Opinion
No. 70-333
Decided July 21, 1971.
Criminal law — Privilege against self-incrimination — Accused's right to remain silent — Privilege waived, when — Accused testifies he chose to remain silent — May be cross-examined about silence, when — Evidence.
Where a defendant on examination by his own counsel testifies that he chose to remain silent during in-custody interrogation by police, such testimony results in waiver of the privilege against self-incrimination, and the prosecuting attorney may thereafter cross-examine defendant concerning his exercise of that privilege.
APPEAL from the Court of Appeals for Cuyahoga County.
Alan Young, appellee herein, was indicted for murder in the first degree for the killing of Lee Seales, Jr., and Tracy Seales. He was tried to a jury which found him guilty on both charges. The jury did not recommend mercy.
At the trial, when defendant testified in his own defense, the prosecuting attorney cross-examined defendant as follows:
"Q. How long have you known your attorney, Mr. Cotton?
"A. Since I have been in here.
"Q. You knew him before you were in here, didn't you?
"A. No. I seen him; I didn't know his name.
"Q. Has he ever represented you on any matters before?
"A. No.
"* * *
"Q. Now before you came to trial on this matter, Alan Young, you certainly had many conversations relative to your whereabouts on this weekend with your attorney, Mr. Cotton, did you?
"A. Did I have several conversations?
"Q. Certainly you talked this matter over with your attorney, Mr. Cotton, didn't you?
"A. Yes.
"Q. And in fact, in order to prepare this case for trial, Mr. Cotton had a number of consulting interviews with you, didn't he?
"Mr. Cotton: Objection.
"The Court: The objection is sustained. The jury is asked to disregard that."
On redirect examination, defendant's counsel questioned defendant thus:
"Q. Alan, what time was it when I first talked with you in connection with this case?
"A. The day I was arrested around 11:00, 12:00, 10:00, something like that.
"Q. Do you recall my conversation with you at that time at the city jail?
"A. Yes.
"Q. Will you tell the jury what, if anything, was said to you in connection with this case?
"A. He (Mr. Cotton) asked me where was I at that night and I told him where I was at that night, and he asked me where I was the night before and I told him where I was the night before, I told him where I was at. So, he left to go check out and see if what I said was right. That is when he set out to see that everything I said was right, seeing was I telling the truth.
"Q. Mr. Young, did you give the police a statement in connection with the events that you were accused of on Monday evening?
"A. No.
"Q. Did you at any time make a statement to the police in connection with the events of Monday evening?
"A. Give the police a statement?
"Q. Yes, did you give the police a statement at all?
"A. No.
"Q. And was your failure to give a statement to the police on your activities that evening on my advice?
"A. Yes.
"Q. And you followed my advice, did you not?
"A. Yes."
Then the following questions were asked by the prosecuting attorney on recross-examination:
"Q. And you say then after that situation that occurred between you and the police officers at the side of the automobile, they then took you to the jail, didn't they?
"A. Yes.
"Q. And it was then when you were in jail that you contacted your attorney?
"A. I talked — contacted my mother first.
"Q. Oh, first you had an opportunity to call your mother?
"A. Yes.
"Q. And you contacted your attorney?
"A. I had a visitor and I contacted my attorney.
"Q. Then you further told us here just a while back on advice of your attorney you made no statement to the police, is that right?
"A. That's right.
"Q. When you refer to a statement to the police that is in reference to any statement in writing that the police may have asked you to make, isn't that right?
"A. That is right.
"Q. Now, you told us earlier you said you had nothing to hide; did you feel at that time, then, Mr. Young, that you had something to hide after you contacted your attorney?
"Mr. Cotton: Objection.
"The Court: The objection is sustained.
"Q. Well, earlier that morning when the police picked you up and took you to your car you told us you had nothing to hide?
"A. That's right, I didn't have to go with the police. I seen them before they seen me. I opened the door.
"Q. You didn't have to go with the police?
"A. No, I didn't.
"Q. And you said you went voluntarily with the police?
"A. Yes.
"Q. And you stayed with the police voluntarily, didn't you?
"A. You mean — I could have gotten out of the car?
"Q. Right, but not after they arrested you and took you down to jail, after that you couldn't get away from them?
"A. I was thinking they was going to let me go.
"Q. But they took you and locked you into jail?
"A. Yes.
"Q. At that time you contacted your mother?
"A. My mother.
"Q. Your mother and later your attorney?
"A. Yes.
"Q. Up to that point you said yesterday you were cooperating with the police, weren't you?
"* * *
"Mr. Cotton: Objection.
"The Court: The objection is sustained.
"Q. Didn't you tell us that yesterday?
"Mr. Cotton: Objection.
"The Court: Sustained.
"Q. In any event, then, after you talked with Mr. Cotton did you cooperate with the police?
"Mr. Cotton: Objection.
"The Court: The objection is sustained.
"Q. You told them nothing further after that, isn't it true?
"Mr. Cotton: Objection.
"The Court: Wait just a minute, gentlemen; there will be one question, the objections will be recognized at the completion of the question.
"The objections to the questions just asked, the two or three preceding questions have been sustained. The jury is asked to disregard the questions and the answers. Let's proceed.
"Q. What did you mean when you said in answer to the question that Mr. Cotton just asked of you shortly before this: `I did not give the police a statement'; what did you mean by that?
"A. They didn't ask me to sign anything, that is what a statement is. I didn't sign anything.
"Q. What do you mean in regard to a statement?
"A. Tell them where I was at Friday, Saturday, Sunday, Monday.
"Q. Did they want you to put that in writing?
"A. I don't recall them ever asking me anything about my whereabouts.
"Q. By a statement you make reference to the fact that you have to sign something as to your whereabouts?
"A. Or be present with a lawyer at the time.
"Q. So, in that regard you gave them no statement?
"A. I don't recall them ever asking me where I was at that weekend."
During final argument to the jury both the prosecuting attorney and defense counsel referred to the fact that defendant, when questioned by police, had exercised his constitutional right to remain silent.
Defendant appealed his conviction to the Court of Appeals. That court reversed the judgment, stating:
"On the facts of this case, it was error of constitutional dimension to insinuate to the jury by cross-examination that the defendant's exercise of his right to remain silent after consultation with counsel was improper. Griffin v. California, 380 U.S. 1 * * *."
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. John T. Corrigan, prosecuting attorney, Mr. Henry Szemer and Mr. Harvey R. Monck, for appellant.
Mr. Anthony J. Cotton, for appellee.
The gravamen of the claim of error in this appeal is whether the state's cross-examination of defendant concerning his decision to remain silent during in-custody interrogation by police constituted an infringement upon the exercise of that constitutional right.
As we noted in State v. Laskey (1970), 21 Ohio St.2d 187, 194, nothing in Griffin v. California (1965), 380 U.S. 609, or Miranda v. Arizona (1966), 384 U.S. 436, "forbids cross-examination once the accused has taken the stand." However, the fact that a defendant decides to testify does not of itself provide the state an opportunity to cross-examine him as to whether he exercised the privilege to remain silent when accused of commission of a crime.
That question was settled in State v. Stephens (1970), 24 Ohio St.2d 76, in which paragraph two of the syllabus reads:
"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."
At the same time, the right to silence, once invoked, may later be waived. This was expressed in paragraph four of the syllabus of Stephens as follows:
"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." (Emphasis added.)
Inasmuch as a defendant by his testimony may waive "the privilege against self-incrimination previously invoked," we must determine, in light of the record herein, whether defendant by his testimony waived that privilege.
An examination of the record, pertinent excerpts of which are set forth in the statement of facts above, discloses that, although the state did inquire about conversations between defendant and his counsel, in its initial cross-examination of defendant, it made no reference to the defendant's decision to exercise his right to remain silent during interrogation.
The first mention of the exercise by defendant of the privilege to remain silent was made during defendant's redirect examination by his own counsel.
As reason for such disclosure on redirect, defendant states:
"It was the inquiry of the prosecutor about his relationship with counsel before the jury which impelled clarification by defendant."
Defendant argues that "it was the cross-examination of the prosecutor interrogating defendant about his relationship with his attorney that clearly indicates the state initiated its own error."
We do not agree. Disclosure of the fact that defendant had conversations with his attorney prior to trial did not convey to the jury any information in respect to whether defendant had exercised his option to remain silent. Moreover, it does not necessarily follow, from the fact that defendant talked with his attorney, that he was advised to remain silent or that he chose to remain silent as a result of the conference with his attorney. Therefore, defendant's contention that the disclosure on redirect examination of the fact that he had remained silent during interrogation was "impelled" by the state is without merit. Consequently, we conclude that such disclosure was voluntary. In view of this, defendant may not complain about the prosecuting attorney's cross-examination concerning the exercise of his right to remain silent "* * * because he volunteered this information upon direct examination by his own counsel." State v. Pollard (1970), 21 Ohio St.2d 171, 174.
Thus, where a defendant, on examination by his own counsel, testifies that he chose to remain silent during in-custody interrogation by police, such testimony results in waiver of the privilege against self-incrimination, and the prosecuting attorney may thereafter cross-examine defendant concerning his exercise of that privilege.
For the reasons stated, the judgment of the Court of Appeals is reversed and the judgment of the Court of Common Pleas is affirmed.
Judgment reversed.
SCHNEIDER, HERBERT, STERN and LEACH, JJ., concur.
O'NEILL, C.J., and DUNCAN, J., concur in the judgment.
I am in disagreement with the reasoning of the majority that where a defendant, on direct examination by his own counsel, testified that he chose to remain silent during in-custody interrogation by police, such testimony results in waiver of the privilege against self-incrimination. As I view it, I do not find that defendant's testifying in this case affords a basis to deny the protection extended an accused in State v. Stephens (1970), 24 Ohio St.2d 76. I do not believe that a defendant's mere explanation upon examination by his counsel, that he did not make a statement to the police because of the advice of counsel, affords a basis to deny the protection extended an accused in State v. Stephens (1970), 24 Ohio St.2d 76. More than such an explanation is necessary to constitute a waiver. Upon re-direct examination the defendant testified to the general effect that he made no incustody statement to the police upon the advice of counsel. The court limited the cross-examination of defendant revealing that he did refuse to make such a statement, and nothing more, despite the prosecutor's attempt to inquire deeper. Objections by defense counsel were sustained to the following questions asked by the prosecuting attorney on recross-examination:
"Q. Now, you told us earlier you said you had nothing to hide; did not feel at that time, then, Mr. Young, that you had something to hide after you contacted your attorney?"
"Q. Up to that point you said yesterday you were cooperating with the police, weren't you?"
"Q. In any event, then, after you talked with Mr. Cotton did you cooperate with the police?"
"Q. You told them nothing further after that, isn't it true?"
As I read the record, the trial court correctly permitted cross-examination as to the fact surrounding the defendant's in-custody activity, but allowed no questions concerning his motive, or his counsel's motive, in remaining silent during this period.
In my view, the prosecutor's argument, rather than the state's cross-examination, produces a problem. The prosecutor argued:
"One of the most opportune times that Mr. Young had to justify the presence of any group of people at this apartment was when he talked with the police Officers Jackman and Albrecht, on the morning of Tuesday, April 9. What is the very first thing he said to them?
"He said he was at home because at that time — it establishes, anything that took place in this courtroom, that he himself didn't have a pre-determined alibi, a pre-determined story established. By telling the police officers that he was home indicates to us that right at that time he is still not, doesn't have anything, any system really working for him in order to get any consolidated testimony upon a certain point or a certain location for himself on the events of April 8th of 1968.
"* * *
"Where is all the cooperation that he manifested with the police department? Why, when the police department after that told him and asked him if he wanted to give them a statement — you have all the testimony before this court, Mr. Cotton himself standing up and saying he exercised his constitutional rights, his right to remain silent.
"Ladies and gentlemen, the right to remain silent at this point when he indicated he cooperated up until that point until he finds out that they want him and want to know about his whereabouts because of the killing of Tracey Seales and Lee Seales, Jr., then he has constitutional rights?
"Ladies and gentlemen, I submit to you, take those facts into consideration and see where they lead you in the way of inference."
In State v. Stephens, supra ( 24 Ohio St.2d 76), the prosecutor's argument found to give rise to prejudicial error was:
"Why did he not tell the police at the shopping center * * *.
"* * *
"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?"
In this case, defendant Young testified at trial and did not make a statement to the police upon the advice of counsel. In the Stephens case, defendant Stephens testified at trial; and there was no evidence as to whether or not counsel advised him to remain silent while in custody.
As the case narrows, the pivotal question becomes whether defendant's specific testimony furnished a basis for a holding that there was a waiver of the privilege against self-incrimination, permitting the prosecutor to argue the implications of defendant's in-custody silence.
Obviously, in Stephens, we found no waiver. The majority opinion in the instant case appears to hold the waiver complete because, on direct examination by his own counsel, defendant testified that he chose to remain silent during in-custody interrogation by the police. I believe that a further analysis of the facts is essential to determine whether there has been such a waiver.
Stated another way, I believe that in final argument the state may not draw implications from an accused's previously asserted silence at any stage of the accusatorial process, notwithstanding the fact that defendant testified that he had remained silent on the advice of counsel, unless other facts indicative of a waiver are adduced.
However, I find no objection having been made to the prosecutor's argument in the record. Furthermore, although appellant complains about the state's argument, he does not set it up as a proposition of law for our review, nor did the Court of Appeals set forth such a reason for its reversal.
For the foregoing reasons, I concur in the judgment only.
O'NEILL, C.J., concurs in the foregoing concurring opinion.