State v. Barrett, 2021 Ohio 2134

Barrett was indicted for felonious assault after a January 1, 2019 hotel fight in which victim M.G. suffered a fractured skull and permanent impairments; codefendant Melvin Ivey earlier pled no contest to felonious assault in connection with the same incident.
At trial Ivey (a lifelong friend of Barrett) testified for Barrett, claiming he alone slammed M.G. to the pavement and that he did not see Barrett kick or stomp the victim.
On cross-examination the prosecutor asked Ivey why he had not earlier told law enforcement that Barrett was innocent; defense objected, arguing Fifth Amendment concerns; the court overruled and allowed Ivey to explain he had followed counsel’s advice and did not understand the system.
The jury convicted Barrett of felonious assault; the trial court sentenced him to eight years’ imprisonment consecutive to another term; Barrett appealed.
On appeal Barrett argued the trial court erred under Evid.R. 403(A) by permitting questions about Ivey’s pretrial silence (arguing unfair prejudice and limited probative value); the State argued Barrett had not preserved a prejudice objection and that the questioning was proper impeachment of a witness’s credibility.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Barrett)	Held
Admissibility of questioning a witness about his pretrial silence to impeach credibility	The State argued questioning was proper impeachment of Ivey’s credibility; Ivey’s explanation for silence was probative.	Barrett argued the probative value was substantially outweighed by unfair prejudice under Evid.R.403(A) (and at trial defense initially framed objection as a Fifth Amendment issue).	Court affirmed: trial court did not abuse discretion. Barrett forfeited an Evid.R.403-specific objection and cannot show plain error; the impeachment had probative value and was not unfairly prejudicial in context; conviction supported by other eyewitness testimony.

O’Brien v. Angley, 63 Ohio St.2d 159 (1980) (trial court evidentiary rulings reviewed for abuse of discretion)
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (definition of abuse of discretion)
Long v. State, 53 Ohio St.2d 91 (1978) (plain-error relief to be exercised with utmost caution)
Barnes v. State, 94 Ohio St.3d 21 (2002) (plain-error standard—error must seriously affect fairness, integrity, or public reputation of proceedings)
U.S. v. Hale, 422 U.S. 171 (1975) (limitations on using a defendant’s silence against him)
State v. Sabbah, 13 Ohio App.3d 124 (1984) (discussion of use of defendant’s pretrial silence)
Commonwealth v. Hart, 455 Mass. 230 (2009) (distinguishing impeachment of a witness’s silence from impermissible use of a defendant’s silence)