State v. Sabbah
| Decision Date | 19 November 1982 |
| Citation | 468 N.E.2d 718,13 Ohio App.3d 124 |
| Parties | , 13 O.B.R. 155 The STATE of Ohio, Appellee, v. SABBAH, Appellant. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. The rule of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, prohibits the prosecution from using for impeachment purposes and in summation a defendant's silence maintained after his receipt of the Miranda warnings. Cross-examination into and comment upon a defendant's post-Miranda warning silence abridges the guarantees afforded him under the Fourteenth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution.
2. The admissibility of a defendant's pre-arrest silence for impeachment purposes is a question for Ohio evidentiary rules under Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86. Where a defendant is apprehended less than an hour after the occurrence of the offense for which he is arrested, impeachment by reference to pre-arrest silence is substantially more prejudicial than probative of credibility or recent fabrication and therefore, must be excluded under Evid.R. 403(A). However, where there has been a substantial period of pre-arrest silence, then impeachment by reference to such silence is permissible if it is prefaced by a proper showing that, under the circumstances, it was natural and reasonable to expect the defendant to come forward with an exculpatory communication to the police.
3. An indictment signed by the assistant prosecuting attorney, rather than by the county prosecutor, is not invalid if it can reasonably be said that the assistant prosecutor's signature carries the imprimatur of the county prosecutor. The mere absence of the latter's signature on the indictment does not violate a defendant's constitutional rights under Section 10, Article I of the Ohio Constitution or otherwise infringe upon his substantial rights on the merits.
4. When a jury explicitly indicates through a message to the trial court that, after substantial deliberations, it is evenly deadlocked, that it lacks sufficient evidence upon which to base a verdict and that any verdict it returns will not be a fair one, the court must, sua sponte, declare a mistrial and discharge the jurors. Even in the absence of those circumstances so requiring the court to declare a mistrial, when the jury indicates through a message to the trial court that, after substantial deliberations, its members are having difficulty agreeing upon a verdict, the court should deliver a neutral supplementary instruction which emphasizes, in part, the duty of jurors to make every reasonable effort to agree, if they can do so without disturbing their individual judgments or surrendering honest conviction. Standing alone, an unguarded statement by the court to the effect that "this jury can reach a verdict if any jury can," under the circumstances, prejudicially exacerbates the potential for coercion of the jury.
Ronald J. Mayle, Pros. Atty., for appellee.
Dennis P. Levin, Beachwood, for appellant.
This case is before the court on appeal from the Sandusky County Court of Common Pleas, wherein appellant was convicted and sentenced for violating R.C. 2903.02 (murder).
The undisputed facts precipitating this appeal may be summarized as follows. On the afternoon of January 24, 1982, appellant shot and killed Edward Lee Williams. The shooting occurred in Fremont, Ohio, outside the home of Charles Stark, a friend of appellant. Shortly after the shooting, at approximately 3:30 p.m., appellant was stopped and arrested by Perkins Township police as he drove toward Sandusky on State Route 6. Township officers then read appellant the Miranda warnings. He indicated to the officers that he did not wish to speak, and he refused to sign a written police form waiving his rights.
Sometime later, two Fremont police officers arrived at the Perkins Township Police Department and transported appellant back to Fremont. During the thirty-minute ride, appellant made no statements to the police officers. Once at the Fremont Police Station, appellant was given the Miranda warnings a second time by a Fremont detective. Appellant again indicated to the officers present that he did not wish to speak with them until he had consulted an attorney.
On January 26, 1982, the Sandusky County Grand Jury returned an indictment against appellant charging him with murder. A jury trial commenced on April 21, 1982. At trial, the prosecution presented evidence tending to show that appellant had a motive to kill Edward Lee Williams because of an earlier altercation between the two men in which appellant claimed Williams stole forty dollars from him. On the day of the shooting, both Williams and appellant, as well as several other people, had been present at the Stark residence watching the NFL Super Bowl game. The prosecution's theory alleged that after Williams left for a brief time to go to a nearby carry-out store, appellant waited outside the Stark residence to ambush him when he returned.
Appellant took the stand and testified to an exculpatory version of the shooting. He maintained that he shot Williams in self-defense. Appellant claimed that during the earlier altercation involving the forty dollars, Williams had brandished a handgun and threatened him. He also testified that subsequent to that incident, Williams proceeded publicly to make threats on his life. Appellant stated that he was leaving the Stark residence on January 24 to go home when Williams returned from the store and accosted him with what appeared to be a handgun. He maintained that he shot Williams in self-defense, believing that Williams was about to kill him. Appellant further testified that, after the shooting, he drove to Sandusky intending to tell his mother what had happened and that he was then going to call the police.
On cross-examination, the prosecutor challenged appellant's exculpatory account of the shooting. Over timely objection by defense counsel, the prosecutor was permitted to ask appellant why, after his arrest, he failed to tell the police his self-defense story. In his closing argument to the jury, the prosecutor, over objection, was permitted to argue the significance of appellant's failure to inform the police that he shot Williams in self-defense and that Williams had been carrying a gun.
At 5:45 p.m. on April 23, the jury retired to the jury room to begin its deliberations. At 6:30 p.m., the jury sent the court a note in which it requested a copy of the court's instructions on self-defense. The court re-read those instructions and the jury returned to its deliberations. Approximately three hours later, the court received a second, very detailed note from the jury. The court instructed the jury to continue its deliberations with a view toward reaching a verdict. At approximately 11:00 p.m., the jury returned a unanimous verdict of guilty. On May 3, 1982, appellant was sentenced to a term of imprisonment. From the judgment of the trial court, appellant now appeals.
In bringing this appeal, appellant presents six assignments of error for review, the first three of which are:
Trial testimony relevant to the disposition of appellant's first two assignments of error is set forth below.
After testifying that he shot Williams in self-defense, appellant's direct examination continued as follows:
On cross-examination, the prosecutor attempted to impeach appellant's credibility as follows:
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... ... prefaced by a proper showing that, under the circumstances, ... it was natural and reasonable to expect that the defendant ... would come forward with an exculpatory communication to law ... enforcement officers ... In ... State v. Sabbah (1982), 13 Ohio App.3d 124, 136-137, ... 468 N.E.2d 718, 731, the court wrote in pertinent part: ... "In determining when pre-arrest silence is more ... probative that prejudicial, the court must look to factors ... such as the duration of length of time elapsing between a ... ...
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State v. William J. Bradley
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State v. Mark A. Brown
...were required to inform the jury of its right not to decide the penalty recommendations. Appellant's reliance on these cases is misplaced. In Sabbah, the jury indicated that it was deadlocked and lacked sufficient evidence to reach a verdict and that any verdict it reached would be unfair. ......
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