State v. Laskey

257 N.E.2d 65, 21 Ohio St. 2d 187, 50 Ohio Op. 2d 432, 1970 Ohio LEXIS 454

• Court: Ohio Supreme Court
• Decided: March 18, 1970
• Docket: No. 68-185
• Status: Published

Opinions

Per Curiam.

The appellant raises 28 assignments of error.

The eighth assignment of error is that the trial court overruled four defense motions for discovery, and thereby denied appellant due process and equal protection as guaranteed by the Fourteenth Amendment to the Constitution of the United States. Appellant made motions for inspection of physical evidence, for production of grand jury minutes and transcripts, for production of names and addresses of all witnesses who had testified before the grand jury and for production of a list of all witnesses expected to testify at the trial.

The trial court denied all these motions on the authority of State v. Rhoads (1910), 81 Ohio St. 397, 91 N. E. 186.

In denying the motion for the production of the grand jury transcripts, the trial court specifically relied upon the second paragraph of the syllabus of Bhoads, which provides:

“A person charged with crime is not entitled, before, or at the time of trial, to the minutes of the evidence taken before the grand jury, on which the indictment was found against him, nor to an inspection of a transcript of such evidence # *

While paragraph three of the syllabus of State v. White (1968), 15 Ohio St. 2d 146, 239 N. E. 2d 65, overrules paragraph one of the syllabus of Rhoads, appellant argues that the second paragraph of the syllabus of Rhoads is effectively overruled by the fourth paragraph of the syllabus of White, which states:

“In a criminal case, the defendant has a right to an in camera inspection by the trial court, with counsel for the state and the defendant, to determine the existence of inconsistencies between the testimony of the prosecution’s witnesses and their prior statements.”

The rule announced in the fourth and fifth paragraphs of the syllabus of White is not applicable to appellant’s pre-trial motion for production of the grand jury transcript. The White rule contemplates a limited investigation for the purpose of determining whether inconsistencies exist between a witness’ prior statements and his testimony at trial. Such investigation can be made only after the witness testified at trial, and, generally, can not be used by an accused for ascertaining the evidence of the prosecution for the purpose of trial preparation. It is a discovery device only for the purposes of impeachment upon cross-examination.

In this case, appellant sought discovery of the grand jury transcript before trial for purposes of preparation. Generally, proceedings before a grand jury are secret and an accused is not entitled to inspect grand jury minutes before trial for the purpose of preparation or for purposes of discovery in general. This rule is relaxed only when the ends of justice require it, such as when the defense shows that a particularized need exists for the minutes which outweighs the policy of secrecy. Pittsburgh Plate Glass Co. v. United States (1959), 360 U. S. 395, 400, 3 L. Ed. 2d 1323, rehearing denied, 361 U. S. 855, 4 L. Ed. 2d 94. See 1 Antieau, Modern Constitutional Law, 300; 20 A. L. R. 3d 7, 19.

It is also well settled that the allowance or overruling of various discovery motions in a criminal case rests within the sound discretion of the trial court, and only in cases of clear abuse will that discretion be disturbed upon review. See, for example, State v. Hill (1967), 12 Ohio St. 2d 88, 232 N. E. 2d 394. Thus, with respect to appellant’s arguments concerning the overruling of the other discovery motions, we find no prejudicial error.

Defendant’s eleventh assignment of error is that the trial court improperly admitted evidence of a similar offense pursuant to Section 2945.59, Revised Code. It is appellant’s contention that the offense was not similar and that the admission of this testimony constitutes reversible error.

While evidence should be admitted with infinite caution pursuant to Section 2945.59, Revised Code (Cf. State v. Hector (1969), 19 Ohio St. 2d 167, 249 N. E. 2d 912), under the state of the instant record, if any error was committed under this assignment, it was not prejudicial to the rights of the appellant. See Section 2945.83(C), Revised Code. Cf. State v. Witsel (1944), 144 Ohio St. 190, 58 N. E. 2d 212; Chapman v. California (1967), 386 U. S. 18, 17 L. Ed. 2d 705.

The sixteenth assignment of error is that the trial court erred in overruling appellant’s objection to the following questions, asked by the prosecutor after the appellant had testified, on direct examination, as to his defense of alibi:

“Q. Mr. Rueger: Laskey, had you ever told the police where you were on August 14th — 13th and 14th, 1966?

“Mr. Signer: Objection.

“The Court: I think you could ask him a direct question, if you wish. If he made any statements, you can ask him concerning any statements he made.

“Q. Did you make any statements to the police concerning where you were on August the 13th and 14th, 1966?

“Mr. Signer: Objection.

“The Court: Yes, I think you should ask him a direct question, Mr. Prosecutor, if you wish, if he made any statement concerning his presence.

“Mr. Rueger: Your Honor, I thought that was the question I asked. Would you re-read the question, Mr. Reporter?

“The Court: It’s too general, Mr. Prosecutor. You can ask about specific statements he made to the police that would be contradictory to what he is saying here. You have the privilege of doing that.

“Q. I am asking him, did you tell the police that you were home and at the Soul Lounge on August 13th and 14th of 1966?

“Mr. Signer: Objection.

“The Court: Overruled.

“A. No, sir, I did not.

“Mr. Rueger: No further questions.”

Appellant argues that this line of questioning violates his Fifth-Amendment privilege against self-incrimination in that he is being penalized for standing mute. The appellant argues that under Miranda v. Arizona (1966), 384 U. S. 436, 16 L. Ed. 2d 694, he is under no compulsion to speak. Footnote number 37 in Miranda states:

“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”

Although it is tempting to characterize the language quoted above as dicta, we feel that there are more compelling reasons why appellant’s assignment of error is without merit.

Even if the language of the footnote is taken in its most favorable light, it is obvious that what is contemplated by the United States Supreme Court is comment, not cross-examination, by the prosecutor on the fact that the accused stood mute in the face of the accusation. If the appellant had not taken the witness stand in this case, the prosecutor would have been prohibited from commenting on that fact. Griffin v. California (1965), 380 U. S. 609, 14 L. Ed. 2d 106. Moreover, under the rationale of the Griffin and Miranda decisions, it is logical to assume that if the accused had not taken the witness stand, the prosecutor would also be prohibited from commenting on the fact that, prior to trial while in police custody, the accused stood silent in the face of accusation.

In the case at bar, appellant is objecting to the fact that his silence was considered by the trial court to be a proper subject for cross-examination. The record indicates that the prosecutor never commented upon this fact. Moreover, the appellant voluntarily took the witness stand, thereby making himself available for cross-examination. While various forms of comment are prohibited by the Griffin and Miranda decisions, nothing in those cases forbids cross-examination once the accused has taken the stand. As Wigmore states:

“The case of an accused in a criminal trial who voluntarily takes the stand is a special case. Here the privilege has been construed to protect him from being required to answer even a single question * * *. His voluntary offer of testimony upon any fact is a waiver as to all other relevant facts because of the necessary connection between all. Any voluntary disclosure by the accused, except in the most unlikely situation, distorts the probative picture. The application of a rule of waiver to an accused, it should be noted, is at least as fair as its application to an ordinary witness. The accused has the choice at the outset, unhurried and with full knowledge that all questions will relate to his incrimination, whereas the ordinary witness is compelled to take the stand in the first instance and his opportunity for choice does not come until later when, perhaps by surprise and without clear portent, some part of an incriminating fact is asked for.” 8 Wigmore on Evidence (McNaughton Rev. 1961), 489, Section 2276(2).

There is another compelling reason for rejecting appellant’s sixteenth assignment of error. It is obvious that when courts and commentators speak of an accused’s ahsg-lute right to remain silent, they do not mean an unqualified or unlimited right to remain silent at all times. If this were the meaning of Escobedo v. Illinois (1964), 378 U. S. 478, 12 L. Ed. 2d 977, and Miranda v. Arizona, supra, there would be no explanation for cases like Massiah v. United States (1964), 377 U. S. 201, 12 L. Ed. 2d 246, and Hoffa v. United States (1966), 385 U. S. 293, 17 L. Ed. 2d 374, rehearing denied, 386 U. S. 940, 17 L. Ed. 2d 880.

The right to remain silent arises as a consequence of a man’s privilege against self-incrimination in factual situations where there is the possibility of incriminatng state-' ments being elicited by some form of compulsion. As the United States Supreme Court has stated: “The constitutional privilege against self-incrimination has two primary interrelated facets: The government may not use compulsion to elicit self-incriminating statements * * * and the government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion.” (Emphasis added.) Murphy v. Waterfront Comm. of New York Harbor (1964), 378 U. S. 52, 12 L. Ed. 2d 678, footnote 6.

The Escobedo and Miranda decisions appear to be a declaration, by the United States Supreme Court, that when a suspect is in the custody of the police and subjected to interrogation, the probability of compulsion is so great that warnings that the suspect has certain rights, particularly the right to remain silent, must be given to avoid the possibility of involuntary statements being elicited.

In the case at bar, although the appellant was in the custody of the police, nothing in the record indicates that he was ever interrogated by anyone. In all recent cases in which the courts have prohibited cross-examination or comment by the prosecution on the fact that an accused stood silent in the face of accusation, the opinions clearly reveal that the accused was not only in the custody of the police, but was also subjected to interrogation. See, for example, United States v. Brinson (C. A. 6, 1969), 411 F. 2d 1057; People v. Christman (1969), 23 N. Y. 2d 429, 244 N. E. 2d 703; United States, ex rel. Smith, v. Brierly (C. A. 3, 1967), 384 F. 2d 992; United States v. McKinney (C. A. 6, 1967), 379 F. 2d 259. But contra, see State v. Zappia (1968), 8 Ariz. App. 549, 448 P. 2d 119, rehearing denied, January 22, 1969, review denied, February 18, 1969.

The twenty-eighth assignment of error is that one juror was challenged for cause by the prosecution in violation of the rule announced in Witherspoon v. Illinois (1968), 391 U. S. 510, 20 L. Ed. 2d 776.

Appellant agrees that Section 2945.25(C), Revised Code, is constitutional. He contends, however, that the challenge made with respect to a prospective juror, one Caesar Wilkins, went beyond Section 2945.25(C), Revised Code, and into the area proscribed by Witherspoon. Wilkins was challenged only after the following question and answer:

“Q. And do I understand then, Mr. Wilkins, if you were a juror you could not join in a verdict that would send this man Laskey to his death if you thought it was a proper case? You couldn’t do it?

“A. Well, I think he should have life. I don’t think I’d be willing to execute a person.

“Mr. Rueger: I think I’ll have to challenge for cause, Your Honor.”

At the time of the voir dire in the instant case, Section 2945.25(C), Revised Code, provided that a person called as a juror could be challenged for cause in a capital case if “Ms opinions preclude him from finding the accused guilty of an offense punishable with death.”

In State v. Pruett (1969), 18 Ohio St. 2d 167, 169, 248 N. E. 2d 605, this court stated that:

“Unlike the Illinois statute, our statute does not authorize a challenge for cause of anyone merely because he says he ‘has conscientious scruples against capital punishment, or that he is opposed to the same. ’ Our statute has, since at least 1869 (66 Ohio Laws 287, 307), apparently agreed with the conclusion stated in the opinion in Wither-spoon, and thus has authorized challenging a juror for cause only where such a juror had opinions which pre-eluded him from voting for a verdict that' would result in the death penalty." (Emphasis added.)

There is nothing ambiguous about Section 2945.25(C), Kevised Code. It conforms with the requirements set forth in Witherspoon. Such an unambiguous statute is not ineffective before interpreted by this court. It is significant that this court has never, before State v. Pruett, supra, had to consider a case determining whether or not that statute meant what it clearly appears to mean, i. e., that a juror may be challenged for cause because of his opinions about capital punishment only where those “opinions preclude him from finding the accused guilty of an offense punishable with death.” If that statute had been generally interpreted otherwise during any substantial portion of the last one hundred years, certainly some lawyer would have questioned such an interpretation, especially after his client had been sentenced to death.

Thus, appellant could have raised an objection to the challenge for cause at the voir dire below, irrespective of whether Witherspoon had ever been decided. See State v. Duling (1970), 21 Ohio St. 2d 13. The record in this case reveals that appellant did not object to the exclusion of Wilkins. This failure to object at the voir dire examination constitutes a waiver of the objection and precludes appellant from raising the question now. State v. Pruett, supra, footnote two; State v. Wigglesworth (1969), 18 Ohio St. 2d 171, 248 N. E. 2d 607. See State v. Duling, supra. See, also, Singer v. United States (1965), 380 U. S. 24, 13 L. Ed. 2d 630; Schmerber v. California (1966), 384 U. S. 757, 16 L. Ed. 2d 908, footnote nine.

There are good reasons why a party should not be allowed to rely upon such a potential objection where he could have but did not make any effort to give the trial judge an opportunity to consider that objection and avoid any error that might result from a ruling thereon.

For example, it is stated in the opinion in Adams v. State (1874), 25 Ohio St. 584, 587:

“* * * the fair administration of justice * * * requires that when an error is supposed to have been committed there should be an opportunity to correct it at once, before it has had any consequences; and does not permit the party to lie by, without stating the ground of his objection, and take the chances of success on the grounds on which the judge has placed the cause, and then, if he fails to succeed, avail himself of an objection which, if it had been stated, might have been removed.”

See, also, Insurance Co. v. Sea (1874), 21 Wall. 158, 162, 22 L. Ed. 511; State v. Tudor (1950), 154 Ohio St. 249, 257, 95 N. E. 2d 385; Rhoades v. Cleveland (1952), 157 Ohio St. 107, 115, 105 N. E. 2d 2.

In view of the competence of counsel who represented the defendant in this case, it is difficult to escape the conclusion that they did not object to the ruling of the trial court in excusing the one juror, that is now complained of, because they did not believe that that ruling would prejudice their client. To permit them now to rely upon that ruling as a means of getting another opportunity for their client to receive a favorable verdict from another jury, would provide a kind of gamesmanship, which would seriously interfere with the fair administration of justice in this state.

A complete and thorough examination of the record in this case discloses no error prejudicial to the rights of the appellant, and the judgment of the Court of Appeals is, therefore, affirmed.

Judgment affirmed.

Taut, C. J., SchNeider, Herbert and Corrigaw, JJ., concur. 0 ’Neill, J., concurs in the judgment only. DuNCAN, J., concurs in the judgment and in paragraphs one through fifteen of the concurring opinion of 0 ’Neill, J. Matthias, J., not participating.