State v. Harper, 2012 Ohio 4527

State v. Harper, Ohio Fourth Appellate District, 2012-Ohio-4527, decision reversing conviction and remanding for new proceedings.
Harper was convicted of aggravated robbery under R.C. 2911.01(A)(1).
Appellant argues ineffective assistance of counsel due to trial counsel’s failure to object to repeated use of Harper’s invocation of the right to silence as guilt evidence.
The state elicited and repeated Harper’s silence during interrogation and his statements, and the prosecutor framed silence as an admission of guilt.
The court found deficient performance and prejudice, concluding the violations permeated the trial and tainted the result.
The judgment was reversed and the case remanded for proceedings consistent with the opinion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel’s failure to object to the use of silence evidence was ineffective assistance.	Harper	Harper	Yes; trial counsel deficient and prejudiced; reversal warranted.

State v. Leach, 102 Ohio St.3d 135 (2004-Ohio-2147) ( Fifth Amendment right to silence; impermissible use of silence as guilt)
State v. Whitaker, 2008-Ohio-4149 (4th Dist.) ( invocation of right to silence improperly used; risk of prejudice)
State v. Perez, 2004-Ohio-4007 (2004-Ohio-4007) ( post-arrest silence; due process concerns)
Doyle v. Ohio, 426 U.S. 610 (1976) ( silence during interrogation cannot be used against defendant)
Strickland v. Washington, 466 U.S. 668 (1984) ( standard for ineffective assistance of counsel (deficient performance and prejudice))