State v. Schaub

¶1'The sole issue for determination is whether the .actions of trial. counsel for the state in informing the defense witness of his Fifth Amendment right, to remain"'silent,. calling the ,court’s attention to-'possible difficulties with the defendant’s testimony, and ¡the'trial court’s subsequent rulings thereon,"weie ^prejudicial fo-the defendant’s rights under the Sixth Amendment and-Section 10, Articlé 'I, Ohio Constitution, to obtain witnesses in his favor. ' ; ; ■•'..,•• ' :

¶2..In Hoffman v. United States. (1951), 341 U. S. 479, 486, the United States. Supreme Court stated with ‘respect to a witness’s'-privilege against. self-incrimination: : •

¶3“… * It is for the court to say whether his silence is justified, Rogers v. United States, 340 U. S. 367 (1951), and to require him to answer if. ■ it "clearly -appears to the court that he is mistaken.’ Temple v. Commonwealth, 75 Va. 892, 899 (1881).”

¶4The court stated further, at page 488, that it must be U* ■* f -tiperfectly clear,: from- a-oarefuT consideration of all the circumstances in.the case, that-the' witness Is-mistaken, and the answer[s] cannot possibly have such tendency’ to incriminate. *.… [Citations omitted.]” s ’ '/

¶5.. .. Front a review.of the record, this, court agrees.with the Court of Appeals that “ [t]here is evidence that Everett was a companion and accompanied the defendant the night before the killing, and during the intervening time up to the time of the killing. Any statement Everett made under oath during the trial of defendant could be used against him upon a subsequent trial of his own. The trial court *28had a duty to protect the constitutional rights of Everett as well as to ensure defendant a fair trial. The trial court could not compel Everett to testify, and to have done so, or in any way coerce Everett, would have been reprehensible. …” See Hoffman v. United States, supra.

¶6With regal’d to the prosecution’s conduct herein, the instant case is distinguishable from the recent case of United States v. Smith (C. A. D. C. 1973), 478 F. 2d 976, which involved a similar fact situation. In that case the court, reversing defendants’ convictions, held, at page 979, that “ [w]e think that the prosecutor’s warning was plainly a threat that resulted in depriving the defendants of … [the witness’s] testimony.” (Emphasis added.) In the instant case, no such “threat” was involved. In Everett’s own words, “He [Mr. Jacobson] didn’t say he didn’t want me to testify; he said it was something or another that I didn’t have to testify, or something like that.”

¶7This court does not find any improper action prejudicial to defendant’s constitutional rights. See ABA Standards relating to the Prosecution Function and the Defense Function, the Prosecution Function, Section 3.2(b), at page 81 (1970).2

¶8By reason of the foregoing, the judgment of the Court of Appeals is affirmed.

¶9Judgment affirmed.