State v. Wade, 31177
| Decision Date | 20 July 1972 |
| Docket Number | No. 31177,31177 |
| Citation | 31 Ohio App.2d 33,285 N.E.2d 898 |
| Parties | , 60 O.O.2d 138 The STATE of Ohio, Appellee, v. WADE, Appellant. |
| Court | Ohio Court of Appeals |
John T. Corrigan, Prosecuting Atty. for appellee.
James J. McMonagle, Cleveland, for appellant.
For easy reference the defendant-appellant in this case will be referred to as the 'appellant' and the state of Ohio as the 'State.'
Appellant was indicted on two counts of armed robbery and two counts of kidnapping. He was found guilty on all counts on April 26, 1971, and perfected his appeal assigning two errors:
(1) 'Refusal of Court to permit defendant's counsel to cross-examine on a previous inconsistent statement constitutes prejudicial error.
(2) 'The Trial Court's refusal to charge the failure of appellant Wade to testify could not be used as evidence of guilt violated his rights to silence under the Fifth and Fourteenth Amendments to the United States Constitution.'
We have examined the claimed prior inconsistent statement made at a pre-trial hearing on identification issues and find that there was no inconsistency between the statement made at that hearing and the testimony of the same witness on trial. The first assignment of error is, therefore, without merit.
The issue in the second assignment of error was saved by counsel for the appellant when at the end of the court's charge he made a request 'that the court instruct the jury that the defendant has a constitutional right not to take the witness stand.' This request was refused. In our view the refusal was error prejudicial to the rights of the appellant.
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 issued, 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.
Few principles are better settled in law than this-it is the duty of the trial judge in a jury case to correctly charge on the law. R.C. 2945.11, cf. State v. Barron (1960), 170 Ohio St. 267, 270, 164 N.E.2d 409, where it said that 'correct and pertinent' requests to charge must be included in the general charge 'at least in substance' despite the fact that a request to charge before argument was not mandatory in a criminal case. And, it has been held that when an instruction on constitutional silence is requested, the trial court must, under its obligation to correctly charge on the law, say no more than this:
'Article I of the Constitution of the state of Ohio, Section 10 (in relevant part) reads as follows: 'No person shall be compelled, in any criminal case, to be a witness against himself.' Revised Code 1945.43 (in relevant part) provides: 'on the trial of a criminal cause a person charged with an offense may, at his own request be a witness, but not otherwise. " 1 (Bracketed material added.)
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State v. Nelson
...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 def......
- State v. McCrory