State v. Stephens

• Decision Date: 10 November 1970
• Docket Number: No. 69-622,69-622
• Citation: 53 O.O.2d 182,263 N.E.2d 773,24 Ohio St.2d 76
• Parties: , 53 O.O.2d 182 The STATE of Ohio, Appellee, v. STEPHENS, Appellant.
• Court: Ohio Supreme Court

Page 76

24 Ohio St.2d 76

263 N.E.2d 773, 53 O.O.2d 182

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

No. 69-622.

Supreme Court of Ohio.

Nov. 10, 1970.

Syllabus by the Court

1. The privilege against self-incrimination guarantees to the individual the right to remain silent, unless he chooses to speak in the unfettered exercise of his will 'during a period of custodial interrogation as well as in the courts or during the course of other official investigation.' (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, followed.)

2. The right of silence of an accused, while singular in the constitutional grant, may be plural in application. That right, once invoked by an accused while under accusation, is not waived by reason of defendant testifying at the trial.

3. Where, during an in-custody interrogation, a defendant chooses to remain silent, it is prejudicial error for the prosecutor, during his final argument to the jury, to comment upon that silence or any implications which may be drawn therefrom.

4. In the trial of a criminal case, reference by the prosecutor in his final argument to the jury to defendant's previously asserted silence at any stage of the accusatorial process, or to implications drawn therefrom, is not permissible unless the record clearly demonstrates by the action or testimony of the defendant that he has waived the privilege against self-incrimination previously invoked.

Defendant was convicted on four counts for violation of R.C. 3719.17 for using a false name and a false and forged prescription in attempting to purchase cocaine HCL from two drug stores. The Court of Appeals affirmed the judgment of conviction.

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

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

James R. Willis, Cleveland, for appellant.

JOHNSON, Justice.

The principal error assigned arises out of statements made by the prosecutor in his final argument to the jury, which statements made direct reference to defendant's silence at the time of his arrest. This was done for the apparent purpose of implying defendant's guilty knowledge that the prescription was forged. Such statements appear in the bill of exceptions, as follows:

'Mr. Mayar (prosecutor): * * * Why did he not tell the police at the shopping center, 'Hey-'

'Mr. Willis (defense counsel): Objection to that type of argument, your Honor.

'The Court: Overruled.

'Mr. Mayar: 'Hey, look, this prescription that you found, this is a good one. This is a good prescription. I am getting it for a buddy.' Why didn't he tell the police?

'You see what goes into determining guilty knowledge. Do you see what goes into intent? Do you see how you arrive at whether or not the fellow knew?'

At the time of the objection to the statement complained of the jury was not instructed to disregard it, nor was the prosecutor instructed to discontinue this line of argument. Instead, after the objection had been overruled, the prosecutor continued with the same line of argument that defendant's silence constituted guilty knowledge.

At the conclusion of the general charge, defense counsel moved for a mistrial and his motion was denied.

The record does not disclose any questioning of the defendant relative to any statements made at the time of arrest. Defendant admitted uttering the prescription, claiming that he had done so at the behest of a friend who gave him the prescription and the money for payment.

Shortly after the second druggist refused to honor the prescription defendant was arrested. He made no statement after being taken into custody.

Defendant urges that the actions of the prosecutor in final argument to the jury are a violation of his constitutional right against self-incrimination, in that he had an absolute right to remain silent and that the prosecutor's reference to that silence, with its implication of guilt, was prejudicially erroneous.

In Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the Supreme Court of the United States held that comment to the jury by a prosecutor in a state criminal trial, upon defendant's failure to testify, violates the self-incrimination clause of the Fifth Amendment of the United States Constitution.

Thereafter in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, that court held, in paragraph 1(b) of the syllabus:

'The privilege against self-incrimination, which has had a long and expansive historical development, is the essential mainstay of our adversary system and guarantees to the individual the right to remain silent unless he chooses to speak in the unfettered exercise of his own will, during a period of custodial interrogation as well as in the courts or during the course of other official investigations.' (Emphasis added.)

This court held, in State v. Minamyer (1967), 12 Ohio St.2d 67, 232 N.E.2d 401, that in a criminal prosecution a prosecuting attorney could not 'testify as to or comment upon the refusal of the accused to testify before the grand jury.'

Obviously such action has a prejudicial effect, and to allow such comment would completely circumvent an accused's privilege against self-incrimination. As was said in Minamyer: 'It is the refusal to testify rather than the subject matter of the refusal which would impress the minds of the jurors.'

We reached a similar conclusion in State v. Davis (1967), 10 Ohio St.2d 136, 226 N.E.2d 736, as to comments of a prosecutor relative to the defendant's refusal to appear and testify at a preliminary hearing.

Here, we are concerned with another facet of the problem. The question might well be put: When a defendant testifies in his own behalf are the protections against self-incrimination waived? May the prosecutor then comment upon defendant's silence during any stage of the accusatorial process?

In the recent case of United States ex rel. Smith v. Brierly (1967), 3 Cir., 384 F.2d 992, a habeas corpus proceeding following defendant's conviction for felony murder, it was shown that Smith testified in his defense at trial. It was held that, during an in-custody interrogation, a shaking of the head and pursing of the lips by the defendant, in answer to a question directed to several accomplices, could not be testified to as a 'tacit admission' by an interrogating officer. The court said:

'We agree with the district court that the use of such an episode as an admission by the accused of a fact vital to the proof of a capital offense cannot be squared with the requirement of the Fourteenth Amendment that criminal procedure be fundamentally fair. We have pointed out that the episode occurred while the accused was in custody and under police interrogation on a capital charge. If his choice was to remain silent, he could not constitutionally be forced to speak.'

See, also, Galasso v. State (Fla.App. 1968), 207 So.2d 45.

In Vitali v. United States (1967), 383 F.2d 121, the United States Circuit Court of Appeals of the First Circuit held that a defendant who during interrogation speaks freely takes a calculated risk. In its opinion, at page 123, the court said:

'* * * A defendant cannot have it both ways. If he talks, what he says or omits is to be judged on its merits or demerits, and not on some artificial standard that only the part that helps him can be later referred to. This was not a case where the government commented upon failure to take the stand, or on a prior exercise of rights. The government asked the jury to measure what the defendant said when he had no rights because he had voluntarily waived them.' (Emphasis added.)

In Gillison v. United States (1968), 130 U.S.App.D.C. 215, 399 F.2d 586, the prosecutor, in cross-examination of the defendant, asked the defendant why he did not make a statement to the police at the time he was apprehended. Upon defendant's reply that he did not want to make any statement without the presence of an attorney, the prosecutor then remarked: 'And that's the action of an innocent man who went looking for a job.' The court held, citing Griffin v. California, supra, that 'the prosecution may not therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.'

In United States v. Brinson (1969), 6 Cir., 411 F.2d 1057, defendant appealed a conviction for transporting fraudulently obtained money in interstate commerce. The United States Attorney was permitted to inquire on cross-examination, in the presence of the jury, whether defendant had previously discussed his trial-asserted defense with any prosecuting agent or law enforcement officer. In finding that such interrogation was contrary to defendant's Fifth Amendment privilege, the court held that, even though defendant did not object to such cross-examination and failed to except to the closing arguments of the prosecution, it would consider the errors assigned if they were plain errors affecting a substantial constitutional right.

In United States v. Nolan (1969), 416 F.2d 588, defendant was convicted for unlawfully transporting a stolen vehicle in interstate commerce. Until Nolan testified he had made no exculpatory statement to the federal or state officers or agents. The Tenth Circuit Court of Appeals held that:

'United States' counsel's statements in closing argument that failure of defendant to make his exculpatory statements to officers when they arrested him for transporting in interstate commerce a stolen motor vehicle cast doubt on truth of the statements was error so plain, fundamental and...