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State v. Hill7/5/2001
trial court found that the continued questioning of appellee by Bailey had violated Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and Michigan v. Mosley (1975), 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, and ruled that the questioning of appellee should have ended after appellee stated, "I'm not saying anything." The trial court suppressed the tape-recorded statement.
Even though the trial court suppressed the tape recording, the trial court specified that its ruling did not include suppressing anything said "prior to the taped statement being made." When the jury reentered the courtroom, the state resumed its direct examination of Bailey and again questioned him about what appellee had said up to and including the point where appellee stated that he was not saying anything. Appellee did not object to these questions, did not request a limiting instruction, and no limiting instruction was given.
During closing argument, and also during its rebuttal argument, the state again alluded to appellee's statement that he was not saying anything. After rebuttal, out of the presence of the jury, appellee's counsel objected to the state's repetition of appellee's statement in its closing arguments but did so in the context of contending that the state was improperly commenting on appellee's decision not to take the witness stand. The state replied that it had not intended for its repetition of appellee's statement to be an implied comment on appellee's decision not to testify. The trial judge stated that he would give an instruction that appellee did not have to testify, and that "that should clear it up." Appellee's counsel did not respond to the trial court's statement and the discussion was concluded.
B.
As the starting point for our analysis, we first determine that appellee's objection, lodged after closing argument, contending that the state was improperly commenting on his decision not to take the witness stand, cannot be taken as an objection regarding the specific issue we consider, which is whether the state improperly introduced evidence and commented on appellee's invocation of his right to remain silent. From the context, it is clear that defense counsel was objecting only to what he considered to be an implied comment on appellee's failure to take the stand. Therefore, the issue must be reviewed under the standards for plain error (see Crim.R. 52 ), rather than under the standards for harmless error (see Crim.R. 52 ).
In Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, the United States Supreme Court held that the use for impeachment purposes at trial of a defendant's silence, at the time of arrest and after receiving Miranda warnings, violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In State v. Rogers (1987), 32 Ohio St.3d 70, 73, 512 N.E.2d 581, 584, this court noted that "federal courts, in applying the plain or harmless error analysis in cases where there had been Doyle violations, with near unanimity, have held such to be violative of due process and therefore prejudicial, requiring a reversal." Of course, there was no use of appellee's silence for impeachment here, as he did not testify, so this case differs from Doyle in a key particular.
In Wainwright v. Greenfield (1986), 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623, the United States Supreme Court held that the use of a criminal defendant's silence after receiving Miranda warnings to rebut his claim of insanity violates due process. The court reasoned that Doyle held that Miranda warnings contain an implied assurance, based in the Constitution, that silence would carry no penalty. 474 U.S. at
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