Summary
In State v. Schaub (1976), 46 Ohio St.2d 25, 75 O.O.2d 94, 346 N.E.2d 295, the prosecutor interrupted the witness's questioning and asked the court to advise the witness of his rights because he believed that the witness's testimony could involve him in criminal conduct.
Summary of this case from State v. PooleOpinion
No. 75-308
Decided April 21, 1976.
Criminal procedure — Evidence — Witnesses — Prosecutor's caution concerning possible self-incrimination — Not prejudicial to defendant's constitutional rights, when.
APPEAL from the Court of Appeals for Montgomery County.
On July 30, 1973, defendant, John J. Schaub, was indicted on one count of taking the life of a police officer, one count of first-degree murder, and one count of carrying a concealed weapon. These charges arose out of an incident, occurring on July 1, 1973, at Tony's Bar, 522 Xenia Avenue in Dayton.
At trial, before a three-judge panel in the Court of Common Pleas, witnesses for the prosecution testified that shortly after the bar opened for business at 6:00 a. m., two young men, identified as defendant and his companion, Richard D. Everett, entered the barroom and asked to use the restroom. Everett was bare to the waist and had something white wrapped around his right hand, while defendant was wearing an opened shirt. Mrs. Bellar, the barroom manager, became "scared" and asked defendant and Everett to leave. Officer Daniel Bruns, a Dayton Police Officer, then entered the barroom, overheard Mrs. Bellar's request and said, "Now you heard what the lady said. Now hit it." As the men were in the process of leaving, Everett in the lead, they passed into the vestibule, located between the bar's inner and outer doors. At that point Officer Bruns, while holding the inner door in an opened position, was seen to "sort of [boot] * * *," or "raise the sole of his foot as if to push" defendant, after which the officer followed defendant into the vestibule allowing the door to swing closed behind him. A shot was heard and Officer Bruns fell.
At the close of the state's case, the court sustained defendant's motion to dismiss the charge of taking the life of a police officer, the state failing to prove that Officer Bruns was in the discharge of his duties at the time of his death.
Richard Everett was then called as a defense witness and answered several questions, revealing that he knew defendant and had been with him on the evening prior to the shooting. Mr. Herbert Jacobson, trial counsel for the state, interrupted the questioning and indicated that he had discussed with Everett his participation in the events of the night preceeding, and those of the morning of the shooting, and felt that the court should advise him of his rights, as his testimony could involve him in "some acts of unlawfulness under our present statutes." The court inquiring of defense counsel elicited the response that it was possible that some of the questions to be asked would engender answers which might jeopardize the witness's rights. After the court appointed counsel to represent Everett, his testimony resumed. Whereupon, being advised of his rights, Everett refused to answer further questioning relating to a possible offer of immunity by the state, on the ground of self-incrimination. The court then refused to allow the witness to proffer testimony into the record, because this "would circumvent his right to invoking the Fifth Amendment." The witness was dismissed.
The issue of the witness's immunity was not raised on appeal, and thus is not passed upon.
Defendant then testified as to the events which transpired, claiming that he was pushed into the middle of the vestibule by Officer Bruns; that he was kicked in the groin by the officer; that he saw the officer "coming at me"; and that he thereupon pulled out his gun and shot the officer.
The court unanimously found defendant guilty of carrying a concealed weapon and not guilty of first-degree murder, but guilty of the lesser included offense of murder in the second degree, and sentenced defendant to the penitentiary.
The Court of Appeals affirmed that judgment, and the cause is before this court upon the allowance of a motion for leave to appeal.
Mr. Lee C. Falke, prosecuting attorney, and Mr. Gary W. Crim, for appellee.
Messrs. Boller Shuffelton and Mr. Michael F. Boller, for appellant.
The sole issue for determination is whether the actions of trial counsel for the state in informing the defense witness of his Fifth Amendment right to remain silent, calling the court's attention to possible difficulties with the defendant's testimony, and the trial court's subsequent rulings thereon, were prejudicial to the defendant's rights under the Sixth Amendment and Section 10, Article I, Ohio Constitution, to obtain witnesses in his favor.
In Hoffman v. United States (1951), 341 U.S. 479, 486, the United States Supreme Court stated with respect to a witness's privilege against self-incrimination:
"* * * It is for the court to say whether his silence is justified, Rogers v. United States, 340 U.S. 367 (1951), and to require him to answer if `it clearly appears to the court that he is mistaken.' Temple v. Commonwealth, 75 Va. 892, 899 (1881)."
The court stated further, at page 488, that it must be "* * * ` perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and the answer[s] cannot possibly have such tendency' to incriminate. * * * [Citations omitted.]"
From a review of the record, this court agrees with the Court of Appeals that "[t]here is evidence that Everett was a companion and accompanied the defendant the night before the killing, and during the intervening time up to the time of the killing. Any statement Everett made under oath during the trial of defendant could be used against him upon a subsequent trial of his own. The trial court had a duty to protect the constitutional rights of Everett as well as to ensure defendant a fair trial. The trial court could not compel Everett to testify, and to have done so, or in any way coerce Everett, would have been reprehensible. * * *" See Hoffman v. United States, supra.
With regard to the prosecution's conduct herein, the instant case is distinguishable from the recent case of United States v. Smith (C.A.D.C. 1973), 478 F.2d 976, which involved a similar fact situation. In that case the court, reversing defendants' convictions, held, at page 979, that "[w]e think that the prosecutor's warning was plainly a threat that resulted in depriving the defendants of * * * [the witness's] testimony." (Emphasis added.) In the instant case, no such "threat" was involved. In Everett's own words, "He [Mr. Jacobson] didn't say he didn't want me to testify; he said it was something or another that I didn't have to testify, or something like that."
This court does not find any improper action prejudicial to defendant's constitutional rights. See ABA Standards relating to the Prosecution Function and the Defense Function, the Prosecution Function, Section 3.2(b), at page 81 (1970).
Section 3.2(b) is as follows:
"In interviewing a prospective witness it is proper but not mandatory for the prosecutor or his investigator to caution the witness concerning possible self-incrimination and his possible need for counsel."
By reason of the foregoing, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.