State v. Day

I concur in the judgment overruling appellant's assignments of error and affirming the judgment of conviction and sentence entered by the court below, but write separately in that I disagree with the rationale utilized by the principal opinion in overruling appellant's fourth assignment of error.

Appellant's fourth assignment of error asserts that the trial court erred by not declaring a mistrial and/or ordering a new trial on the basis of prosecutorial misconduct. During closing argument, appellee's counsel emphasized that appellant had waited nineteen months from the time of his May 22, 1988 escape until the December 1989 jury trial to tell his story about two corrections officers assisting him during the escape. The principal opinion would hold that this was error, but that such error was waived because "from our review of the record, we do not find an objection."

However, it is apparent from reviewing the record that the following exchange occurred at page 691 of the transcript, a page explicitly designated in appellant's brief:

"MR. BENSON: For the record, I didn't interrupt Mr. Ward, but I * * * do object to his comment on Day's failure to speak further. I feel it's an unfair comment by the prosecution on Day exercising his Fifth Amendment Right not to testify or speak against himself.

"MR. WARD: I thought he took the stand and testified, Your Honor. I'm sorry.

"JUDGE: We note your objection for the record, Mr. Benson. We overrule it and we note your exceptions to our ruling."

Accordingly, the principal opinion is incorrect in stating that appellant waived his argument on appeal by failing to object below. Indeed, appellee does not assert to the contrary. Consequently, we must address the merits of appellant's contentions regarding prosecutorial misconduct.

The test regarding prosecutorial misconduct in closing argument is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. State v. Smith (1984), 14 Ohio St. 3d 13, 14, 14 OBR 317, 318, 470 N.E.2d 883, 885. It is improper to allude to matters which are irrelevant to the case at bar or that are not supported by admissible evidence. Id.; see, also, DR 7-106(C)(4).

Where a defendant maintains silence after receivingMiranda warnings, the holding in Doyle v. Ohio (1976),426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91, prohibits the prosecution from using that absence of speech for impeachment purposes in cross-examination or in closing argument. See, e.g., State v.Sabbah (1982), 13 Ohio App. 3d 124, 13 OBR 155, 468 N.E.2d 718. The Doyle holding rests on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial. Greer v. Miller (1987),483 U.S. 756, 763, 107 S. Ct. 3102, 3107, 97 L. Ed. 2d 618, 628; Wainwrightv. Greenfield (1986), 474 U.S. 284, 291, 106 S. Ct. 634, 638,88 L. Ed. 2d 623, 630. Conversely, in the absence of the sort of affirmative assurances embodied in the Miranda warnings, it is not violative of constitutional due process of law to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. Fletcher v. Weir (1982), 455 U.S. 603,607, 102 S. Ct. 1309, 1312, 71 L. Ed. 2d 490, 494; Greer, supra,483 U.S. at 763, 107 S.Ct. at 3108, 97 L.Ed.2d at 629.

In the case at bar, appellee contends that Fletcher controls because "[t]here is no evidence in the record that this Appellant ever received his Miranda warnings" and "[t]here is no evidence in the trial record that this Appellant was ever interrogated by any law enforcement officers." In Fletcher, supra, 455 U.S. at 605,102 S.Ct. at 1311, 71 L.Ed.2d at 493, the United States Supreme Court emphasized that the record did not indicate that the defendant received any Miranda warnings during the period in which he remained silent immediately after his arrest. The record in the instant case, contrary to appellee's assertions on appeal, includes appellee's March 14, 1989 answer to appellant's demand for discovery and clearly indicates that appellant receivedMiranda warnings on both May 27, 1988 and January 19, 1989. Moreover, appellant's pretrial statements indicated that he at that time contended that correctional institution employees had been involved in his escape.

Based upon the foregoing, appellee's counsel's statements in closing argument that appellant had waited until trial to advise anybody that correctional employees had assisted him during his escape were both factually inaccurate and, since appellant was Mirandized, violative of appellant's constitutional right to due process of law under Fletcher and Doyle, supra. Normally, Doyle violations are considered to be prejudicial per se and are not subject to a harmless error analysis. State v. Rogers (1987),32 Ohio St. 3d 70, 73, 512 N.E.2d 581, 584. However, in this context, such an analysis is warranted.

In order to be deemed nonprejudicial, error of constitutional dimension must be harmless beyond a reasonable doubt. State v.Williams (1983), 6 Ohio St. 3d 281, 6 OBR 345, 452 N.E.2d 1323, paragraph three of the syllabus. Appellee's counsel's statements were directed to appellant's argument that he was not guilty of kidnapping the two corrections officers because they had helped plan his escape. However, appellant was not convicted of either of the kidnapping charges. Moreover, appellant's counsel during closing argument noted as follows:

"You heard the testimony of Mr. Day. Mr. Day admits to you that he was under detention. Without permission he left the grounds at R.C.I. He admits to you that he had a loaded weapon; that he was under disability. Mr. Day denies that he kidnapped either McCorkle or Warnock."

Appellant was convicted only of escape, abduction, carrying a concealed weapon, and having weapons under disability. Appellant's own testimony essentially admitted the crimes of escape, carrying a concealed weapon, and having weapons under disability. With respect to the abduction charge, RCI Officer Duane R. Delaney testified, as appellant's witness, that appellant pointed a gun at him, told him to remove his clothes, and told him after he was handcuffed not to make a sound or appellant would kill him. Appellant testified that he had a loaded gun in his hand when Officer Delaney was forced to remove his uniform and further admitted that he threatened Officer Delaney after he was handcuffed. I am persuaded that this uncontroverted evidence of abduction, in violation of R.C.2905.02(A)(2), and under the limited circumstances of this case, rendered the trial court error in failing to sustain appellant's objection to appellee's counsel's improper closing argument harmless beyond a reasonable doubt. Hence, I concur in the judgment of affirmance.