State v. Mapes

¶1concurring. I join my brethren in affirming both the conviction and sentence in this cause. However, I fear that Part V of the majority opinion could be misread to imply that an accused waives his Fifth Amendment7 protection against self-incrimination by electing to exercise his statutory option of making an unsworn statement to the jury during the penalty phase of a capital proceeding.

¶2“In Griffin v. California (1965), 380 U.S. 609 [32 O.O.2d 437], the Supreme Court ruled as prejudicial direct comments upon the accused’s failure to take the stand. In so holding, the court recognized that to allow such comments would penalize an accused for exercising his constitutional right against self-incrimination.” State v. Ferguson (1983), 5 Ohio St. 3d 160, 162.

¶3Similarly, paragraph one of the syllabus in State v. Lynn (1966), 5 Ohio St. 2d 106 [34 O.O.2d 226], provides:

“Comment by the trial court or by the prosecutor upon the failure of an accused to testify in a criminal proceeding against him violates the self-incrimination clause of the Fifth Amendment made applicable to the states *120by the Fourteenth Amendment. (United States Supreme Court in Griffin v. California, 14 L. Ed. 2d 106.)” See, also, Lockett v. Ohio (1978), 438 U.S. 586 [9 O.O.3d 26]; Johnson v. United States (1943), 318 U.S. 189.

¶4The Fifth Amendment protection affording an accused the right to remain silent extends to every “criminal proceeding.” Lynn, supra.This safeguard undoubtedly embraces the penalty phase of capital cases where defendants compete with the prosecutors for their very lives.

¶5In exercise of his Fifth Amendment right to remain silent, appellant chose not to testify during either the guilt or penalty phases of his capital trial. However, appellant exercised his statutory right8 to make an unsworn statement to the jury during the sentencing phase only.9

¶6Pursuant to the express terms of the statute the prosecutor was forbidden to question appellant. The trial court properly advised the jury of appellant’s rights in this respect and explained that the state was statutorily precluded from cross-examination.

¶7In this regard it must be recognized that rather than modifying or creating an exception to the constitutional prohibition announced in Griffin, the Ohio Legislature merely provided a means whereby an accused could decide to make an unsworn statement in mitigation, not subject to cross-examination, without waiving his constitutional protection against self-incrimination and without incurring risk of a prosecutor arguing that his election to make such a statement is somehow evidence of guilt.

¶8The applicability of our holding in Lynnto such remarks made during a capital sentencing hearing was recently considered in State v. Jenkins (1984), 15 Ohio St. 3d 164. During closing argument of the penalty phase of Jenkins’ trial, the prosecutor stated:

“Let me make a note of something else while I talk about that statement [of Jenkins]. You notice, ladies and gentlemen, that throughout this trial, this part, as well as the previous part, their witnesses came in and the witness took the oath — .”

¶9At this point, “[t]he defense promptly objected and the objection was sustained. A contemporaneous motion for mistrial was denied. The court warned the prosecutor to abandon the argument arid then instructed the jury to disregard the prosecutor’s comments.” Id. at 216.

¶10*121On appeal Jenkins similarly claimed that the prosecutor’s comment constituted a constitutional violation of the rule set forth in Griffin v. California, supra, as expressly recognized by this court in State v. Lynn, supra.This court rejected Jenkins’ contentions by concluding that the prosecutor’s utterances did not constitute prejudicial reversible error because the cases relied on were inapposite.

¶11The distinction we made between Jenkinsand the earlier cases was based on the content of the statements within the circumstances presented. Neither our decision in Jenkinsnor our holding in the case sub judiee should be read as establishing a broad rule that the Fifth Amendment is inapplicable once an accused chooses to address the jury in the sentencing phase. Simply put, Jenkinsdoes not create a per se blanket exception whereby a prosecutor has unlimited privilege to comment unfavorably on a capital defendant’s choice to exercise a constitutional right. To the contrary, the purpose and protection of Griffin and Lynnare just as vital, if not more so, during the sentencing portion of a capital trial because a life is at stake. “Whether guilty or not, a defendant is entitled, as is every person charged with crime, to a fair trial.” State v. Petro (1947), 148 Ohio St. 473 [36 O.O. 152], paragraph twelve of the syllabus.

¶12In considering errors based on isolated remarks or testimony, a reviewing court must view the claim against the entire record. The Supreme Court of the United States has reminded us that:

“In reviewing criminal cases, it is particularly important for appellate courts to re-live the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure. To turn a criminal trial into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.” Johnson v. United States (1943), 318 U.S. 189, 202 (Frankfurter, J., concurring).

¶13As noted previously, central to our conclusion in Jenkinswas a full consideration of the circumstances. The determination of whether prosecutorial remarks violate constitutional rights requires more than a mere color-matching of cases. It requires a careful evaluation of all the circumstances surrounding the statements. Cf. Jenkins, supra, at 232.

¶14Such an evaluation reveals that in this case, as in Jenkins, the accused “… did not choose to remain silent. He exercised his option to speak.” Id. at 216. Additionally, the prosecutor’s comments concerning appellant’s credibility “… said nothing more than what the jury already knew to be true, namely, that all other … witnesses testified under oath and that appellant did not.” Id. at 217. The instant record also reflects that while the prosecutor did not cross-examine appellant, the defense was granted great leeway in the presentation of evidence: the court permitted defense counsel to develop appellant’s unsworn statement by questioning his client before the jury.

¶15Lastly, the court correctly instructed the jury on several occasions relative to the accused’s statutory right to make an unsworn statement. *122The court also instructed the jurors that counsels’ arguments did not constitute evidence. The court’s charge following closing arguments advised the jurors that they should consider all proper evidence including the unsworn statement of the appellant. In fact, during the course of their deliberations, the jurors requested and were read appellant’s entire unsworn mitigation statement without comment, to weigh and consider.

¶16This is undeniably a close question presented in the midst of a death penalty review which is always the most difficult of all appellate tasks. In a slightly different setting, offending remarks similar to those made in this proceeding could result in a different' resolution.

¶17However, under these circumstances, “… the prosecutor’s remarks, when reviewed in context, cannot be said to undermine the fairness of the trial and contribute to a miscarriage of justice.” United States v. Young (1985), 470 U.S__, 84 L. Ed. 2d 1, 15. Accordingly, I concur with today’s rejection of appellant’s contention.