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State v. Hill7/5/2001
an. We do not believe that the anonymous jury rule impinges on fundamental rights in the same way as the deprivation of counsel in Gideon, or the biased trial judge in Tumey, or the racial discrimination in Vasquez. Accordingly, to the extent that the court of appeals held that structural error warrants the reversal of appellee's convictions, we reverse that judgment.
C.
Because this is not a structural-error situation, we must proceed to consider whether plain error occurred in the use of an anonymous jury. A thorough review of the record reveals no hints of any prejudice to appellee flowing from the use of an anonymous jury. The trial court explained to the potential jurors at the outset of voir dire that anonymity was the rule for all trials in that court, making clear that anonymity was not being invoked to prevent them from being harmed by this particular defendant. An extensive voir dire of the potential jurors was conducted, and we can find no indications in the record that appellee's attorney's efforts to seat an acceptable jury were impeded in any way by the unavailability of the names and addresses of jurors.
Indeed, we would be hard-pressed to determine from this record that any error occurred in the seating of an anonymous jury, the starting point for a plain-error inquiry. See Crim.R. 52(B). See, also, United States v. Olano (1993), 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508, 518 (first condition to be met in noticing plain error is that there must be error). Since appellee has failed to persuade us that any error occurred in the use of an anonymous jury, we agree with the court of appeals that appellee falls well short of demonstrating "plain error" warranting reversal.
III. Appellee's Statement
The second major issue we address is whether plain error occurred when the state used at trial appellee's statement made to a police officer that appellee was "not saying anything." This statement was conveyed to the jury by a police officer who testified for the state, and by the state's mention of the statement in closing arguments.
A.
As its final witness, not long before the conclusion of the state's presentation of evidence, the state called Lancaster Police Detective David W. Bailey, who had interviewed appellee on September 15 after he was arrested. Bailey was asked on direct examination about an exchange he and appellee had had after appellee signed a Miranda rights waiver and before appellee made a tape-recorded statement. The prosecutor asked, "And during that pre-interview, when you confronted [appellee] about the homicide, the murder of Harry Sisco, what, if anything did he say?" Bailey responded, "I told him that Harry Sisco was the victim of a shooting homicide and he told me that's the first time that he heard it, that that had taken place. I then confronted him with some of the meager information that I had at that point about him being seen in the area, also about the argument prior to the homicide. And his exact words to me at that point were, `You do what the fuck you have to. I'm not saying anything.' "
The state then prepared to play appellee's tape-recorded statement to the jury. At this point, in his first challenge to the recording, appellee's attorney objected, arguing that once appellee said that he was "not saying anything," all questioning should have ceased and that therefore the tape recording should be suppressed. The trial court decided to entertain appellee's late challenge to the recording (see Crim.R. 12 ), excused the jury, and conducted an extensive hearing, which included a voir dire of Bailey and appellee regarding the conversation. After the hearing, the
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