State v. Nelson, 73-69

• Citation: 36 Ohio St.2d 79,303 N.E.2d 865
• Decision Date: 21 November 1973
• Docket Number: No. 73-69,73-69
• Parties: , 65 O.O.2d 222 The STATE of Ohio, Appellee, v. NELSON, Appellant.
• Court: United States State Supreme Court of Ohio

Page 79

36 Ohio St.2d 79

303 N.E.2d 865, 65 O.O.2d 222

The STATE of Ohio, Appellee, v. NELSON, Appellant.

No. 73-69.

Supreme Court of Ohio.

Nov. 21, 1973.

Syllabus by the Court

1. In a criminal case, it is not mandatory upon a trial court to give requested instructions to the jury verbatim, but if the requested instructions contain a correct, pertinent statement of the law and are appropriate to the facts they must be included, at least in substance, in the court's charge to the jury. (State v. Barron, 170 Ohio St. 267, 164 N.E.2d 409, and Cincinnati v. Epperson, 20 Ohio St.2d 59, 253 N.E.2d 785, followed.)

2. There is no provision in the Constitution of Ohio or in the Ohio Revised Code which entitles a defendant in a criminal case to have the jury instructed that his failure to testify must not be considered for any purpose.

3. In a criminal case, it is discretionary with the trial court whether to charge on the defendant's right to elect not to testify.

David Lee Nelson, appellant herein, was indicted by the grand jury of Hamilton County on a single count of armed robbery on December 7, 1971. He entered a plea of not guilty, and, on June 8, 1972, a jury was impaneled and the cause tried. The testimony of the prosecuting witness was properly submitted to the jury by way of deposition, since he was no longer a resident of the state. Appellant elected not to testify, and, during the course of the prosecutor's closing argument, the following statement was made:

'* * * Mr. Perry (defense counsel) says, 'We don't have a boot.' Certainly we don't have a boot. There is only one person in this courtroom today who knows where the boots are, and he is sitting there in the red shirt (indicating defendant seated at counsel table). Mr. Perry (defense counsel) says that we don't have a gun. Again, there is only one man in the courtroom who knows where the gun is, and he is sitting there in the red shirt (indicating defendant seated at counsel table).'

At the close of the court's charge, defense counsel conferred with the court, out of the hearing of the jury and off the record. After the jury left the courtroom to begin their deliberations, the following colloquy took place:

'The Court: Mr. Perry asked the court to charge on the question of the fact that the defendant had not denied by taking the stand and refuting an argument which Mr. Shea made in his closing argument, namely that only the defendant could tell where the gun was or the shoes were.' (Emphasis added.)

'I believe I am quoting you correctly, Mr. Perry.

'Mr. Perry: Yes, your Honor.

'The Court: You thought that I should instruct the jury in reference to the fact that the defendant had not taken the stand, and I specifically denied that request, saying that this court would be in error if it made any comment on the fact that defendant had not taken the stand.

'You may have an exception to my rulings, Mr. Perry.

Mr. Perry: The charge that we asked the court to give is as follows: 'It is not necessary that the defendant take the witness stand in his own defense. In fact, he has a constitutional right not to testify. That being the case, the fact that he did not testify must not be considered for any purpose.'

'The Court: I feel that I would be in error to make any comment whatsoever with reference to the defendant not taking the stand.

'You may have an exception to my ruling, Mr. Perry * * *.'

The Jury returned a verdict of guilty. The judgment of conviction was affirmed by the Court of Appeals. The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Simon L. Leis, Jr., Pros. Atty., and Leonard Kirschner, Cincinnati, for appellee.

James N. Perry, Cincinnati, for appellant.

CELEBREZZE, Justice.

This case brings to the court's attention for determination the question of under what circumstances the trial court shall charge on the right of a defendant to remain silent. ¹ Appellant argues that the case of State v. Wade (1972), 31 Ohio App.2d 33, 285 N.E.2d 898, stands for the proposition that, upon request, the trial court must charge that it is not an evidence of guilt when the defendant maintains his silence. The following language from State v. Wade, supra, at page 34, 285 N.E.2d at 899 is pertinent:

'There can be no doubt at this stage of our constitutional development that it is contrary to law for a trial judge to instruct the jury in a criminal case that the defendant's failure to testify is evidence of guilt, Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, and its progeny.

'However, a more narrow issue, grounded on the Griffin principle, is presented in this case. That issue is whether the court must charge, upon request, that it is not an evidence of guilt when a defendant maintains his silence.'

The hallmark of the Griffin decision was that it, in effect, held unconstitutional a provision in the Constitution of the state of California (similar to the provision in Section 10, Article I of the Ohio Constitution) permitting comment by the prosecutor and instructions by the court that the silence of an accused is evidence of guilt. Mr. Justice Douglas was quick to distinguish his ruling from the case of Bruno v. United States (1939), 308 U.S. 287, 292, 60 S.Ct. 198, 200, 84 L.Ed. 257, wherein it was held that, by Act of Congress, March 16, 1878, 20 Stat. 30, now Section 632, Title 28, U.S.Code, the accused could "* * * at his own request but not otherwise be a competent witness. And his failure to make such a request shall not creat any presumption against him." At the end of Mr. Justice Douglas' opinion he penned the following footnote:

'We reserve decision on whether an accused can require as in Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257, that the jury be instructed that his silence must be disregarded.'

Counsel for appellant also alludes to the case of State v. Bentley (App., Madison County), decided March 30, 1973, unreported. Counsel categorically states that the Court of Appeals for Madison County '* * * has approved the charge.' It should be pointed out that trial court in the Bentley case did not give the charge, and, although the reviewing court believed that the request should have been complied with, it did not reverse the trial court.

In fact, the Court of Appeals in the Bentley case stated: '* * * We doubt whether, when it is requested, it is prejudicial error not to give it in all cases and all circumstances. * * *'

It may thus be concluded that, since the United States Constitution is devoid of a provision that the failure of an accused to testify must be disregarded, as of this date, the basis for a mandatory charge of this nature is solely a federal law applicable to federal courts only. Neither the Ohio Constitution nor the Ohio Revised Code sets forth language akin to that enacted by Congress. The closest these two documents approach the federal statute is as follows:

Section 10, Article I of the Ohio Constitution, reads, in part:

'* * * No person shall be compelled, in any criminal case, to be a witness against himself * * *.'

The first sentence of R.C. 2945.43 reads:

'On the trial of a criminal cause, a person charged with an offense may, at his own request, be a witness, but not otherwise.'

It is universally accepted that those constitutional and statutory provisions, which are almost synonymous, that follow both of the above quotes have been banished by Griffin v. California, supra.

It is appellee's position that the decision of the Court of Appeals follows closely the case of State v. Perod (1968), 15 Ohio App.2d 115, 239 N.E.2d 100. That case involved the trial of two defendants, one of whom took the witness stand and one who did not. The following instruction to the jury was submitted to the court:

'The failure of any defendant to take the witness stand and testify in his own behalf does not create any presumption against him; the jury is charged that it must not permit the fact to weigh in the slightest degree against any such defendant, nor should this fact enter into the discussions or deliberations of the jury in any manner.'

The trial court rejected the charge and the reviewing court affirmed, stating:

'There is no such provision in the Ohio statutes or the Constitution of Ohio, and we find no provision in the United States Constitution, which entitles a defendant in a state criminal trial to have the jury instructed that his failure to testify does not create any presumption against him.'

The Court of...