468 N.E.2d 718 | Ohio Ct. App. | 1982
This case is before the court on appeal from the Sandusky County Court of Common Pleas, wherein appellant was convicted and sentenced for violating R.C.
The undisputed facts precipitating this appeal may be summarized as follows. On the afternoon of January 24, 1982, appellant shot and killed Edward Lee Williams. The shooting occurred in Fremont, Ohio, outside the home of Charles Stark, a friend of appellant. Shortly after the shooting, at approximately 3:30 p.m., appellant was stopped and arrested by Perkins Township police as he drove toward Sandusky on State Route 6. Township officers then read appellant the Miranda warnings. He indicated to the officers that he did not wish to speak, and he refused to sign a written police form waiving his rights.
Sometime later, two Fremont police officers arrived at the Perkins Township Police Department and transported appellant back to Fremont. During the thirty-minute ride, appellant made no statements to the police officers. Once at the Fremont Police Station, appellant was given the Miranda warnings a second time by a Fremont detective. Appellant again indicated to the officers present that he did not wish to speak with them until he had consulted an attorney.
On January 26, 1982, the Sandusky County Grand Jury returned an indictment against appellant charging him with murder. A jury trial commenced on April 21, 1982. At trial, the prosecution presented evidence tending to show that appellant had a motive to kill Edward Lee Williams because of an earlier altercation between the two men in which appellant claimed Williams stole forty dollars from him. On the day of the shooting, both Williams and appellant, as well as several other people, had been present at the Stark residence watching the NFL Super Bowl game. The prosecution's theory alleged that after Williams left for a brief time to go to a nearby carry-out store, appellant waited outside the Stark residence to ambush him when he returned.
Appellant took the stand and testified to an exculpatory version of the shooting. He maintained that he shot Williams in self-defense. Appellant claimed that during the earlier altercation involving the forty dollars, Williams had brandished a handgun and threatened him. He also testified that subsequent to that incident, Williams proceeded publicly to make threats on his life. Appellant stated that he was leaving the Stark residence on January 24 to go home when Williams returned from the store and accosted him with what appeared to be a handgun. He maintained that he shot Williams in self-defense, believing that Williams was about to kill him. Appellant further testified that, after the shooting, he drove to Sandusky intending to tell his mother what had happened and that he was then going to call the police.
On cross-examination, the prosecutor challenged appellant's exculpatory account of the shooting. Over timely objection by defense counsel, the prosecutor was permitted to ask appellant why, after his arrest, he failed to tell the police his self-defense story. In his closing argument to the jury, the prosecutor, over objection, was permitted to argue the significance of appellant's failure to inform the police that he shot Williams in self-defense *126 and that Williams had been carrying a gun.
At 5:45 p.m. on April 23, the jury retired to the jury room to begin its deliberations. At 6:30 p.m., the jury sent the court a note in which it requested a copy of the court's instructions on self-defense. The court re-read those instructions and the jury returned to its deliberations. Approximately three hours later, the court received a second, very detailed note from the jury. The court instructed the jury to continue its deliberations with a view toward reaching a verdict. At approximately 11:00 p.m., the jury returned a unanimous verdict of guilty. On May 3, 1982, appellant was sentenced to a term of imprisonment. From the judgment of the trial court, appellant now appeals.
In bringing this appeal, appellant presents six assignments of error for review, the first three of which are:
"I. Appellant was denied due process of law guaranteed by the
"II. The trial court erred in permitting the state to use appellant's pre-arrest silence for impeachment purposes at trial.
"III. The trial court erred in failing to give a limiting instruction to the jury with regard to the testimony concerning appellant's post-arrest silence. Such error violated both the
Trial testimony relevant to the disposition of appellant's first two assignments of error is set forth below.
After testifying that he shot Williams in self-defense, appellant's direct examination continued as follows:
"Q. [Defense Counsel:] What was your condition of your mind at the time * * * [Williams] came out and started toward you?
"A. [Appellant:] I was scared to death.
"Q. Oh, and after this took place, you got in your car, is that correct?
"A. Yes.
"Q. And you were heading towards Sandusky?
"A. Yes.
"Q. For what reason?
"A. I was going to go tell my mother and then call the police. I was scared.
"Q. Did you ever get home?
"A. No.
"Q. The police stopped you before you got home, right?
"A. A State Patrolman started following me before I got out of Fremont."
On cross-examination, the prosecutor attempted to impeach appellant's credibility as follows:
"Q. * * * [After the shooting] you did not go to the police station, did you?
"A. No, I was trying to get out of Fremont, period. I didn't want any more —
"Q. And you didn't — You were trying to get out of Fremont, right?
"A. — trouble. I didn't want any more trouble.
"Q. And you didn't stick around and wait for the police to come so that you could explain this to them, did you?
"A. No. I could have got shot if I had stuck around.
"Q. And until this very day you have never told the police that you did this in self-defense, did you?
"A. I didn't explain it with nobody.
"MR. LEVIN: Your Honor, objection, I ask that that be stricken and the Jury be instructed to disregard that.
"THE COURT: Overruled.
"Q. You have never, until you got on this stand here today, told anybody, with the possible exception of Jack Levin, that this shooting occurred as a result of self-defense, have you? *127
"MR. LEVIN: Objection, your Honor.
"THE COURT: Overruled.
"A. I wasn't going to explain it to nobody.
"* * *.
"Q. Then after you had left the area, were on your way back to Sandusky, you were stopped and arrested by the Perkins Township Police Department, isn't that correct?
"A. Yes.
"Q. Did they tell you why they had stopped you?
"A. Yes.
"Q. Did you make any protestation to them? Did you say to them `Gee whiz, I was only protecting myself?'
"MR. LEVIN: Objection, your Honor. He's got a constitutional right. He knows that.
"* * *
"Q. Your testimony earlier to Mr. Levin was `I was going home to tell my mother and then I was going to tell the police.' Isn't that what you said?
"A. Call the police.
"Q. Call the police. Now you're on your way home, the Perkins Township Police stop you on Route 6 — You were on Route 6, right?
"A. Yes.
"Q. Now here you've got some policemen that you can tell. `My God, don't arrest me, I was just protecting myself. It was self-defense.' Did you say that to those policemen?
"MR. LEVIN: Objection again, Your Honor.
"A. No. I was going to be held as a suspect whether I told them or not.
"Q. Okay. Now some time later two officers from the Fremont Police Department came to the Perkins Township Police Department for the purpose of transporting you back to Fremont, didn't they?
"A. Yes.
"Q. And so you rode in a cruiser with two Fremont policemen from Perkins Township back to Fremont, is that correct?
"A. Yes.
"* * *
"Q. During that half hour ride did you ever once say to those Fremont policemen `My God, the guy was going to shoot me. I was shooting in self-defense. Go — '
"MR. LEVIN: Objection.
"Q. ` — out there on the scene and look for a gun.'
"MR. LEVIN: Objection.
"Q. Did you say anything like that to those police officers?
"MR. LEVIN: Objection.
"THE COURT: Overruled.
"A. I didn't want to talk about it until I got a lawyer."
On redirect examination, appellant testified, in part:
"Q. Now the Prosecutor made a big to do about you didn't tell the police. Didn't the police tell you you had a right to remain silent? Didn't they tell you that? Didn't they tell you you had a right to talk to a lawyer? Didn't they tell you that?
"A. Yes."
In his closing argument to the jury, the prosecutor made the following statements:
"You do remember that the Defendant testified in response to direct examination from his own attorney that he was on his way to Sandusky to tell his mother, and then he was going to call the police. Well, he never got to Sandusky, but he got to some police. He got to the Perkins Township Police, who arrested him, told him what they were arresting him for. He said nothing.
"MR. LEVIN: Objection.
"THE COURT: Overruled. That objection is in the record, Mr. Levin.
"He later was picked up by two Fremont police to be transported back to Fremont. Now it's true that the Perkins Township Police and the Fremont Police advised him of his rights, his Miranda Warnings. You don't have to talk. And that is absolutely true. You don't have to *128 talk. So what's reasonable? What's reasonable? If you have been in the position that this man is in and you know that you are now, and the police are telling you, going to be charged with the crime, what do you do? You say, `My God, man, I was protecting myself. I was defending myself. This guy had a five, six inch gun. It's silver. Go look for it.'"
At this point, defense counsel interposed a standing objection to any further comment on appellant's post-Miranda warning silence. The prosecutor continued:
"Go look for the gun Officers. This man was going to shoot me. Talk to these people. These people have told me in the last five days that he's going to kill me. Here's a list of the people. Go talk to these people. They'll tell you that he's been threatening me. He didn't do any of that. He didn't do anything. He didn't do anything because none of that's true."
"In the absence of the sort of affirmative assurances embodiedin the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand." (Emphasis added.)
The facts of the case sub judice suffice to distinguish the holding in Fletcher, for here we face no similar difficulty in determining when, or if, appellant received Miranda warnings. Yet, the import of the Fletcher holding is clear. The correct analysis focuses not upon muddled notions of "pre"-arrest versus "post"-arrest silence, but rather upon whether a criminal defendant's silence occurred before or after his receipt of theMiranda warnings. See Miranda v. Arizona (1966),
In Doyle v. Ohio, the defendant was given the Miranda warnings when arrested for selling marijuana to a police informant. He chose to remain silent. At trial, he testified that he was the victim of a "frame-up" by narcotics agents. On cross-examination, and for impeachment purposes, the prosecutor was permitted to ask the defendant why he had not revealed this exculpatory explanation to the arresting officer.
In holding that this use of the defendant's silence, after receiving the Miranda warnings, was constitutionally impermissible, the Supreme Court stated at 617-618:
"Silence in the wake of these warnings may be nothing more than the arrestee's exercise of * * * [his] Miranda rights. Thus, every post-arrest silence is *129 insolubly ambiguous because of what the State is required to advise the person arrested. * * * In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial."
Later in the Doyle opinion, at 619, fn. 10, the court supplemented the foregoing view by stating:
"After an arrested person is formally advised by an officer of the law that he has a right to remain silent, the unfairness occurs when the prosecution, in the presence of the jury, is allowed to undertake impeachment on the basis of what may be the exercise of that right."
In an earlier case, United States v. Hale (1975),
In Doyle, the Supreme Court found that due process of law required application of this prohibition to state criminal trials. Confirming the premise underlying the Hale decision, theDoyle court, at 618, fn. 8, noted that "silence at the time of arrest [is] likely to be ambiguous and thus of dubious probative value." See, also, Fletcher v. Weir, supra, at 604-605.
In the instant case, the state argues that once appellant "opened the door" through his statements on direct examination, the prosecution then had the right to use, as a basis for impeaching appellant's credibility and veracity, his silence following the Miranda warnings. The state also asserts that cross-examination into appellant's post-Miranda warning silence, even if it was error, was merely "cumulative" in nature, and therefore innocuous. We find no merit in these contentions, and for reasons based on federal and Ohio decisions, we reject the state's position.
The state has premised its theory on the assumption that appellant's post-Miranda warning silence was patently inconsistent with his exculpatory testimony. Accepting,arguendo, the correctness of this assumption, his silence is then asserted to be a form of prior "statement," which, by analogy, is subject to traditional rules governing impeachment of a witness's trial testimony through the use of prior inconsistent statements.
Common-law strictures held silence in the face of accusation admissible for impeachment use only if, in light of the circumstances in which the accusation was made, a reply was naturally forthcoming or it would be reasonable to expect a denial if the accusatory statement were not true. 3A Wigmore, Evidence (Chadbourn Rev., 1970), Section 1042; cf. 4 Wigmore, Evidence (Chadbourn Rev. *130
1972), Section 1072; McCormick, supra, at 652, Section 270. The prior silence must have been such as to amount to an unambiguous acquiescence in, or assent to, the accusatory statement. Id.
Moreover, a statement made in the presence of a party heard and understood by him, to which he could have responded, but did not, is frequently cited as a pristine instance of a tacit admission. 4 Wigmore, supra, at
Impeachment was similarly permitted by reference to a person's previous failure to assert a fact under circumstances in which it would have been natural for him to do so. 3A Wigmore, supra, at 1056-1058, Section 1042; McCormick, supra, at 353, Section 161; cf. Jenkins v. Anderson (1980),
Today, of course, the Miranda decision precludes thesubstantive use of a defendant's silence during police interrogation to prove his guilt. Miranda v. Arizona, supra, at 468, fn. 37. Yet, even before the Miranda decision, trial courts in Ohio were required to use extreme caution when the prosecution offered what was purportedly a defendant's admission by silent assent. "It is not every instance of silence in the hearing of accusation that renders it admissible, as admitting guilt." SeeGeiger v. State (1904),
Ohio evidentiary law has also recognized the rule permitting impeachment through use of a defendant's prior statements or prior conduct inconsistent with his present statements at trial. In Dilcher v. State (1883),
"Where the foundation is laid for contradicting a witness, by * * * [out-of-court conduct] inconsistent with his testimony upon a material matter, and such conduct * * * is susceptible of different meanings, one of which would be inconsistent with the truth of such testimony, it is admissible in evidence, leaving the jury to determine which is the true meaning, and to exclude such evidence is error."
The Dilcher court intimated that the proponent of the impeaching evidence must initially show that the prior conduct sought to be admitted is genuinely contradictory to in-court testimony, thereby establishing a threshold inconsistency between the two. Accord United States v. Hale, supra, at 176. Presumably, if this foundational requirement were met, the prior inconsistent conduct would be received as impeaching evidence, and the question of veracity would go to the jury. Dilcher, supra, at 136.
We have some doubt whether the prosecution in the case subjudice actually established, or even attempted to establish, a threshold inconsistency between appellant's post-Miranda warning silence and his exculpatory testimony. Nonetheless, the Dilcher
holding has been circumscribed so severely by the constitutionalization of criminal procedure in recent times, and, in particular, by Doyle v. Ohio, that it has little, if any, continuing vitality in the present context.1 Indeed, theMiranda warnings are not something easily harmonized with any traditional suppositions underlying impeachment by use of prior silence. The warnings ostensibly leave an accused with a free choice "`to admit, to deny, or to refuse to answer.'" Garner v.United States (1976),
Beyond the fact that post-Miranda warning silence is rife with ambiguity, Doyle's progeny suggest that the warnings carry with them an implied promise that a defendant's decision to remain silent will not be turned against him at trial. Anderson v.Charles (1980),
"[After his arrest,] it is not uncommon [for an accused] to react by refusing to discuss the charges until a lawyer can be retained. Desire for friendly counsel and advice can be a major motivation at that time in the mind of one completely innocent of the charges, as well as one who subsequently may admit his guilt.
"His privilege at that time is silence. * * * [He] should not thereafter be penalized for his original refusal."
Or, it may be that an accused simply heeds the warning that "anything you say can and will be used against you in a court of law." Thus, to even suggest by way of cross-examination that a defendant's prior silence is somehow unfavorable to him at trial, or that it is inconsistent with innocence, is to invite prejudicial misuse through jury speculation on the import of such silence. This danger is only aggravated by the fact that juries are notoriously incapable of segregating from substantive evidence of guilt, the evidence or testimony admitted only for its impeachment value, even when they receive a specific instruction to that effect. Where post-arrest silence is the impeaching evidence, its prejudicial attributes are all too apparent.
In the Miranda opinion, the court at 468, fn. 37, stated the prohibition thusly:
"[I]t is impermissible to penalize an individual for exercising his
Were it otherwise, the right not to incriminate oneself could be asserted only at a prohibitive cost. Furthermore, in Doyle v.Ohio, even the dissenters conceded that prosecutorial comment on the fact that the defendant had exercised his right to remain silent, after receiving Miranda warnings, "overstepped permissible bounds." Id. at 633. In his dissenting opinion, at 634-635, Justice Stevens stated:
"Comment on the lack of credibility of the defendant is plainly proper; it is not proper, however, for the prosecutor to ask the jury to draw a direct inference of guilt from silence — to argue, in effect, that silence is inconsistent with innocence."
The logic of this view is fully accordant with the oft-quoted precept that "silence in the face of accusation is itself damning and will bode ill when presented to a jury." Miranda v. Arizona,supra, at 468.
We thus conclude that it was violative of due process of law under the
We further conclude that the same use of appellant's post-Miranda warning silence unconstitutionally impinged upon his privilege against compelled self-incrimination under Section
In reversing appellant's conviction, we give significant weight to the fact that this case was tried to a jury, rather than to the court. State v. Eubank (1979),
We acknowledge that wide latitude should be afforded prosecutors during their closing arguments to the jury. State v.Brand (1978),
Therefore, appellant's first assignment of error is well-taken. Having thus disposed of the first assignment of error, we find that appellant's third assignment of error is now rendered moot and is, for that reason, not well-taken.
"[T]he defendant testified, on direct examination, that when he left the scene of the murder, he intended to go to police.
"The prosecutor, in cross-examination, then asked him if he did tell the police, when he was arrested about an hour later, about the incident. *135
"The court finds such cross-examination and comment in closing argument was therefore not improper, as, to use the old cliche, `the defendant opened the door, and the prosecution was then permitted to walk in.'"
The state urges, and appellant concedes, that the United States Supreme Court's decision in Jenkins v. Anderson, supra, clearly leaves each state free to determine the admissibility of pre-arrest silence under its own rules of evidence. In Jenkins,
the Supreme Court held that the
"Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative. * * * [N]o governmental action induced [the defendant] to remain silent before arrest. The failure to speak occurred before * * * [the defendant] was taken into custody and givenMiranda warnings. Consequently, the fundamental unfairness present in Doyle [v. Ohio] is not present in this case."
Yet, the Supreme Court also cautioned:
"Our decision today does not force any state court to allow impeachment through the use of prearrest silence. Each jurisdiction remains free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial." Id. at 240.
The most salient fact of consequence in the Jenkins decision was that the defendant waited for two weeks after the incident in which he stabbed and killed a man before surrendering to police. In the case sub judice, appellant was apprehended by police shortly after he shot Williams. The record indicates that appellant arrived at the Stark residence at approximately 2:30 p.m. The record does not reveal the exact length of time he remained there, but it does show that Perkins Township Police arrested him at about 3:30 p.m.
We will not quibble over the difference in tenor, if any, between the trial court's interpretation that appellant said he "intended to go to police" and his actual trial testimony that he was "going to tell * * * [his] mother and then call the police." Suffice it to say that his in-court statement was merely a statement of intention, not a statement contradicting a prior, extrajudicial one. Notwithstanding this determination, the prosecutor's cross-examination cannot be so easily bifurcated into distinct segments of pre-arrest silence and post-Miranda warning silence. Having found that federal and Ohio constitutional limitations prohibit the use of appellant's post-Miranda warning silence, the only issue to resolve in this assignment is whether any Ohio evidentiary rule precluded the admission of appellant's pre-arrest silence for impeachment purposes.
Evid. R. 403 states in part:
"(A) Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury."
Simply stated, Evid. R. 403(A) establishes a mandatory rule of exclusion for relevant evidence, the probative value of which is substantially outweighed by the danger of unfair prejudice of the jury. This formulation of the rule is not a significant departure from prior Ohio law. See State v. Strodes (1976),
The facts of this case convince us that appellant's pre-arrest "silence" of approximately forty-five minutes is not *136 similarly as probative of credibility or recent fabrication as was the two weeks of silence that preceded the defendant's arrest in Jenkins v. Anderson. The temporal proximity of appellant's arrest and the act precipitating it were simply too close to make his "silence" sufficiently probative of an inconsistency with his in-court testimony to warrant cross-examination thereon. Moreover, the prejudicial aspects inherent in the use of appellant's pre-arrest conduct as "silence" are indeed plain. The same dangers of prejudicial jury misuse identified with post-Miranda warning silence exist with equal force in the context of pre-arrest silence. The potential for prejudice was merely exacerbated in view of the negligible amount of time that elapsed between the shooting and appellant's arrest by Perkins Township Police. Appellant testified that he left Fremont because he was scared and feared reprisal if he remained. His failure to volunteer an exculpatory statement to a police officer during the forty-five minutes or so preceding his arrest is attributable to other quite innocent reasons having nothing whatsoever to do with the truth or falsity of his trial testimony. One such reason may have been the very compelling instinct for self-preservation. Another reason may have been a feeling that any effort to exonerate himself by returning to Fremont would have only been futile or, possibly, worsened his situation. As we alluded to earlier, a jury is not necessarily amenable or sensitive to alternative explanations for the kind of pre-arrest "silence" exhibited here. Moreover, it would strain credulity to insinuate, by reference to that silence, that appellant was under a legal duty to inculpate himself in the presence of the nearest law enforcement authorities. Consequently, the prejudicial impact of using appellant's pre-arrest silence to impeach his credibility substantially outweighed its probative worth which, on these facts, was so low as to be minimal. In the context of this case and its facts, evidence of or reference to appellant's pre-arrest silence for purposes of impeachment, being substantially more prejudicial than probative, should have been excluded. Evid. R. 403(A), supra. The trial court's failure to do so was prejudicial error.
The better rule is for the trial court to determine, on a case-by-case basis, the precise circumstances under which a defendant's pre-arrest silence, when juxtaposed to his exculpatory testimony, is so genuinely inconsistent with it that references to such silence are probative of credibility or recent fabrication. Cf. Commonwealth v. Nickerson (1982),
Therefore, appellant's second assignment of error is well-taken. * * *4
"IV. The trial court erred in overruling appellant's motion in arrest of judgment and motion to dismiss indictment in that the indictment upon which the judgment of conviction was based is invalid and void and thus appellant was denied his constitutional rights afforded under Article
Appellant urges that because the indictment in this case was signed by the assistant prosecutor, rather than by the county prosecutor (Mr. Mayle), or in his name, it was rendered fatally defective and void as a matter of law.
Section
"[N]o person shall be held to answer for a * * * crime, unless on presentment or indictment of a grand jury."
Nowhere in the above-quoted section is there any constitutional requirement as to the manner in which an indictment is to be authenticated or by whom. However, the crux of appellant's objection to the validity of this indictment is found in Crim. R. 7(B), which provides in relevant part:
"The indictment * * * shall be signed by the prosecuting attorney or signed in his name by an assistant prosecuting attorney[.]"
Crim. R. 2 states in pertinent part:
"As used in these rules: * * *
"`Prosecuting attorney' means * * * the prosecuting attorney of a county * * * and the assistant or assistants of any of them. As used in Rule 6 [governing procedure in cases before the grand jury], `prosecuting attorney' means * * * the prosecuting attorney of a county, and the assistant or assistants of either of them."
However, R.C.
"An indictment * * * is not made invalid, and the * * * judgment, or other proceedings stayed, arrested, or affected:
"* * *
"(K) For * * * defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits."
The fact that the assistant prosecutor signed this indictment detracted not at all from its sufficiency as a matter of law. If the signature on the indictment could reasonably be said to carry the imprimatur of the county prosecutor, then the mere absence ofhis signature did not violate any of appellant's constitutional rights or otherwise infringe upon any of his substantial rights on the merits of this case. State v. Stone (1971),
"V. The trial court erred in returning the jury for further deliberations after the jury informed the court in writing that they felt there was insufficient evidence upon which to base a judgment and that the jury did not feel it could be fair in *138 either verdict and after the jury disclosed its deliberation status as being six votes for conviction and six votes for acquital [sic].
"VI. In view of the jury's insistence that it could not reach a fair verdict at the trial of this matter, the trial judge erred in failing to question the jury during the polling of the jury as to whether each juror was voting his convictions or whether he was voting contrary to his conviction so as just to reach a verdict in response to the trial court's remarks."
The record discloses that jury deliberations began at approximately 5:45 p.m. Forty-five minutes later the jury requested that the trial court reread the instructions of law pertaining to self-defense, which the court then did. The jury returned to its deliberations, and, at 9:15 p.m., it submitted a note to the court, which stated:
"After two votes we are deadlocked at six and six. We feel that the case has been bungled by both the police, defense, the prosecutor's office; that we have insufficient evidence upon which to base a judgment. There are too many loopholes in both sides of the evidence. We do not feel we could be fair in either verdict."
After reading the note into the record, the trial court stated:
"Now ladies and gentlemen, there is no more evidence that can be presented to you. Both sides have presented what they felt was the relevant evidence in the case.
"And presumably this Jury, a good hardworking Jury, can reach a verdict if any jury can.
"I would like you to go back and to discuss and decide whether or not you feel with more time — not necessarily tonight — it could be either tomorrow or Monday — there would be a likelihood of reaching a verdict. And, of course, you realize a verdict must be unanimous, twelve. And then please report back to the Court what your position is.
"Will you do that for me, please? Thank you."
At approximately 11:00 p.m., the jury returned a verdict of guilty.
Appellant argues that the trial court should have, sua sponte, declared a mistrial and discharged the jury upon receiving the above-quoted note. He contends that the trial court, in effect, force-marched the jury to a guilty verdict by insisting that "this Jury * * * can reach a verdict if any jury can" * * *
R.C.
"The trial court may discharge a jury without prejudice to the prosecution:
"* * *
"(B) Because there is no probability of such jurors agreeing: * * *"
In the instant case, after receiving the jury's note, the trial court asked the jury to decide whether there was a likelihood of reaching a verdict, informing them also that deliberations could extend over several days. As a general proposition, the law certainly encourages jurors to agree rather than deadlock, and urging a jury to make every reasonable effort to reach a verdict is not improper. Liska v. State (1926),
However, the facts here are indeed unique. The jury's note to the trial court revealed more than simply a difficulty in arriving at a verdict. This was not a case where the intransigence of a single juror frustrated the unanimity of a verdict. Reasonable doubt was clearly pervasive in the minds of six members of the jury. Standing alone, this fact should have alerted the trial court that it faced circumstances ladened with coercive potential. Juries generally do not and, of *139 course, should not, disclose the status of their deliberations in messages to the court. Second, the jury declared that it had insufficient evidence upon which to base a verdict. It then substantiated its collective opinion of the evidence with the statement that "there are too many loopholes in both sides of the evidence." Finally, the jurors clearly and explicitly announced that any verdict they might reach would not be fair. No leap of faith is needed to see that any subsequent verdict thus rendered would be, by their own protestations, an unfair one.
We feel the trial court genuinely intended only to urge agreement. Yet, its statements prejudicially intimated to the jurors that they should unanimously agree upon a verdict despite their expressed inability to decide the case fairly. Sending the jury back for further discussion or deliberation could only be taken by it as a signal that a unanimous verdict was the overriding consideration, regardless of fairness or the jurors' own perceptions of the case. No doubt the displeasing prospect of carrying deliberations over a weekend provided additional impetus to reach a quick consensus.
Moreover, the trial court's statements lacked the balance and proper cautionary language necessary to avoid the pernicious results for which the so-called "Allen charge" has been criticized and, in Ohio, rejected. State v. Maupin (1975),
"The giving of a neutral supplemental instruction, urging the jury to attempt to reach a verdict, upon notification by the jury to the court that it was having difficulty reaching an agreement after deliberations of two hours and twenty-nine minutes, with noother circumstance present with the potential of coercion of thejury, is not an abuse of discretion." (Emphasis added.)
The jury's explicit, unequivocal indication (1) that it was evenly deadlocked after a substantial period of deliberation, (2) that it lacked sufficient evidence to reach a verdict, and (3) that any verdict it might reach would be unfair are the attendant, aggravating circumstances needed to find that the jury's subsequent verdict was unduly coerced. The jury's note presented adequate indicia of its inability, not only to reach a verdict, but to reach a verdict which, in its opinion, would be fair to both parties. Hence, the court should have, sua sponte, declared a mistrial and discharged the jurors. Its failure to do so was prejudicial error.
"`* * * Ladies and gentleman of the jury: The court is advised that you have indicated difficulty in reaching a verdict. Now, the court suggests to you that since the trial of this case means a great deal to the parties and to the public, and has been expensive in time, effort, and money, the court urges you to make every reasonable effort to agree on a verdict.
"`You may consider that this case must at sometime be decided, and that you were selected in the same manner and *140 from the same source from which any future jury must be selected.
"`There is no reason to suppose that the case will ever be submitted to twelve individuals more intelligent, more impartial, or more competent to decide it, or that additional evidence will be produced by either side.
"`It is your duty to make every reasonable effort to decide the case if you can conscientiously do so. The court instructs you to return to the jury room and continue your deliberations.'" State v. Maupin, supra, at 482, fn. 3.
In addition, the following language, which was substantially incorporated into the trial court's general charge to the jury, should be re-emphasized in any supplementary instruction:
"`Consult with one another, consider each other's views and deliberate with the objective of reaching an agreement if you can do so without disturbing your individual judgment.
"`Each of you must decide this case for yourself. But you should do so only after a discussion and consideration of the case with your fellow jurors. Do not hesitate to change your opinion if you are convinced that it is wrong. However, you should not surrender honest conviction in order to be congenial or to reach a verdict solely because of the opinion of the other jurors.'" Id. at 484.
The purpose of the above-quoted instructions should be clear. Jurors are to be encouraged to reach agreement on a verdict if they can do so consonant with the dictates of their individual consciences. But a rush to judgment must be avoided, notwithstanding, as in this case, an explicit indication by the jury that any verdict it returned would not be a fair one. Accordingly, appellant's fifth assignment of error is well-taken. Having so ruled, we further find that appellant's sixth assignment is now rendered moot, and, consequently, it is not well-taken. * * *
On consideration whereof, the judgment of the Sandusky County Court of Common Pleas is hereby reversed. This case is remanded to said court for further proceedings.
Judgment reversed and case remanded.
CONNORS, P.J., concurs.
DOUGLAS, J., dissents.
"The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. * * * [The defendant's] credibility was appropriately impeached by use of his earlier conflicting statements." (Emphasis added.)
However, the line of cases represented by Harris v. New York is distinguishable precisely because the cases involve reference to prior extrajudicial statements made after arrest. In the case subjudice, the prosecutor introduced for impeachment purposes, not a prior affirmative statement, but rather the fact that appellanttold the police nothing when he was arrested, given the Miranda
warnings and questioned. In Anderson v. Charles (1980),
"Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarilyspeaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all." (Emphasis added.) See, also, State v. Osborne, supra.
Here, appellant made no statements to police after receiving theMiranda warnings. Nor did he claim to have made any during his direct examination. See Doyle v. Ohio, supra, at 619, fn. 11. The prosecutor's questions were not directed toward eliciting an explanation for a prior inconsistent statement to police, but toward producing by insinuations an unfavorable inference on the import of appellant's silence. This is exactly what we read the rule in Doyle to forbid.