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State v. Hill7/5/2001
to resolve whether an error "affec substantial rights" because the error did not "seriously affec the fairness, integrity or public reputation of judicial proceedings"). Therefore, unlike the majority, I would decide this case on Hill's failure to satisfy the second prong of the plain-error inquiry: the error must be plain. In addressing this prong, " everal federal appellate courts applying the Olano analysis have held that an error cannot be deemed plain if there is no controlling case law on point and the authority in other circuits is split. Simply put, if the law is unclear on a particular issue at the time of trial and remains that way at the time of appeal, the error cannot be plain and should not be noticed under Crim.R. 52(B)." (Citations omitted; emphasis added.) McKee, 91 Ohio St.3d at 300-301, 744 N.E.2d at 744 (Cook, J., dissenting).
Here, it was not clear either at the time of trial or appellate review that use of an anonymous jury violated Hill's constitutional rights. Neither the United States Supreme Court, this court, nor the Fifth District Court of Appeals had issued controlling case law on point. Therefore, no reviewing court could properly find error through a plain-error analysis. Even assuming arguendo that use of the anonymous jury was error, it was not plainly so in this instance.
II.
In addressing the state's solicitation of testimony regarding Hill's statements and the state's comments on Hill's invocation of his right to silence, the majority says that " or want of a better term, it seems accurate to label the manner in which the court of appeals resolved this issue as a `plain error per se' resolution." I agree with this statement only to the extent that it appears that the court of appeals failed to consider the alleged errors within the full context of the trial proceedings. This is analytic error necessitating remand. See Young, 470 U.S. at 11-12, 105 S.Ct. at 1044, 84 L.Ed.2d at 10 (inappropriate prosecutorial remarks must be examined within the context of the trial to determine whether plain error exists); State v. Treesh (2001), 90 Ohio St.3d 460, 480, 739 N.E.2d 749, 771 (improper testimony that a defendant requested an attorney during police interview can be harmless within the context of the trial).
The majority, however, goes on to state that a plain error per se approach "is inconsistent with the concept of plain error." But the validity of a "plain error per se" approach is not well settled and should not be dismissed as an impossibility without fuller analysis. Compare Young, 470 U.S. at 16, 105 S.Ct. at 1047, 84 L.Ed.2d at 13, fn. 14 ("A per se approach to plain-error review is flawed," because it "could well lead to having appellate courts indulge in the pointless exercise of reviewing `harmless plain errors' ") with Olano, 507 U.S. at 734-735, 113 S.Ct. at 1778, 123 L.Ed.2d at 519-520 (suggesting in dicta that there may be three potential categories of forfeited errors that can be recognized under plain-error analysis, including those forfeited errors that "can be corrected regardless of their effect on the outcome" and those forfeited errors that "should be presumed prejudicial if the defendant cannot make a specific showing of prejudice"). Given the arguable possibility of such an approach, I decline to adopt or reject outright that plain error per se could exist under Crim.R. 52(B) without fuller analysis.
III.
I concur with the majority's view that no structural error occurred in this case. I also agree with the majority's decision to reverse and remand for further consideration of whether those alleged errors related to Hill's invocation of his right to silence constitute plain error, to th
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