State v. Lynn

• Decision Date: 09 February 1966
• Docket Number: No. 39368,39368
• Parties: , 34 O.O.2d 226 The STATE of Ohio, Appellee, v. LYNN; Conti et al., Appellants.
• Court: Ohio Supreme Court

Page 106

5 Ohio St.2d 106

214 N.E.2d 226, 34 O.O.2d 226

The STATE of Ohio, Appellee, v. LYNN; Conti et al., Appellants.

No. 39368.

Supreme Court of Ohio.

Feb. 9. 1966.

Syllabus by the Court

1. Comment by the trial court or by the prosecutor upon the failure of an accused to testify in a criminal proceeding against him violates the self-incrimination clause of the Fifth Amendment made applicable to the states by the Fourteenth Amendment. (United States Supreme Court in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.)

2. The doctrine of the Griffin case is applicable to cases pending on appeal at the time of its pronouncement. (United States Supreme Court in Linkletter v. Walker, Warden, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, construed.)

3. State procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected. (Footnote 9 to the majority opinion, United States Supreme Court, in Mapp v. Ohio, 367 U.S. 643, 659, 81 S.Ct. 1684, 6 L.Ed.2d 1081, followed.)

4. Where there are errors of commission in the charge of a court, not induced by the complaining party, a failure to object thereto does not constitute a waiver of the error, and such error may be relied upon in an appeal of such case. (Rosenberry et al., Admrs. v. Chumney, 171 Ohio St. 48, 168 N.E.2d 285, followed.)

5. Where a defendant in a criminal proceeding exercises his constitutional privilege of refusing to take the witness stand during the course of his trial, and the trial court comments upon this refusal in its charge to the jury, such comment constitutes prejudicial error as to such defendant, requiring a reversal of conviction where such defendant assigns this as error in the Court of Appeals.

6. Where a codefendant in a criminal proceeding exercises his constitutional privilege of refusing to take the witness stand during the course of his trial, and the prosecuting attorney comments upon this refusal, a codefendant who did testify cannot later contend that error was committed as to him, where such codefendant did not object to such comment at the trial and present his contention in the Court of Appeals.

In 1963, appellants, Jesse Lynn, James Conti and Joseph Illacqua, were tried jointly and found guilty of burglary, larceny and forcing entry into a safe at the Halle Brothers Company Shaker Square Store in Cleveland, Ohio. During the course of the trial, Lynn and Conti took the witness stand and testified on their own behalf. Illacqua did not choose to testify. In his closing argument to the jury, the prosecuting attorney commented on the failure of Illacqua to testify. No objection to the comment was ever made at the trial. In his charge to the jury, the trial judge also commented on the failure of Illacqua to testify. Again, no objection was made at the trial.

The Court of Appeals for Cuyahoga County affirmed the judgments of conviction.

The cause is before this court pursuant to the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., and George J. Moscarino, Cleveland, for appellee.

Marvin A. Koblentz, Cleveland, for appellants.

MATTHIAS, Judge.

Appellant Lynn Withdrew from the appeal in this court, and this opinion is, therefore, confined to the errors urged by the remaining appellants, who raise two fundamental questions. First, is the doctrine in Griffin v. State of California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, applicable to cases pending on appeal at the time of its pronouncement?

The second question is whether comment by the prosecuting attorney in relation to the failure of one of several joint defendants to testify in a criminal trial constitutes prejudicial error in relation to those defendants who did testify.

At the time of the trial in 1963, comment on the failure of an accused to testify in a criminal trial was permissible under the provisions of the Ohio Constitution and statutes. During the pendency of the appeal, the Supreme Court of the United States announced its decision in the Griffin case. The Griffin case held that such comment by the prosecuting attorney violated the self-incrimination provisions of the Fifth Amendment which was made applicable to the states by the Fourteenth Amendment.

We must first, therefore, determine whether the Griffin case is applicable to those cases pending on appeal at the time of its pronouncement.

In Pinch v. Maxwell, Warden (1965), 3 Ohio St.2d 212, 210 N.E.2d 883, this court held that the doctrine was not retrospective in relation to convictions which had become final. The decision in that case was approved by the United States Supreme Court in Tehan, Sheriff of Hamilton County, Ohio v. United States ex rel. Shott, Jr. (1966), 86 S.Ct. 459.

The present case does not require a retrospective application of Griffin. Retrospective application of a decision would require application of the new ruling to a conviction which had become final. The term, 'final conviction,' when used in relation to the doctrine of retrospective application of a judicial ruling means a conviction in which the accused has exhausted all his appellate remedies or as to which the time for appeal as of right has expired.

In other words, the application of a new rule of law to a pending appeal is not retrospective as that word is used in relation to the effect of a new decision on a pending case.

In this case, we are not concerned with a conviction which has become final prior to the adoption of the Griffin rule; the appeal from the original conviction was still pending at that time. We hold, therefore, that the Griffin rule is applicable to cases which were pending on appeal at the time of its announcements. See Fahy v. State of Connecticut (1963), 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171; Linkletter v. Walker, Warden (1965), 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; State v. Lanzo (1965), 44 N.J. 560, 120 A.2d 613.

However, footnote 9 to the majority opinion in Mapp v. Ohio (1961), 367 U.S. 643, 659, 81 S.Ct. 1684, 1693, 6 L.Ed.2d 1081, states: 'As is always the case * * * state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected.'

Ohio has long followed the general proposition of law that the method of review in a criminal case is an appeal on questions of law, that a record is required, and that the right of a court of review to reverse the judgment of a trial court in appellate proceedings on questions of law is predicated upon its finding error in the proceedings of such court.

Therefore, there exists a duty of vigilance on the part of appellant. Error must be made to appear affirmatively on the record by objection and ruling thereon. In short, one who complains of error must give the trial court a chance to avoid error Admrs. v. Chumney (1960), 171 Ohio St. error. The following general exception exists, nevertheless, that is dispositive in this case discloses that Illacqua preserved where there are errors of commission in the charge of a court, not induced by the complaining party, a failure to object thereto does not constitute a waiver of the error, and such error may be relied upon in an appeal of such case.' Rosenberry et al., Admrs. v. Chummey (1960), 171 Ohio St. 48, 50, 168 N.E.2d 285, 287. An examination of the briefs filed in the Court of Appeals in this case discloses thatIllacqua preserved this error in that cour...