comment by counsel.

'You may consider the failure of defendant to testify and you may attach to such failure whatever significance, if any, you believe reasonable under all the evidence.'

From a judgment of conviction, the defendant appealed to the Court of Appeals, alleging as error the introduction, over objection, of evidence obtained as a result of an unreasonable search and seizure.

The Court of Appeals affirmed the judgment of the Common Pleas Court.

On September 16, 1964, defendant appealed to this court. The only issue before this court at that time was whether certain evidence was illegally seized and, therefore, improperly admitted at defendant's trial.

This court overruled the defendant's motion for leave to appeal and dismissed the appeal on the ground that it presented no substantial constitutional question. State v. O'Connor, 177 Ohio St. 181. A motion for rehearing was denied.

On April 15, 1965, defendant appealed to the United States Supreme Court, basing his appeal only on this same search and seizure question.

On April 28, 1965, the United States Supreme Court decided Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, which held that a charge by the court and a comment by the prosecutor that the jury may consider the failure of a defendant to testify as to matters which he can reasonably be expected to deny or explain because of facts within his knowledge are a denial of the defendant's constitutional rights under the Fifth and Fourteenth Amendments to the United States Constitution.

On October 11, 1965, 382 U.S. 19, 86 S.Ct. 228, 15 L.Ed.2d 18, the Supreme Court of the United States dismissed the defendant's appeal. The court treated the appeal papers in this case as a petition for a writ of certiorari and denied certiorari.

However, on December 13, 1965, 382 U.S. 286, 86 S.Ct. 445, 15 L.Ed.2d 337, certiorari was granted on defendant's petition for rehearing, in which it was asserted, for the first time in this case, that he had been denied his constitutional rights under the Fifth and Fourteenth Amendments to the United States Constitution by reason of the judge's charge and the prosecutor's comment on his failure to testify.

The defendant had not raised this question at his trial or before any of the reviewing courts.

The United States Supreme Court vacated the judgment of this court and remanded the cause to this court for further consideration in the light of Griffin v. State of California, supra.

Harry Friberg, Pros. Atty., and Authony Pizza, Toledo, for appellee.

James W. Cowell and Raymond S. Metzger, Jr., Toledo, for appellant.

TAFT, Chief Justice.

Shortly after the decision in Griffin v. State of California, supra, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, this court admitted for review all cases where the prosecutor had commented or the trial judge had charged upon a criminal defendant's failure to testify. Surprisingly, there were only five such cases. Thereafter the Supreme Court of the United States remanded Howell v. Ohio (1965), 381 U.S. 275, 85 S.Ct. 1457, 14 L.Ed.2d 430, 'for further consideration in light of Griffin v. State of California.' This court promptly reversed the judgment in that case (State v. Howell (1965), 4 Ohio St.2d 11, 211 N.E.2d 56) and ordered the prosecutor in each of the five cases previously admitted for review to specify whether there was any reason for not reversing without further argument on the authority of the Griffin and Howell cases. Because no such reason was advanced, the judgments in two of those cases were summarily reversed. State v. Browning (1965), 38 Ohio Bar, No. 45, 1256; State v. Reed (1965), 38 Ohio Bar, No. 45, 1256. Subsequently, a defendant in a third case withdrew his appeal to this court. State v. Lynn (1966), 5 Ohio St.2d 106, 107, 214 N.E.2d 226. The judgment against another defendant (Illacqua) was reversed on authority of Griffin v. State of California, supra, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. State v. Lynn, supra, 5 Ohio St.2d 106, 214 N.E.2d 226. This court, with no dissent noted, refused to reverse the judgment against the fifth defendant (Conti) for the reason that the question, which is related to the question involved in and had no vitality whatever before Griffin v. State of California, supra, 380 U.S. 609, 85 S.Ct. 1229, was not raised by such defendant either at the trial or in the Court of Appeals. State v. Lynn, supra, 5 Ohio St.2d 106, 214 N.E.2d 226 (paragraph six of syllabus). A similar decision had been rendered in City of Toledo v. Reasonover (1965), 5 Ohio St.2d 22, 213 N.E.2d 179 where this court stated in paragraph two of its syllabus that 'the Supreme Court will not ordinarily consider a claim of error that was not raised in any way in the Court of Appeals and was not considered or decided by that court.' Lynn was decided by this court after and with knowledge of the remand of the instant case.

Because of the decisions of the United States Supreme Court in Griffin v. State of California, supra, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 and Howell v. Ohio, supra, 381 U.S. 275, 85 S.Ct. 1457, 14 L.Ed.2d 430, it is settled that, in a criminal case, a charge by the court and a comment by the prosecutor, that the jury may consider the failure of a defendant to testify as to matters which he can reasonably be expected to deny or explain because of facts within his knowledge, are a denial of the defendant's constitutional rights under the Fifth and Fourteenth Amendments to the United States Constitution. Tehan, Sheriff v. United States ex rel. Shott (1966), 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, determines that the law as declared in Griffin v. State of California, supra, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, is applicable to all cases that were still pending on direct review at the time that Griffin was announced.

This brings us to the only question involved in the instant case. That question may be stated as follows:

May the Supreme Court of Ohio properly refuse to consider a claim of error that was not raised in any way in the trial court or in the Court of Appeals and was not considered or decided by that court?

As hereinbefore stated, this court recently held that it may. City of Toledo v. Reasonover, supra, 5 Ohio St.2d 22, 213 N.E.2d 179, and State v. Lynn, supra, 5 Ohio St.2d 106, 214 N.E.2d 226. See also State v. Jones (1965), 4 Ohio St.2d 13, 211 N.E.2d 198, and State v. Davis (1964), 1 Ohio St.2d 28, 203 N.E.2d 357.

The holdings in the Reasonover and Lynn cases accord with similar holdings made by courts of last resort in other states in similar circumstances. People v. Friola (1962), 11 N.Y.2d 157, 227 N.Y.S.2d 423, 182 N.E.2d 100; People v. West (1963), 12 N.Y.2d 1090, 240 N.Y.S.2d 159, 190 N.E.2d 532; Shorey v. State, (1962), 227 Md. 385, 177 A.2d 245, certiorari denied, Shorey v. Warden, Md. Penitentiary, 371 U.S. 928, 83 S.Ct. 297, 9 L.Ed.2d 235.

Such holdings also accord with the rules of the Supreme Court of the United States which are based upon the constitutional (Section 2, Article III) and statutory (Section 1257, Title 28, U.S.Code) provisions defining and limiting the appellate jurisdiction of that court. For example, in Rule 23, subd. 1(f), of the Supreme Court, relative to petitions for certiorari, the petitioner is required to 'show that the federal question was timely and properly raised so as to give this court jurisdiction to review the judgment on writ of certiorari,' and Rule 16, subd. 1(b) provides that 'the court will receive a motion to dismiss an appeal from a state court on the ground * * * that the federal question sought to be reviewed was not timely or properly raised, or expressly passed on; or that the judgment rests on an adequate nonfederal basis.'

Those decisions further accord with the decisions of the Supreme Court of the United States. Thus, in footnote 9 of Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, it is stated:

'As is always the case, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected.'

Examples of the respect given to state procedural requirements such as those recognized by this court in the Reasonover and Lynn cases are found in Edelman v. People of State of California (1953), 344 U.S. 357, 73 S.Ct. 293, 97 L.Ed. 387; Brown v. Allen, Warden (1953), 344 U.S. 443, 486, 73 S.Ct. 397, 422, 97 L.Ed. 469, 504; Michel v. State of Louisiana (1955), 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83; Parker v. People of State of Illinois (1948), 333 U.S. 571, 68 S.Ct. 708, 92 L.Ed. 886; Baldwin v. State of Kansas (1889), 129 U.S. 52, 9 S.Ct. 193, 32 L.Ed. 640; Spies v. People of State of Illinois (1887), 123 U.S. 131, 181, 8 S.Ct. 21, 31, 31 L.Ed. 80, 91; Leeper v. State of Texas (1891), 139 U.S. 462, 11 S.Ct. 577, 35 L.Ed. 225; Duncan v. State of Missouri (1894), 152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485; and Hartford Life Ins. Co. v. Johnson (1919), 249 U.S. 490, 39 S.Ct. 336,...