[This decision has been published in Ohio Official Reports at
92 Ohio St.3d 191.]
THE STATE OF OHIO, APPELLANT, v. HILL, APPELLEE.
[Cite as State v. Hill, 2001-Ohio-141.]
Criminal law—Use of anonymous juries—Appellate review—When court of
appeals engages in a plain-error analysis, it must conduct a complete
review of all assignments of error in order to determine whether a
manifest miscarriage of justice has occurred that clearly affected the
outcome of the trial.
(No. 00-591—Submitted January 30, 2001—Decided July 5, 2001.)
APPEAL from the Court of Appeals for Fairfield County, No. 98CA67.
__________________
SYLLABUS OF THE COURT
When a court of appeals engages in a plain-error analysis, it must conduct a
complete review of all relevant assignments of error in order to determine
whether a manifest miscarriage of justice has occurred that clearly affected
the outcome of the trial.
__________________
ALICE ROBIE RESNICK, J.
I
Facts and Procedural History
{¶ 1} On September 15, 1997, Harry Sisco was shot and killed in front of
his home on South Broad Street in Lancaster, Ohio. Defendant-appellee, Clifton
Hill, the stepson of Harry Sisco, was indicted on September 25, 1997, on one count
of aggravated murder with two firearms specifications, one count of grand theft of
a motor vehicle, one count of fleeing and eluding, and one count of having weapons
while under disability with a firearm specification. Appellee pled not guilty to the
SUPREME COURT OF OHIO
charges, and a lengthy jury trial, in which thirty-five witnesses testified,
commenced on September 1, 1998.
{¶ 2} Testimony at trial established that appellee and Harry Sisco had been
involved in an argument at approximately 5:00 p.m. on September 15, 1997, and
that appellee had made threats against Harry Sisco. Several witnesses testified that
the argument had left Harry Sisco shaken and frightened.
{¶ 3} After the argument, appellee went to a bar, where the bartender heard
appellee talking to his mother on the telephone and making threats against Harry
Sisco. While appellee was at the bar, he showed an acquaintance a rifle shell and
asked the acquaintance if he thought it would be effective to “take him out.” On
cross-examination, the witness stated that he thought the “him” referred to in the
question was Richard Sisco, Harry Sisco’s cousin. (Richard Sisco and appellee had
recently had some disagreements, and those disagreements had apparently sparked
the argument between Harry Sisco and appellee earlier in the day.)
{¶ 4} From the bar, appellee spoke to his girlfriend, B.J. Avery, on the
telephone and asked her to come to the bar and to bring her car. Avery drove her
black Ford Probe to the bar and gave appellee her car keys. At about 5:30 p.m.,
appellee drove to the home of Terry Chandler and borrowed a box of ammunition
and a .243 Remington bolt-action rifle with a scope.
{¶ 5} Shortly before the murder, several people saw a small black car
(identified by at least one witness as a Ford Probe) drive by Harry Sisco’s home.
One of those people, Harry Sisco’s next-door neighbor Betty Lehman, saw and
spoke to Harry Sisco at about 6:35 or 6:40. Lehman observed that Harry Sisco was
upset and looked pale. When Lehman told Harry Sisco that he didn’t look good
and asked him what was wrong, Harry Sisco mentioned the fight he had had with
appellee that afternoon and that appellee had threatened him. Harry Sisco also told
her that he was afraid of appellee. Lehman, who had known Harry Sisco for fifteen
2
January Term, 2001
years, thought that was odd because she had found him to be a person who was not
afraid of anybody.
{¶ 6} While Lehman was speaking to Harry Sisco, he pointed out a small
black car driving by on the street and told her that appellee was inside. Lehman
observed that Harry Sisco was “scared to death” at this point. She told him that she
didn’t want to get in the middle of anything, and urged him to call 911. Lehman
then returned to her own home, got in her car, and started to back out of her garage
to run an errand.
{¶ 7} After she had backed out of her garage, Lehman heard a loud blast but
was not sure what it was. She continued onto the street and stopped at a red light
nearby. Then she saw people, including one person who was acting “frantically,”
in the front yard of Harry Sisco’s house. Lehman parked her car, ran across the
street, and came up to the front porch. When she got there, she saw Harry Sisco
lying face down in a shrub. Lehman ran to her house and called 911 at 6:47 p.m.
{¶ 8} Two witnesses who were sitting on a nearby front porch that evening
both saw a man in a dark car (identified by one as a black Ford Probe) move from
the driver’s side of the car to the passenger’s side. Both witnesses then heard a loud
bang. One of the witnesses testified that she saw the occupant of the vehicle move
back to the driver’s seat and drive away. She was not certain who the man in the
car was, but she remarked to the other person, “Did that look like Cliff, Harry’s
son, to you?” The other witness testified that after the bang, a woman was running
and shouting for someone to call 911 and that Harry Sisco had been shot.
{¶ 9} Terry Chandler retrieved the rifle from appellee later that evening. As
appellee handed Chandler the gun from the window of the car he was driving,
Chandler saw shells scattered on the seat of appellee’s car. Appellee also handed
the shells to Chandler. Appellee told Chandler not to tell anyone that he had seen
appellee at this time, and appellee drove away.
3
SUPREME COURT OF OHIO
{¶ 10} Chandler feared that Harry Sisco had been killed with his gun. He
did not report his encounter with appellee to the police. When the police later
questioned him, Chandler initially lied and told them he had thrown the gun into
the Ohio River. Chandler turned the gun over to police nearly six months after the
murder.
{¶ 11} On the evening of September 15, appellee asked to borrow an
acquaintance’s motorcycle. When permission was refused, appellee took the
motorcycle anyway and rode off. Appellee subsequently led police on a high-speed
chase and was eventually apprehended.
{¶ 12} When police searched Avery’s car, they found two rounds of .243
ammunition. A firearms expert for the state testified that at one time the rounds
had been chambered in Chandler’s rifle.
{¶ 13} At trial some stipulations were presented to the jury. One stipulation
was that appellee’s blood was drawn at 1:40 a.m. on September 16, 1997, and that
this sample revealed a blood-alcohol level of “0.14 grams percent by weight.”
Other stipulations included the following: (1) no gunpowder particles were found
on appellee’s glasses, hat, watch, or clothing; (2) no fingerprints were obtained
from the ammunition rounds found in Avery’s car; (3) only one usable fingerprint
was lifted from the car, and it was not appellee’s; (4) no usable fingerprints were
lifted from the rifle; (5) no usable fingerprints were lifted from the motorcycle; (6)
no gunshot residue was discovered in the car; and (7) no gunshot residue was
discovered on appellee, Harry Sisco, or Richard Sisco.
{¶ 14} After the state rested, appellee did not call any witnesses, and
appellee did not take the stand to testify to the jury. After deliberations, the jury
found appellee guilty of aggravated murder and of both specifications
accompanying that count, not guilty of grand theft of a motor vehicle, but guilty of
the lesser included offense of unauthorized use of a motor vehicle, guilty of fleeing
4
January Term, 2001
and eluding, and guilty of having weapons while under disability and the firearm
specification on that count.
{¶ 15} After appellee was sentenced, he appealed to the Court of Appeals
for Fairfield County, raising six assignments of error. The court of appeals reversed
the convictions, upholding two of appellee’s assignments of error and finding the
remaining four moot. As one ground for its decision, the court of appeals found
that reversal was warranted because the trial court committed “structural error” in
seating an anonymous jury for appellee’s trial, even though appellee had not
objected to the use of an anonymous jury.
{¶ 16} As another basis for its decision, the court of appeals determined that
appellee was penalized at trial for invoking his right to remain silent. The court of
appeals found that a police detective improperly testified at trial regarding
appellee’s invocation of the right and that the state improperly commented on
appellee’s invocation of the right in closing argument. The court of appeals found
that appellee did not object to the testimony, but determined that reversal was
warranted because plain error occurred.
{¶ 17} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
II
Anonymous Jury Issue
{¶ 18} The first issue we address is whether the utilization of an anonymous
jury at appellee’s trial constituted reversible error.
A
{¶ 19} The jury trial in this case was conducted in accordance with Loc.R.
1.14 of the Court of Common Pleas of Fairfield County. That rule, effective May
2, 1996, provides:
“GRAND JURY AND PETIT JURY LISTS—The names and addresses of
grand jurors and petit jurors will remain anonymous, except upon court order after
5
SUPREME COURT OF OHIO
a hearing and for good cause shown. The Clerk of Courts, the Jury Commission,
Jury Manager, Fairfield County Sherriff [sic], and the Court shall have access to
the names and addresses for administrative purposes. The Prosecutor may have
access to the names of the grand jurors on an as needed basis.”
{¶ 20} The introductory paragraph that accompanied the rule at the time it
was promulgated provided:
“In order to maintain secrecy of the grand jury proceedings and the privacy
of petit jurors, to alleviate the concern of the jurors for fear of intimidation and/or
harassment, to encourage jurors’ willingness to participate as jurors, and to fulfill
the Court’s promise of confidentiality, it is hereby ordered that Local Rule of Court
1.14, Jury Questionnaires, is hereby repealed and the Court establishes a new Local
Rule of Court 1.14 for the Common Pleas Court, General Division.”
{¶ 21} Both parties seemed to have acquiesced in the use of an anonymous
jury without raising any questions at trial about the practice. Appellee’s attorney
did not object to an anonymous jury, and there is no indication in the record that
the attorney sought to obtain the names or addresses of the jurors. The state also
did not object to the anonymous jury, and there is no indication in the record that
the state sought to receive the names or addresses of the jurors. An extensive jury
voir dire was conducted by both parties. Throughout the voir dire and the trial,
jurors were identified by number rather than by name.
{¶ 22} At the commencement of voir dire, the trial court made the following
statement to the prospective jurors:
“Ladies and gentlemen, as you’ve noticed, we have over 40 of you here
today. And we will be selecting 14 jurors, 12 jurors and two alternates. Also notice
that you are given a number. We used to have names and addresses and phone
numbers on our list of jurors that came in. And a year or so ago, the Court
decided—the Judges decided that a number of jurors asked to remain anonymous.
So we have slowly taken away addresses and phone numbers and now names, and
6
January Term, 2001
so you have a number. It’s not that we want to relate to you impersonally, it’s for
your anonymity, your privacy, so that people may not call you in any way. And
that way—but if anybody—we’ll talk about that later. But that’s the reason for it.
And counsel may refer to you as your number. They may refer to you as sir or
ma’am or something like that. Certainly, they would rather be more personal, but
with numbers, sometimes it appears to be more impersonal. But that’s the reason
for that.”
{¶ 23} Appellee argues that the use of an anonymous jury violated his rights
to the presumption of innocence, to a trial by jury, to a public trial, and to a trial by
a fair and impartial jury. See Section 2, Article III, United States Constitution
(“Trial of all Crimes … shall be by Jury”); Sixth Amendment to the United States
Constitution (“accused shall enjoy the right to a speedy and public trial”); Section
5, Article I, Ohio Constitution (“right of trial by jury shall be inviolate”); Section
10, Article I, Ohio Constitution (“party accused shall be allowed … a speedy
public trial by an impartial jury of the county in which the offense is alleged to have
been committed”).
{¶ 24} Because appellee did not object to the use of an anonymous jury, or
raise any issue regarding juror anonymity at trial, our precedents require us to ask
whether plain error occurred in this situation. Normally, an appellate court need
not consider an error that was not called to the attention of the trial court at a time
when the error could have been avoided or corrected by the trial court. State v.
Williams (1977), 51 Ohio St.2d 112, 117,
5 O.O.3d 98, 101,
364 N.E.2d 1364, 1367.
Accordingly, a claim of error in such a situation is usually deemed to be waived
absent plain error. See Crim.R. 52(B). “Notice of plain error … is to be taken
with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” State v. Long (1978),
53 Ohio St.2d 91,
7 O.O.3d
178,
372 N.E.2d 804, paragraph three of the syllabus.
B
7
SUPREME COURT OF OHIO
{¶ 25} The court of appeals found that it was not limited to applying a plain-error analysis to the anonymous jury situation at issue in this case. Instead, the
court of appeals determined that this was a situation to be reviewed under the
doctrine of “structural error.”
{¶ 26} In Neder v. United States (1999), 527 U.S. 1, 7-9,
119 S.Ct. 1827,
1833,
144 L.Ed.2d 35, 45-47, the United States Supreme Court recently
summarized the essentials of its jurisprudence regarding structural error:
“Rule 52(a) of the Federal Rules of Criminal Procedure, which governs
direct appeals from judgments of conviction in the federal system, provides that
‘[a]ny error, defect, irregularity or variance which does not affect substantial rights
shall be disregarded.’ Although this Rule by its terms applies to all errors where a
proper objection is made at trial, we have recognized a limited class of fundamental
constitutional errors that ‘defy analysis by “harmless error” standards.’ Arizona v.
Fulminante, 499 U.S. 279, 309 [
111 S.Ct. 1246, 1265,
113 L.Ed.2d 302, 331]
(1991); see Chapman v. California, 386 U.S. [18] 23 [
87 S.Ct. 824, 827-828,
17
L.Ed.2d 705, 710] (1967). Errors of this type are so intrinsically harmful as to
require automatic reversal (i.e., ‘affect substantial rights’) without regard to their
effect on the outcome. For all other constitutional errors, reviewing courts must
apply Rule 52(a)’s harmless-error analysis and must ‘disregar[d]’ errors that are
harmless ‘beyond a reasonable doubt.’ Id., at 24 [
87 S.Ct. at 828,
17 L.Ed.2d at
711].
“…
“We have recognized that ‘most constitutional errors can be harmless.’
Fulminante, supra, at 306 [
111 S.Ct. at 1263,
113 L.Ed.2d at 329]. ‘[I]f the
defendant had counsel and was tried by an impartial adjudicator, there is a strong
presumption that any other constitutiona[l] errors that may have occurred are
subject to harmless-error analysis.’ Rose v. Clark,
478 U.S. 570, 579 [
106 S.Ct.
3101, 3106,
92 L.Ed.2d 460, 471] (1986). Indeed, we have found an error to be
8
January Term, 2001
‘structural,’ and thus subject to automatic reversal, only in a ‘very limited class of
cases.’ Johnson v. United States, 520 U.S. 461, 468 [
117 S.Ct. 1544, 1549,
137
L.Ed.2d 718, 728] (1997) citing Gideon v. Wainwright,
372 U.S. 335 [
83 S.Ct. 792,
9 L.Ed.2d 799] (1963) (complete denial of counsel); Tumey v. Ohio,
273 U.S. 510
[
47 S.Ct. 437,
71 L.Ed. 749] (1927) (biased trial judge); Vasquez v. Hillery,
474
U.S. 254 [
106 S.Ct. 617,
88 L.Ed.2d 598] (1986) (racial discrimination in selection
of grand jury); McKaskle v. Wiggins,
465 U.S. 168 [
104 S.Ct. 944,
79 L.Ed.2d 122]
(1984) (denial of self-representation at trial); Waller v. Georgia,
467 U.S. 39 [
104
S.Ct. 2210,
81 L.Ed.2d 31] (1984) (denial of public trial); Sullivan v. Louisiana,
508 U.S. 275 [
113 S.Ct. 2078,
124 L.Ed.2d 182] (1993) (defective reasonabledoubt instruction).
“…
“Those cases, we have explained, contain a ‘defect affecting the framework
within which the trial proceeds, rather than simply an error in the trial process
itself.’ Fulminante, supra, at 310 [
111 S.Ct. at 1265,
113 L.Ed.2d at 331]. Such
errors ‘infect the entire trial process,’ Brecht v. Abrahamson,
507 U.S. 619, 630
[
113 S.Ct. 1710, 1717,
123 L.Ed.2d 353, 367] (1993), and ‘necessarily render a trial
fundamentally unfair,’ Rose,
478 U.S. at 577 [
106 S.Ct. at 3106,
92 L.Ed.2d at 470].
Put another way, these errors deprive defendants of ‘basic protections’ without
which ‘a criminal trial cannot reliably serve its function as a vehicle for
determination of guilt or innocence … and no criminal punishment may be
regarded as fundamentally fair.’
Id., at 577-578 [106 S.Ct. at 3106,
92 L.Ed.2d at
470].” (Emphasis sic.) See, also, State v. Esparza (1996),
74 Ohio St.3d 660, 661,
660 N.E.2d 1194, 1196 (noting that “structural error” is distinguishable from “trial
error,” and is not subject to harmless-error analysis).
{¶ 27} In arguing that the use of an anonymous jury was structural error,
appellee and supporting amici curiae point out the importance of jury trials to our
system of justice, as reflected in the Ohio and United States Constitutions, and in
9
SUPREME COURT OF OHIO
numerous court decisions. Appellee urges that the use of an anonymous jury
compromised appellee’s right to a jury trial to such a degree that the right was
effectively destroyed.
{¶ 28} Appellee and supporting amici curiae further endorse the court of
appeals’ finding of structural error by citing federal cases that considered whether
prejudicial error was present when anonymous juries were used. See, e.g., United
States v. Talley (C.A.6, 1999), 164 F.3d 989. The Talley court articulated that a
trial court “should not order the empaneling of an anonymous jury without ‘(a)
concluding that there is strong reason to believe the jury needs protection, and (b)
taking reasonable precautions to minimize any prejudicial effects on the defendant
and to ensure that his fundamental rights are protected.’ “
Id. at 1001, quoting
United States v. Paccione (C.A.2, 1991),
949 F.2d 1183, 1192. See, also, United
States v. Krout (C.A.5, 1995),
66 F.3d 1420, 1427 (“Factors that may justify jury
protection by anonymity include: [1] the defendants’ involvement in organized
crime; [2] the defendants’ participation in a group with the capacity to harm jurors;
[3] the defendants’ past attempts to interfere with the judicial process or witnesses;
[4] the potential that, if convicted, the defendants will suffer a lengthy incarceration
and substantial monetary penalties; and [5], extensive publicity that could enhance
the possibility that jurors’ names would become public and expose them to
intimidation and harassment”); United States v. Sanchez (C.A.5, 1996),
74 F.3d 562
(same).
{¶ 29} We of course agree with appellee’s view that the right to a public
jury trial, and the other associated rights appellee mentions, are very important and
basic rights. However, we decline to hold that structural error is present in every
situation in which those fundamental rights are allegedly limited in any way. We
note that appellee’s trial was open to the public and that newspaper reporters were
present.
10
January Term, 2001
{¶ 30} Appellee’s failure to express any disagreement whatsoever at trial to
the use of an anonymous jury is the key factor that distinguishes this case from the
federal cases on juror anonymity cited by appellee. In many of those cases, juror
anonymity was contested at trial, and the trial courts decided to use anonymous
juries after being made aware of the defendants’ protestations that fundamental
rights were being compromised.
{¶ 31} Due to appellee’s failure to raise the anonymity issue at trial, we
decline to consider the propriety of the anonymous-jury local rule, even though we
recognize that the rule implicates important concerns that would clearly be worthy
of review by this court if the issue had been properly presented.1 See Work v. State
(1853), 2 Ohio St. 296, 303 (“the right of trial by jury … justly demands our
jealous scrutiny when innovations are attempted to be made upon it”).
{¶ 32} At its heart, the concept behind structural error is that certain errors
are so fundamental that they obviate the necessity for a reviewing court to do a
harmless-error analysis. However, it is arguable whether the harmless-error/structural-error distinction discussed in cases such as Neder (in which an
objection was lodged) should also apply to a plain-error case in which no objection
was raised at trial. In Johnson v. United States, 520 U.S. at 466,
117 S.Ct. at 1548,
137 L.Ed.2d at 727, a case in which a criminal defendant argued that an unobjected- to error was structural, and therefore outside the plain-error strictures of
1. At oral argument, a question arose as to whether Loc.R. 1.14 of the Common Pleas Court of
Fairfield County was adopted in accordance with C.P.Sup.R. 5(A)(2), which requires notice and an
opportunity for comment to accompany the adoption of a local rule of practice. The record of
proceedings below in the trial and appellate courts contains little mention of the local rule and
therefore sheds no light on the circumstances surrounding the rule’s adoption. This, more than
anything, demonstrates that the propriety of an anonymous jury simply was not an issue in the trial
of this case. It appears that appellant’s memorandum in support of jurisdiction in this court is the
first time that the local rule’s text was attached to anything filed by either party in the entire course
of this litigation.
11
SUPREME COURT OF OHIO
Fed.R.Crim.P. 52(b),2 the United States Supreme Court cautioned against
“unwarranted expansion” of Fed.R.Crim.P. 52(b), and stated that even claims of
serious error did not fall outside the scope of that rule. The Johnson court reasoned
that expanding Rule 52(b) “ ‘would skew the Rule’s “careful balancing of our need
to encourage all trial participants to seek a fair and accurate trial the first time
around against our insistence that obvious injustice be promptly redressed.” ’ ” Id.,
quoting United States v. Young (1985),
470 U.S. 1, 15,
105 S.Ct. 1038, 1046,
84
L.Ed.2d 1, 12-13, in turn quoting United States v. Frady (1982),
456 U.S. 152, 163,
102 S.Ct. 1584, 1592,
71 L.Ed.2d 816, 827. The Johnson court further found that
it had no authority to create a “structural error exception” to the rule, and seemed
to hold that, in direct appeals from federal convictions, a structural error analysis is
inappropriate in a plain-error situation.
520 U.S. at 466,
117 S.Ct. at 1548,
137
L.Ed.2d at 727.
{¶ 33} Nevertheless, assuming that a structural-error analysis may possibly
apply in an egregious plain-error situation, we find that in the circumstances of this
case, the seating of an anonymous jury was not structural error. The use of an
anonymous jury does not necessarily involve the violation of a fundamental right.
There is no unqualified constitutional right to know the identity of jurors. In the
instant case, the seating of an anonymous jury did not necessarily render the trial
so fundamentally unfair that it could not be a reliable vehicle for the determination
of appellee’s guilt or innocence. See Rose, 478 U.S. at 577-578,
106 S.Ct. at 3106,
92 L.Ed.2d at 470. We find that this case does not present an example of a violation
of a fundamental constitutional right that would lead to the basic unfairness that
was present in cases such as Gideon, Tumey, Vasquez, McKaskle, Waller, or
Sullivan. We do not believe that the anonymous jury rule impinges on fundamental
2. Fed.R.Crim.P. 52(b) is an exact counterpart of Ohio’s Crim.R. 52(B). Both rules provide that
“[p]lain errors or defects affecting substantial rights may be noticed although they were not brought
to the attention of the court.”
12
January Term, 2001
rights in the same way as the deprivation of counsel in Gideon, or the biased trial
judge in Tumey, or the racial discrimination in Vasquez. Accordingly, to the extent
that the court of appeals held that structural error warrants the reversal of appellee’s
convictions, we reverse that judgment.
C
{¶ 34} Because this is not a structural-error situation, we must proceed to
consider whether plain error occurred in the use of an anonymous jury. A thorough
review of the record reveals no hints of any prejudice to appellee flowing from the
use of an anonymous jury. The trial court explained to the potential jurors at the
outset of voir dire that anonymity was the rule for all trials in that court, making
clear that anonymity was not being invoked to prevent them from being harmed by
this particular defendant. An extensive voir dire of the potential jurors was
conducted, and we can find no indications in the record that appellee’s attorney’s
efforts to seat an acceptable jury were impeded in any way by the unavailability of
the names and addresses of jurors.
{¶ 35} Indeed, we would be hard-pressed to determine from this record that
any error occurred in the seating of an anonymous jury, the starting point for a
plain-error inquiry. See Crim.R. 52(B). See, also, United States v. Olano (1993),
507 U.S. 725, 732,
113 S.Ct. 1770, 1776,
123 L.Ed.2d 508, 518 (first condition to
be met in noticing plain error is that there must be error). Since appellee has failed
to persuade us that any error occurred in the use of an anonymous jury, we agree
with the court of appeals that appellee falls well short of demonstrating “plain error”
warranting reversal.
13
SUPREME COURT OF OHIO
III
Appellee’s Statement
{¶ 36} The second major issue we address is whether plain error occurred
when the state used at trial appellee’s statement made to a police officer that
appellee was “not saying anything.” This statement was conveyed to the jury by a
police officer who testified for the state, and by the state’s mention of the statement
in closing arguments.
A
{¶ 37} As its final witness, not long before the conclusion of the state’s
presentation of evidence, the state called Lancaster Police Detective David W.
Bailey, who had interviewed appellee on September 15 after he was arrested.
Bailey was asked on direct examination about an exchange he and appellee had had
after appellee signed a Miranda rights waiver and before appellee made a tape-recorded statement. The prosecutor asked, “And during that pre-interview, when
you confronted [appellee] about the homicide, the murder of Harry Sisco, what, if
anything did he say?” Bailey responded, “I told him that Harry Sisco was the victim
of a shooting homicide and he told me that’s the first time that he heard it, that that
had taken place. I then confronted him with some of the meager information that I
had at that point about him being seen in the area, also about the argument prior to
the homicide. And his exact words to me at that point were, ‘You do what the fuck
you have to. I’m not saying anything.’ “
{¶ 38} The state then prepared to play appellee’s tape-recorded statement
to the jury. At this point, in his first challenge to the recording, appellee’s attorney
objected, arguing that once appellee said that he was “not saying anything,” all
questioning should have ceased and that therefore the tape recording should be
suppressed. The trial court decided to entertain appellee’s late challenge to the
recording (see Crim.R. 12[G]), excused the jury, and conducted an extensive
hearing, which included a voir dire of Bailey and appellee regarding the
14
January Term, 2001
conversation. After the hearing, the 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.
{¶ 39} 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.
{¶ 40} 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
{¶ 41} 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
15
SUPREME COURT OF OHIO
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[B]), rather than under the standards for harmless error
(see Crim.R. 52[A]).
{¶ 42} 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.
{¶ 43} 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 295, 106 S.Ct. at 637-638, 88 L.Ed.2d at 632. In Rogers, the
factual scenario was virtually identical to that of Wainwright v. Greenfield, in that
the state had used the defendant’s silence to rebut his claim of insanity. This court
in Rogers reconsidered its earlier affirmance of the defendant’s conviction in light
of Wainwright v. Greenfield, reversed the defendant’s conviction, and ordered a
new trial. Id. at 74,
512 N.E.2d at 585.
16
January Term, 2001
{¶ 44} The court of appeals in this case concluded that “it was plain error
to permit testimony and argument on [Hill’s] invocation of his right to remain
silent.” In so concluding, the court of appeals reasoned that the error was
“tantamount to a Doyle violation.” The court of appeals appears to have determined
that this situation involved such obvious plain error that it saw no need to consider
in depth the record developed at trial to determine if a manifest miscarriage of
justice occurred. For want of a better term, it seems accurate to label the manner
in which the court of appeals resolved this issue as a “plain error per se” resolution.
Such an approach is inconsistent with the concept of plain error and has no support
in our precedents.
{¶ 45} We specifically disagree with this reasoning of the court of appeals
that some type of plain error per se is present in this situation. Neither Doyle,
Wainwright v. Greenfield, nor Rogers mandates a summary finding of plain error
in this case that would allow a reviewing court to dispense with the full plain-error
inquiry. To the extent that the court of appeals applied a “plain error per se” rule
to this asserted error, we find its analysis to be flawed. This error should be assessed
under the same plain-error standards that are set forth in Part II of this opinion.
C
{¶ 46} As part of the inquiry into whether plain error occurred, a reviewing
court “must examine the error asserted by the [defendant] in light of all of the
evidence properly admitted at trial and determine whether the jury would have
convicted the defendant even if the error had not occurred.” State v. Slagle (1992),
65 Ohio St.3d 597, 605,
605 N.E.2d 916, 925. Reversal is warranted only if the
outcome of the trial clearly would have been different absent the error. See Long,
53 Ohio St.2d 91,
7 O.O.3d 178,
372 N.E.2d 804, paragraph two of the syllabus.
In addition, plain error should be found only in exceptional circumstances and only
to prevent a manifest miscarriage of justice.
Id. at paragraph three of the syllabus.
17
SUPREME COURT OF OHIO
{¶ 47} An assessment of whether plain error occurred in the situation at
issue is hampered by the manner in which the court of appeals disposed of other
claims of error raised in that court by appellee. The court of appeals found four of
appellee’s assignments of error to be moot in light of its rulings on the two it chose
to address. Given that we disagree with the way the court of appeals ruled on those
two assignments of error, several of the issues raised within the unaddressed
assignments of error might affect a plain-error inquiry. Consistent with Slagle, 65
Ohio St.3d at 605,
605 N.E.2d at 925, this inquiry requires a reviewing court to
assess appellee’s assertions of error in allowing testimony and comment on his
exercise of his right to remain silent “in light of all of the evidence properly
admitted at trial.” (Emphasis added.)
{¶ 48} It is virtually impossible to perform this assessment because the
finding of mootness by the court of appeals left unresolved the issue of exactly what
evidence properly was admitted at trial. Only after that issue is decided can a
complete inquiry be conducted into whether plain error occurred. Furthermore,
given our determination that no plain error requiring summary reversal occurred in
admitting appellee’s statement that he was not talking, those unaddressed
assignments of error must be evaluated in their own right to determine their effect,
if any, on the plain-error inquiry discussed above.
{¶ 49} It is urged that this court should remand the cause to the court of
appeals for further consideration in the event that this court reverses the judgment
of the court of appeals on the issues that court found dispositive. We agree that
remand is appropriate and necessary for a complete analysis under the plain-error
doctrine. Therefore, we remand this cause to the court of appeals to consider the
unaddressed assignments of error and to proceed as warranted to an assessment of
plain error, in light of the resolution of those assignments of error that are pertinent
to that inquiry.
18
January Term, 2001
{¶ 50} For the foregoing reasons, we hold that when a court of appeals
engages in a plain-error analysis, it must conduct a complete review of all relevant
assignments of error in order to determine whether a manifest miscarriage of justice
has occurred that clearly affected the outcome of the trial.
{¶ 51} Accordingly, the judgment of the court of appeals is reversed in part,
and the cause is remanded to the court of appeals for further proceedings.
Judgment reversed in part
and cause remanded.
DOUGLAS, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
MOYER, C.J., and COOK, J., concur in judgment.
PFEIFER, J., dissents.
__________________
COOK, J., concurring in judgment.
{¶ 52} I agree with the majority that the instant case warrants reversal and
a remand for further proceedings. I must respectfully disagree, however, with two
aspects of the majority’s analysis.
I
{¶ 53} The majority concludes in Part II(C) that “[a] thorough review of the
record reveals no hints of any prejudice to appellee flowing from the use of an
anonymous jury.” In that same section, the majority also states with no detailed
analysis that “we would be hard-pressed to determine from this record that any error
occurred in the seating of an anonymous jury.” (Emphasis sic.) I would rather
eliminate the need to analyze both whether error occurred and whether it was
prejudicial by deciding that use of the anonymous jury is not plain error on the basis
that the alleged error is not plain.
{¶ 54} In my recent dissent in State v. McKee (2001), 91 Ohio St.3d 292,
299,
744 N.E.2d 737, 743, I noted that the United States Supreme Court has
identified four considerations that apply to a plain-error inquiry:
19
SUPREME COURT OF OHIO
“First and most fundamentally, there must be error, i.e., a deviation from a
legal rule. [United States v. Olano (1993), 507 U.S. 725, 732-733,
113 S.Ct. 1770,
1777,
123 L.Ed.2d 508, 518.] Second, the error must be plain. To be plain, the
error must be ‘ “clear” or, equivalently, “obvious.” ‘
Id. at 734, 113 S.Ct. at 1777,
123 L.Ed.2d at 519, citing [United States v. Young (1985),
470 U.S. 1, 17,
105 S.Ct.
1038, 1047,
84 L.Ed.2d 1, 13, fn. 14]. Third, the error must affect substantial rights.
In most cases, this means that the error must have affected the outcome of the trial.
Olano,
507 U.S. at 734,
113 S.Ct. at 1777-1778,
123 L.Ed.2d at 519-520.”
{¶ 55} If a party satisfies the three foregoing conditions, a reviewing court
then has the discretion to correct the plain error. McKee, 91 Ohio St.3d at 299-300,
744 N.E.2d at 743-744 (Cook, J., dissenting).
{¶ 56} A reviewing court neither has to decide whether a party can satisfy
each prong of the plain-error inquiry nor has to answer each prong in order. See
Johnson v. United States (1997), 520 U.S. 461, 469-470,
117 S.Ct. 1544, 1550,
137
L.Ed.2d 718, 728-729 (declining to resolve whether an error “affec[ted] substantial
rights” because the error did not “seriously affec[t] the fairness, integrity or public
reputation of judicial proceedings”). Therefore, unlike the majority, I would decide
this case on Hill’s failure to satisfy the second prong of the plain-error inquiry: the
error must be plain. In addressing this prong, “[s]everal federal appellate courts
applying the Olano analysis have held that an error cannot be deemed plain if there
is no controlling case law on point and the authority in other circuits is split. Simply
put, if the law is unclear on a particular issue at the time of trial and remains that
way at the time of appeal, the error cannot be plain and should not be noticed under
Crim.R. 52(B).” (Citations omitted; emphasis added.) McKee,
91 Ohio St.3d at
300-301, 744 N.E.2d at 744 (Cook, J., dissenting).
{¶ 57} Here, it was not clear either at the time of trial or appellate review
that use of an anonymous jury violated Hill’s constitutional rights. Neither the
United States Supreme Court, this court, nor the Fifth District Court of Appeals had
20
January Term, 2001
issued controlling case law on point. Therefore, no reviewing court could properly
find error through a plain-error analysis. Even assuming arguendo that use of the
anonymous jury was error, it was not plainly so in this instance.
II
{¶ 58} In addressing the state’s solicitation of testimony regarding Hill’s
statements and the state’s comments on Hill’s invocation of his right to silence, the
majority says that “[f]or want of a better term, it seems accurate to label the manner
in which the court of appeals resolved this issue as a ‘plain error per se’ resolution.”
I agree with this statement only to the extent that it appears that the court of appeals
failed to consider the alleged errors within the full context of the trial proceedings.
This is analytic error necessitating remand. See Young, 470 U.S. at 11-12,
105
S.Ct. at 1044,
84 L.Ed.2d at 10 (inappropriate prosecutorial remarks must be
examined within the context of the trial to determine whether plain error exists);
State v. Treesh (2001),
90 Ohio St.3d 460, 480,
739 N.E.2d 749, 771 (improper
testimony that a defendant requested an attorney during police interview can be
harmless within the context of the trial).
{¶ 59} The majority, however, goes on to state that a plain error per se
approach “is inconsistent with the concept of plain error.” But the validity of a
“plain error per se” approach is not well settled and should not be dismissed as an
impossibility without fuller analysis. Compare Young, 470 U.S. at 16,
105 S.Ct. at
1047,
84 L.Ed.2d at 13, fn. 14 (“A per se approach to plain-error review is flawed,”
because it “could well lead to having appellate courts indulge in the pointless
exercise of reviewing ‘harmless plain errors’ “) with Olano,
507 U.S. at 734-735,
113 S.Ct. at 1778,
123 L.Ed.2d at 519-520 (suggesting in dicta that there may be
three potential categories of forfeited errors that can be recognized under plain-error analysis, including those forfeited errors that “can be corrected regardless of
their effect on the outcome” and those forfeited errors that “should be presumed
prejudicial if the defendant cannot make a specific showing of prejudice”). Given
21
SUPREME COURT OF OHIO
the arguable possibility of such an approach, I decline to adopt or reject outright
that plain error per se could exist under Crim.R. 52(B) without fuller analysis.
III
{¶ 60} I concur with the majority’s view that no structural error occurred in
this case. I also agree with the majority’s decision to reverse and remand for further
consideration of whether those alleged errors related to Hill’s invocation of his right
to silence constitute plain error, to the extent that the court of appeals should apply
Olano.
MOYER, C.J., concurs in the foregoing opinion.
__________________
PFEIFER, J., dissenting.
{¶ 61} In Work v. State (1853), 2 Ohio St. 296, 304, this court stated when
discussing the right to trial by jury: “An institution that has so long stood the trying
tests of time and experience, that has so long been guarded with scrupulous care,
and commanded the admiration of so many of the wise and good, justly demands
our jealous scrutiny when innovations are attempted to be made upon it.” That was
one hundred and forty-eight years ago, and until Loc.R. 1.14 of the Fairfield County
Common Pleas Court was amended on May 2, 1996, there had been no tradition of
anonymous juries in Ohio.
{¶ 62} Federal courts have allowed anonymous juries when “ ‘there is
strong reason to believe the jury needs protection’ and the district court ‘tak[es]
reasonable precautions to minimize any prejudicial effects on the defendant and to
ensure that his fundamental rights are protected.’ ” United States v. Krout (C.A.5,
1995), 66 F.3d 1420, 1427, quoting United States v. Wong (C.A.2, 1994),
40 F.3d
1347, 1376. See, also, United States v. Talley (C.A.6, 1999),
164 F.3d 989, 1001.
The federal appellate courts have required district courts to justify the use of
anonymous juries by considering:
22
January Term, 2001
“(1) the defendants’ involvement in organized crime; (2) the defendants’
participation in a group with the capacity to harm jurors; (3) the defendants’ past
attempts to interfere with the judicial process or witnesses; (4) the potential that, if
convicted, the defendants will suffer a lengthy incarceration and substantial
monetary penalties; and, (5) extensive publicity that could enhance the possibility
that jurors’ names would become public and expose them to intimidation and
harassment.” Krout, 66 F.3d at 1427; United States v. Sanchez (C.A.5, 1996), 74
F.3d 562, 564.
{¶ 63} The use of anonymous juries in our state may in certain
circumstances be appropriate after full consideration of these factors. However,
nothing in the state’s brief or oral argument in this case convinces me that
anonymous juries ought to be routine. To the contrary, as Justice Ranney noted so
long ago, innovations such as anonymous juries should be carefully scrutinized.
Work, 2 Ohio St. at 304.
{¶ 64} As a practical matter, reviewing the names and addresses of jurors
can provide invaluable information to counsel. Such information can help counsel
determine whether the relative of a juror has recently been involved in a criminal
matter either as a defendant or a victim and whether any jurors live in high- or lowcrime areas. It is also possible that a juror’s name will sound an alarm that the juror
should be questioned further. See Abramovsky & Edelstein, Anonymous Juries:
In Exigent Circumstances Only (1999), 13 St. John’s J. Legal Comment. 457, 476-
479 (use of anonymous juries impairs ability to make intelligent use of peremptory
challenges to uncover hidden bias or interest).
{¶ 65} The court of appeals stated, and I agree, that “[t]he anonymous jury
system is a significant alteration in the way jury trials have been conducted in this
state. Although [this information is] not contained in the record, one can theorize
[that] this carte blanche anonymous jury system is a result of the trial court’s
concern for accommodating jurors who may be hesitant or timid about jury service.
23
SUPREME COURT OF OHIO
Although the concern exhibited by the trial court is laudable in some respects, it
nonetheless flies in the face of history, precedent, custom and the federal cases.”
{¶ 66} Anonymous juries significantly diminish the right to a trial by jury
by preventing access to information necessary for voir dire. Allowing anonymous
juries is structural error because anonymous juries affect “ ‘the entire conduct of
the trial from beginning to end’ ” and “ ‘the framework within which the trial
proceeds.’ ” State v. Esparza (1996), 74 Ohio St.3d 660, 661,
660 N.E.2d 1194,
1196, quoting Arizona v. Fulminante (1991),
499 U.S. 279, 309-310,
111 S.Ct.
1246, 1265,
113 L.Ed.2d 302, 331.
{¶ 67} Accordingly, I dissent and would grant a new trial.
__________________
David L. Landefeld, Fairfield County Prosecuting Attorney, and Gregg
Marx, Assistant Prosecuting Attorney, for appellant.
Carol A. Wright; Vorys, Sater, Seymour & Pease LLP, James E. Phillips
and Timothy W. Hoover, for appellee.
Dan Gattermeyer, Butler County Prosecuting Attorney, and Daniel G.
Eichel, Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio
Prosecuting Attorneys Association.
Kohrman Jackson & Krantz P.L.L. and James B. Rosenthal; Raymond
Vasvari, urging affirmance for amicus curiae American Civil Liberties Union of
Ohio Foundation, Inc.
Baker & Hostetler LLP, David L. Marburger and Gina A. Brickley, urging
affirmance for amicus curiae Ohio Coalition for Open Government.
Lucy Dalglish, Gregg Leslie and Ashley Gauthier; Cohn & Marks, Richard
Schmidt and Kevin M. Goldberg; Baker & Hostetler LLP, Bruce W. Sanford, Robert
D. Lystad and Bruce D. Brown, urging affirmance for amici curiae Reporters
Committee for Freedom of the Press, American Society of Newspaper Editors, and
the Society of Professional Journalists.
24
January Term, 2001
__________________
25
