State v. Shaker
| Decision Date | 10 April 1980 |
| Citation | 427 N.E.2d 537,22 O.O.3d 165,68 Ohio App.2d 135 |
| Parties | , 22 O.O.3d 165 The STATE of Ohio, Appellant, v. SHAKER, Appellee. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
An opening statement by the state in a criminal case as provided in R.C. 2945.10(A) is discretionary and not mandatory, and may be waived. It is error for the trial court to discharge a defendant in a criminal case because the state did not make an opening statement.
Jose Feliciano, Cleveland, for appellant.
Elmer A. Giuliani, Cleveland, for appellee.
On April 27, 1979, a complaint was filed in the Cleveland Municipal Court against the defendant-appellee, Fuad Shaker, hereinafter referred to as appellee, by Cleveland Police Officer James Lynsky. Appellee was charged with operating a gambling house, contrary to the provisions of R.C. 2915.03.
Appellee pled not guilty and the case came to trial before the court without a jury on June 7, 1979. The Municipal Court judge swore in the witnesses. Then, the judge invited the prosecutor to make an opening statement. The prosecutor stated that she waived an opening statement. The court invited appellee's counsel to make an opening statement. Instead, appellee's counsel moved for a "directed verdict" (actually, a motion to dismiss) on the ground that it was mandatory for the prosecutor to make an opening statement. At that point, the prosecutor indicated that she would make an opening statement. Appellee's counsel objected saying that once the state had waived making an opening statement, it was precluded from making an opening statement. Appellee's counsel further argued that appellee had to be discharged.
The court requested that the parties prepare briefs on the issue. On June 21, 1979, the parties' attorneys argued the issue before the court. The court stated as follows:
The state, appellant herein, filed a motion for leave to appeal this decision. This court granted the state's motion. The state asserts the following assignment of error for our consideration:
"The trial court erred in granting defendant's motion to dismiss because the prosecution waived opening statement."
The state argues that the trial court erred in granting appellee's motion to dismiss because R.C. 2945.10 is discretionary, not mandatory; waiver of an opening statement by the prosecution does not give rise to a directed verdict; and the prosecution waived its right to make an opening statement, rather than its duty. We shall examine these contentions.
R.C. 2945.10 provides, in relevant part, as follows:
R.C. 2901.04 states as follows:
Construing R.C. 2945.10 "so as to effect the fair, impartial, speedy, and sure administration of justice," R.C. 2901.04(B), we conclude that R.C. 2945.10 was not intended to impose a duty upon the prosecutor to make an opening statement in every case, but was merely intended to provide a required order of proceedings at a trial.
The language in R.C. 2945.10(A) which supposedly creates a mandatory duty for the prosecutor to always present an opening statement is that "(c)ounsel for the state must first state the case for the prosecution * * *." R.C. 2945.10(B) provides further, in similar language, that "(t)he defendant or his counsel must then state his defense * * *." Further, R.C. 2945.10(C) states that "(t)he state must first produce its evidence and the defendant shall then produce his evidence." All of this language apparently creates mandatory duties for the state and the defendant. Of course, imposing a mandatory duty upon a defendant to always state a defense and produce evidence would raise serious constitutional and statutory problems. Such an interpretation of R.C. 2945.10 would conflict with the state's traditional burden of going forward and proving a defendant guilty beyond a reasonable doubt. R.C. 2901.05(A); In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. 1
The legislature could not have intended to create such a conflict. Therefore, the language in R.C. 2945.10(B) which states that "defendant or his counsel must then state his defense" must mean that if a defendant chooses to make an opening statement of his defense, he must do so at that point in the proceedings, unless the court chooses to deviate from the order of proceedings listed in the statute. Similarly, the use of the same language in R.C. 2945.10(A) must mean that if the prosecutor chooses to make an opening statement, he must do so before the defendant makes his opening statement. R.C. 2945.10(C) must mean that the state must produce its evidence first. If the defendant chooses to present evidence, he will do so after the state's production of evidence. That R.C. 2945.10(A), R.C. 2945.10(B), and R.C. 2945.10(C) merely refer to order of presentation is further indicated by the section of the statute stating that "(t)he court may deviate from the order of proceedings * * *." If R.C. 2945.10(A) somehow creates a requirement that the state must make an opening statement, such a requirement is utterly inconsistent with permitting the court latitude to deviate from the order of proceedings listed in the statute.
Appellee argues that the prosecutor's opening statement is required because it provides necessary notice to him and to the court of the state's claim against him. Further, appellee argues that this statement is necessary in that it provides notice of the contemplated course of prosecution so as to enable the defendant to meet the charges against him. First, there is ample notice of the charges against a defendant by virtue of the complaint or indictment filed against the defendant by the state. A defendant has significant discovery rights under Crim.R. 16 to enable him to obtain necessary evidence to properly prepare a defense. R.C. 2945.10(A) does not require the state prosecutor to state any evidence by which he expects to sustain his case against a defendant. Therefore, appellee was not prejudiced by the prosecutor's failure to make an opening statement.
Of course, the above reasoning then dictates that the waiver of an opening statement by the prosecution would not justify the granting of a motion to dismiss in favor of the defendant. Thus, the prosecution in the instant case merely waived its right to make such a statement. It did not have a mandatory duty to make an opening statement. 2 For the above reasons, the trial court erred in granting appellee's motion to discharge, and the state's assignment of error is well taken. The judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion. 3
Judgment reversed and cause remanded.
1 We note that R.C. 2901.05(A) does impose a burden upon a defendant to go forward with evidence of an affirmative defense and to prove an affirmative defense by a preponderance of the evidence. This, however, is quite different from imposing a burden upon every defendant to state a defense,...
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