[Cite as State v. Price, 2013-Ohio-1542.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98410
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHRISTIAN PRICE
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-549930
BEFORE: Stewart, A.J., Kilbane, J., and Blackmon, J.
RELEASED AND JOURNALIZED: April 18, 2013
ATTORNEY FOR APPELLANT
Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Aaron Brockler
Daniel T. Van
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:
{¶1} A jury found defendant-appellant Christian Price guilty of rape, kidnapping,
and telecommunications harassment, rejecting his argument that sexual intercourse
between him and the victim had been consensual. In this appeal, Price primarily
complains that the state impeached him by telling the jury that he did not immediately
claim to the police that the sexual intercourse had been consensual, but instead waited
until the start of trial to make that claim. He argues that this was an impermissible
comment on his post-arrest right to remain silent and that counsel was ineffective for
failing to raise the issue at trial. Price also complains that the state knowingly allowed a
police detective to give false testimony and that the convictions for rape and kidnapping
should have merged for sentencing.
I
{¶2} Price questions neither the sufficiency nor the weight of the evidence, so we
can state the underlying facts in summary form. The victim and Price knew each other,
spoke often on the telephone, and on one prior occasion engaged in consensual
intercourse. After that initial sexual encounter, Price told the victim over the course of
many telephone conversations and text messages that he was “horny” and wanted to have
intercourse with her. The victim found this tiresome, asking him “why do you always
have to ask me for sex?” She told him that rather than having sex, they should “spend
some time together.” From that point, Price would come over to her house every second
or third day, but they did not have further sexual relations. Price did not, however, stop
constantly asking the victim to have sex with him.
{¶3} On the day in question, Price stopped by the victim’s house. He asked for a
hug. She told him “no” in “a playful way,” but eventually hugged him. She described
this interaction with him as “flirtatious.” Price told the victim that he was “horny,” and
repeatedly tried to persuade her to have sex with him. She refused, saying that she was
menstruating. Undeterred, Price picked her up and carried her to her bedroom. Despite
her continuing to tell him “no,” Price engaged in sexual intercourse with her.
{¶4} Price did not call the victim for three days after the rape. By this time, the
victim was experiencing an unusual vaginal discharge, which she later learned was a
sexually transmitted infection known as bacterial vaginosis that she contracted from
Price. The victim then went to the police and reported the rape.
{¶5} Almost two weeks after reporting the rape, the victim went back to the police
station “upset” because she had received numerous telephone calls from Price. A
detective who interviewed the victim arranged for her to make a recorded “pretext call” in
which she would engage Price in conversation with the hope that he might admit to the
rape. During that call, Price, astonished by the accusation, repeatedly denied raping the
victim. He did, however, admit that the victim said “stop” and “no,” but further stated
that “it’s not like you said no consistently.” He also stated, “you know how many times a
girl says, ‘no’, and then it ends up happening, like * * * ‘alright come on’?”
II
{¶6} Following his arrest by the police, Price was read his Miranda rights and told
that he had the right to remain silent. Price told the detective that he did not want to talk.
In order to “give him the advice as to what was going on and why he was there,” the
detective read Price the victim’s complaint. The detective testified without objection that
Price replied that “it didn’t happen” and, in the detective’s words, wondered “how can
somebody just come in here, file a complaint and he gets arrested?” Price also asked
whether the detective had proof that he was in the area and suggested that the detective
look into the victim’s background because she had “mental problems.” The state
characterized these post-Miranda statements as “unsolicited,” but Price argues that his
statements were the product of a Miranda violation and that nothing he said following his
invocation of the right to silence contradicted his defense of consent.
A
{¶7} Price did not object to the detective’s testimony, so we must first determine
whether the detective’s recitation of Price’s statements amounted to plain error.
{¶8} An alleged error is plain error only if the error is “obvious,” State v. Barnes,
94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240, and “but for the error, the
outcome of the trial clearly would have been otherwise.” State v. Long, 53 Ohio St.2d
91, 372 N.E.2d 804 (1978), paragraph two of the syllabus. We take notice of “plain
error” with the “utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” Id. at paragraph three of the syllabus.
B
{¶9} Once a criminal defendant receives the warnings required by Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it is improper for the state
to impeach the defendant by causing the jury to draw an impermissible inference of guilt
from the defendant’s post-arrest silence. Doyle v. Ohio, 426 U.S. 610, 611, 96 S.Ct.
2240, 49 L.Ed.2d 91 (1976). The rationale behind this rule is that Miranda warnings
carry the state’s “implicit assurance” that an arrestee’s invocation of the Fifth
Amendment right to remain silent will not later be used against him. Wainwright v.
Greenfield, 474 U.S. 284, 290-291, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). Because a
defendant’s post-Miranda warning silence could be nothing more than an invocation of
his right to silence, it would be fundamentally unfair to permit a breach of that assurance
by allowing impeaching questions as to why the defendant failed to give an exculpatory
account to the police after receiving the warnings. Id. at 295; State v. Rogers, 32 Ohio
St.3d 70, 71, 512 N.E.2d 581 (1987).
{¶10} The rule in Doyle does not apply where “no governmental action induce[s]
the defendant to remain silent,” Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 71
L.Ed.2d 490 (1982). So pre-arrest silence may be used for impeachment purposes
because the state has done nothing to induce the defendant to believe that he has a right to
remain silent before arrest. Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 65
L.Ed.2d 86 (1980). The same applies to post-arrest, pre-Miranda warning, silence,
Fletcher, 455 U.S. at 605-607, and any voluntary post-Miranda warning statements.
Anderson v. Charles, 447 U.S. 404, 408-409, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980).
C
{¶11} Price does not dispute that he made statements to the detective, but claims
those statements were the result of a blatant Miranda violation and that those statements
did not, in any event, contradict his assertion that he and the victim engaged in consensual
intercourse.
{¶12} Price did not raise the issue of whether his statements to the detective were
provoked in violation of Miranda in a pretrial motion to suppress those statements, so this
argument is waived for purposes of appeal. State v. Campbell, 69 Ohio St.3d 38, 44,
1994-Ohio-492, 630 N.E.2d 339.
D
{¶13} We next address Price’s argument that nothing he said to the police
contradicted his assertion that he and the victim engaged in consensual intercourse.
When considering this argument, it is important to note that the detective’s testimony was
not directed toward any contradictions in Price’s trial testimony because Price had yet to
testify. In Charles, the Supreme Court stated:
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 voluntarily speaks 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.
447 U.S. at 408.
{¶14} In addition, Charles found that an out-of-court statement may be called
“inconsistent” with the in-court statement because of a curious omission as well as a flat
contradiction. The court remarked:
Each of two inconsistent descriptions of events may be said to involve
“silence” insofar as it omits facts included in the other version. But Doyle
does not require any such formalistic understanding of “silence,” and we
find no reason to adopt such a view in this case.
Id. at 409.
{¶15} Put differently, “telling omissions” are a form of inconsistency and once a
suspect agrees to speak he may be questioned about those telling omissions. Johnson v.
Acevedo, 572 F.3d 398, 402 (7th Cir.2009).
{¶16} The detective’s testimony was not offered to impeach anything that Price
said at trial, nor could it have been given that Price had yet to testify. It was offered for
no other purpose than to draw meaning from Price’s silence. For example, the detective
testified that it was at trial that he heard for the first time Price’s contention that the
intercourse was consensual. He told the jury that from an “investigatory standpoint,”
Price’s consent defense, first being made nearly one year after the rape, caused him to
“look at that as showing that there’s a lack of truth in the fact of what he initially said to
what we’re defending in court situations.” In other words, the detective plainly
considered that Price’s failure to immediately claim consent, despite having been
guaranteed that his silence would not be used against him, made him less honest.
{¶17} In Jaradat v. Williams, 591 F.3d 863 (6th Cir.2010), the United States Court
of Appeals for the Sixth Circuit considered a similar issue. Jaradat was taken into
custody and charged with rape. The police advised him of his Miranda rights and a
detective testified that Jaradat said that “he would prefer to have an attorney present with
him before he made a statement.” Id. at 867. The following exchange ensued between
the assistant prosecuting attorney and the detective:
Q. Now, when you speak to a defendant, is that his or her opportunity to
tell you his or her side of the story?
[Defense counsel]: Objection, objection.
The Court: Overruled.
A. Yes, there’s two sides to every story, and we want to hear both sides.
Q. At any time on December the 29th, did the defendant ever advise you
that any type of sexual contact, any type, took place between him and the
victim?
A. No, he didn’t.
***
Q. I’m sorry. At anytime during your conversation with the defendant,
did he admit to you or tell you that any type of sexual contact whatsoever
took place between him and the victim?
A. He did not.
Id. at 867-868.
{¶18} The Sixth Circuit found those questions “amount to blatant Doyle
violations” because they were “a direct comment on [Jaradat’s] post-arrest silence.” Id.
at 868.
{¶19} The same rationale applies here. The questions asked of the detective were
designed to draw attention to Price’s post-arrest silence by equating that silence with
guilt. Indeed, the detective’s testimony left no doubt about this conclusion given the
vacuity of his statement that Price’s failure to immediately raise a consent defense made
Price inherently suspect — if Price did not raise the issue of consent until trial, the police
could not have thought him inherently untruthful at the time they were investigating the
rape. In any event, Price was under no obligation to give the state any advance notice
that he was raising a defense of consent. Cf. State v. Pepin-McCaffrey, 186 Ohio App.3d
548, 2010-Ohio-617, 929 N.E.2d 476, ¶ 33 (7th Dist.) (no rule requiring defendant to
provide notice of affirmative defense of self-defense or defense of property).
{¶20} Apart from the obvious defects in the detective’s testimony was the suspect
nature of his testimony that Price’s consent defense was raised for the first time at trial.
The detective listened in on, and recorded, Price’s conversation with the victim in the
“pretext call.” The recording contains Price’s repeated denials that he had raped the
victim, making it plain that Price believed he and the victim engaged in consensual
intercourse. For the detective to testify that the first time he heard the theory of the
sexual encounter being consensual was “[a]s we were coming into court” was a wholesale
disregard of the call’s content.
{¶21} By referencing Price’s raising the defense of consent for the first time at
trial, the detective’s only purpose in testifying was to draw attention to that silence. So
not only did the state violate the guarantee that Price’s silence could not be used against
him, but it used that silence against him by suggesting that he was lying by raising a
consent defense on the eve of trial. This is a clear case where the state exploited a
suspect’s silence under Doyle.
E
{¶22} The state argues that Price waived his silence by making voluntary
comments after he stated that he did not wish to talk. It maintains that it could introduce
Price’s failure to mention corroborating facts of his defense. Price does not dispute that
he made statements to the police, but claims that these statements were inadmissible
because they did not contradict a theory of consent.
{¶23} Statements voluntarily made after the Miranda warnings have been given to
a defendant are admissible in evidence. See State v. Osborne, 50 Ohio St.2d 211, 364
N.E.2d 216 (1977) (a “garrulous” defendant who chooses to talk has not relied on any
inherent Miranda promises with respect to what he talks about).
{¶24} If we assume without deciding that the detective could legitimately testify to
Price’s post-Miranda statements, we nonetheless must conclude that the testimony was
erroneously allowed because the state did not intend to exploit the inconsistencies in what
Price said, but rather to exploit what he did not say. In reaching this conclusion we note
that the post-Miranda waiver of the right to remain silent “does not mean that any time a
defendant makes any post-arrest statement the door is open to full cross-examination
about the defendant’s failure to recount the exculpatory trial story earlier. Miranda
protections apply equally to refusals to answer specific questions.” Grieco v. Hall, 641
F.2d 1029, 1034 (1st Cir.1981).
{¶25} Price was not garrulous. The detective said that Price said only three things
after stating that he did not wish to speak: “it didn’t happen,” “can you even prove that I
was in the area?” and “did you check into [the victim’s] background?” Nothing in these
statements was necessarily inconsistent with a theory of consensual sexual intercourse.
{¶26} Even if these statements might conceivably have been interpreted as stating
an alibi, it is plain that the state did not use those statements to impeach Price, but used
them for the purpose of exploiting his silence. The detective’s testimony was that Price’s
defense of consent, coming out for the first time at trial nearly one year after he and Price
first spoke, showed “there’s a lack of truth in the fact of what he initially said to what
we’re defending in court situations.” The import of this statement was to highlight
Price’s silence in the face of a rape accusation. As in Jaradat, this was a clear Doyle
violation.
F
{¶27} The final inquiry in our plain error analysis is whether but for the error, the
outcome of the trial clearly would have been otherwise.
{¶28} The evidence against Price was not strong. The victim testified that she did
not want to have intercourse with Price because she was menstruating, although she
admitted that she had been flirtatious with him when he came over to her house, despite
knowing that he was “horny.” And while it is true that Price acknowledged during the
course of the “pretext call” that the victim had initially said “no” to intercourse, it is
equally true from the course of that conversation that he believed he eventually prevailed
upon her to give in to his advances. This served as a plausible explanation to his
comments that “it’s not like you said no consistently” and “you know how many times a
girl says, ‘no’ and then it ends up happening, like * * * ‘alright come on’?” In fact, Price
consistently denied raping the victim throughout the telephone call, even expressing
disbelief that she could make such an accusation against him. Tellingly, Price did not
know that the conversation was being recorded or that the victim had filed a complaint
against him, so the statements he made during the course of the conversation could
certainly be viewed as credible. And when the victim reported the rape, admittedly it
was after Price failed to call her and she began to suspect that she had contracted a
sexually transmitted disease from him.
{¶29} Against these facts was the detective’s testimony that Price’s failure to
immediately raise a defense of consent made Price inherently untrustworthy. This
testimony permeated the trial to the point where it became a focus of the state’s closing
argument. The assistant prosecuting attorney told the jury that Price:
* * * never told [the detective] not one time this was a consensual sexual
encounter shortly after that occurred. Not until he comes into court today
does he say this is consent. Says that everything was great, good [on the
date of the offense].
Ten days of silence that I just mentioned.
{¶30} This argument forced defense counsel to address the matter in closing
argument and rebut the state’s inference that Price’s silence at the time of arrest somehow
suggested that the consent defense was a last second trial strategy. On that point, the
state in its rebuttal argument referenced Price’s “new theories” and that “[w]hen he had a
chance to talk about it a month after the incident he doesn’t mention any of that.”
{¶31} Given the absence of any direct evidence proving the rape, arguments
directed toward Price’s “silence” during the interview with the detective undoubtedly led
to Price’s conviction. Comments on Price’s silence cast him as a liar and an opportunist,
and were so pervasive that but for them being made, the outcome of the trial would have
been different.
{¶32} We therefore find that Price has established plain error, so we sustain the
first assignment of error, reverse his convictions, and remand for a new trial. Our
resolution of this assignment of error necessarily moots consideration of the second
assignment of error that counsel was ineffective for failing to object to the state’s
comment on Price’s silence. Also mooted is Price’s claim of prosecutorial misconduct
and the court’s failure to merge the sentences for kidnapping and rape. Price did not
challenge any aspect of his conviction for telephone harassment, so that conviction
stands.
{¶33} This cause is reversed and remanded to the trial court for further
proceedings consistent with this opinion.
It is ordered that appellant recover from appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution. A certified
copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
PATRICIA ANN BLACKMON, J., CONCUR