State v. O'Connor

Taft, C. J.

Shortly after the decision in Griffin v. California, supra (380 U. S. 609), this court admitted for review all cases where the prosecutor had commented or the trial judge had charged upon a criminal defendant’s failure to testify. Surprisingly, there were only five such cases. Thereafter, the Supreme Court of the United States remanded Howell v. Ohio (1965), 381 U. S. 275, 14 L. Ed. 2d 430, 85 S. Ct. 1457, “for further consideration in light of Griffin v. California.” This court promptly reversed the judgment in that case (State v. Howell [1965], 4 Ohio St. 2d 11, 211 N. E. 2d 56) and ordered the prosecutor in each of the five cases previously admitted for review to specify whether there was any reason for not reversing without further argument on the authority of the Griffin and Howell cases. Because no such reason was advanced, the judgments in two of those cases were summarily reversed. State v. Browning (1965), 38 Ohio Bar, No. 45, 1256; State v. Reed (1965), 38 Ohio Bar, No. 45, 1256. Subsequently, a defendant in a third case withdrew his appeal to this court. State v. Lynn (1966), 5 Ohio St. 2d 106, 107. The judgment against another defendant (Illaequa) was reversed on authority of Griffin v. California, supra (380 U. S. 609). State v. Lynn, supra (5 Ohio St. 2d 106). This court, with no dissent noted, refused to reverse the judgment against the fifth defendant (Conti) for the reason that the question, which is related to the question involved in and had no vitality whatever before Griffin v. California, supra (380 U. S. 609), was not raised by such defendant either at the trial or in the Court of Appeals. State v. Lynn, supra (5 Ohio St. 2d 106) (paragraph six of syllabus). A similar decision had been rendered in City of Toledo v. Rea-sonover (1965), 5 Ohio St. 2d 22, where this court stated in paragraph two of its syllabus that “the Supreme Court will not ordinarily consider a claim of error that was not raised in any way in the Court of Appeals and was not considered or decided by that court.” Lynn was decided by this court after and with knowledge of the remand of the instant case.

Because of the decisions of the United States Supreme Court in Griffin v. California, supra (380 U. S. 609), and Howell v. Ohio, supra (381 U. S. 275), it is settled that, in a criminal ease, a charge by the court and a comment by the prosecutor, that the jury may consider the failure of a defendant to testify as to matters which he can reasonably be expected to deny or explain because of facts within his knowledge, are a denial of the defendant’s constitutional rights under the Fifth and Fourteenth Amendments to the United States Constitution. Tehan, Sheriff, v. United States, ex rel. Shott (1966), 15 L. Ed. 2d 453, 86 S. Ct. 459, determines that the law as declared in Griffin v. California, supra (380 U. S. 609), is applicable to all cases that were still pending on direct review at the time that Griffin was announced.

This brings us to the only question involved in the instant case. That question may be stated as follows:

May the Supreme Court of Ohio properly refuse to consider a claim of error that was not raised in any way in the trial court or in the Court of Appeals and was not considered or decided by that court?

As hereinbefore stated, this court recently held that it may. City of Toledo v. Reasonover, supra (5 Ohio St. 2d 22), and State v. Lynn, supra (5 Ohio St. 2d 106). See also State v. Jones (1965), 4 Ohio St. 2d 13, 211 N. E. 2d 198, and State v. Davis (1964), 1 Ohio St. 2d 28, 203 N. E. 2d 357.

The holdings in the Beasonover and Lynn cases accord with similar holdings made by courts of last resort in other states in similar circumstances. People v. Friola (1962), 11 N. Y. 2d 157, 182 N. E. 2d 100; People v. West (1963), 12 N. Y. 2d 1090, 190 N. E. 2d 532; Shorey v. State (1962), 227 Md. 385, 177 A. 2d 245, certiorari denied, 371 U. S. 928.

Such holdings also accord with the rules of the Supreme Court of the United States which are based upon the constitutional (Section 2, Article III) and statutory (Section 1257, Title 28, U. S. Code) provisions defining and limiting the appellate jurisdiction of that court. For example, in Rule 23, 1(f), of the Supreme Court, relative to petitions for certiorari, the petitioner is required to ‘ ‘ show that the federal question was timely and properly raised so as to give this court jurisdiction to review the judgment on writ of certiorari,” and Rule 16, 1(b) provides that “the court will receive a motion to dismiss an appeal from a state court on the ground * * * that the federal question sought to be reviewed was not timely or properly raised, or expressly passed on; or that the judgment rests on an adequate non-federal basis.”

Those decisions further accord with the decisions of the Supreme Court of tlie United States. Thus, in footnote 9 of Mapp v. Ohio (1961), 367 U. S. 643, 6 L. Ed 2d 1081, 81 S. Ct. 1684, it is stated:

“As is always the case, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected.”

Examples of the respect given to state procedural requirements such as those recognized by this court in the Reasonover and Lynn cases are found in Edelman v. California (1953), 344 U. S. 357, 97 L. Ed. 387, 73 S. Ct. 293; Brown v. Allen, Warden (1953), 344 U. S. 443, 486, 97 L. Ed. 469, 504, 73 S. Ct. 397, 422; Michel v. Louisiana (1955), 350 U. S. 91, 100 L. Ed. 83, 76 S. Ct. 158; Parker v. Illinois (1948), 333 U. S. 571, 92 L. Ed. 886, 68 S. Ct. 708; Baldwin v. Kansas (1889), 129 U. S. 52, 32 L. Ed. 640, 9 S. Ct. 193; Spies v. Illinois (1887), 123 U. S. 131, 181, 31 L. Ed. 80, 91, 8 S. Ct. 21, 31; Leeper v. Texas (1891), 139 U. S. 462, 35 L. Ed. 225, 11 S. Ct. 577; Duncan v. Missouri (1894), 152 U. S. 377, 38 L. Ed. 485, 14 S. Ct. 570; and Hartford Life Ins. Co. v. Johnson (1919), 249 U. S. 490, 63 L. Ed. 722, 39 S. Ct. 336.

Undoubtedly, the trial court erred in the instant case in charging upon defendant’s failure to testify.

There is nothing to indicate that the Supreme Court of the United States determined in Tehan, Sheriff, v. United States, ex rel. Shott, supra (15 L. Ed. 2d 453), that our court must hold that the trial court so erred, even though no such claim of error was raised either in the trial court or in the Court of Appeals and even though procedural due process in Ohio, as consistently recognized by our statutes and the decisions of this court, contemplates that this court should not even consider a claim of error not raised in any way in the Court of Appeals and not considered or decided by that court.

There is nothing to indicate that the Supreme Court of the United States knew, when it “remanded” this case to this court “for further proceedings in the light of Griffin,’’ that defendant had not previously raised in the Ohio courts the contention now relied upon. Certainly, the fact, that defendant originally relied only upon some other claim of error before the Supreme Court of the United States, would not inform that court that that was the only claim of error relied upon by that defendant in the courts of Ohio. We all know that an appellant frequently does not raise in our court all the errors that he relied upon in his unsuccessful appeal to the Court of Appeals.

Defendant’s application for rehearing expressly represented to the Supreme Court of the United States that the same ground as in Howell v. Ohio, supra (381 U. S. 275) (i. e. violation of constitutional rights by reason of the court’s charge and comment of the prosecutor on the defendant’s failure to testify), was available to the defendant in the instant case. That application further expressly represented that, so far as this ground is concerned, the two cases (the instant case and the Howell case) did not differ until the appeal to the Supreme Court of the United States. Admittedly, they did differ. In Howell, the question as to such charge of the court and comment of counsel was consistently raised from the time when such charge and comment were made. However, in the instant case, no question with respect to any such charge or comment was ever raised until after defendant’s petition for certiorari had been denied by the Supreme Court of the United States.

There is nothing to indicate that this important difference between the instant case and the Howell case was ever called to the attention of or known by the Supreme Court of the United States when it remanded the instant case to this court for further proceedings.

It is suggested that defendant should not be expected to raise the claim of error, now relied upon, before the Supreme Court of the United States had given it vitality by its decision in Griffin. We answered such a contention in Reasonover where, at page 25, we stated:

“It may reasonably be argued that defendant should be excused from raising in the Court of Appeals his claim of error with respect to the prosecutor’s comment on his failure to' testify, because he could not reasonably anticipate such an unusual decision as Griffin v. California, supra. But see 5 American Jurisprudence 2d 29, Section 545.

“However, as early as June 15, 1964, when Malloy v. Hogan, Sheriff, 378 U. S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489 was decided, there was considerable speculation among lawyers and layman and in newspapers as to whether the Snpreme Conrt would render a decision such as it later rendered in Griffin. Thereafter, any defendant who considered that he had been prejudiced by comment of the prosecutor on his failure to testify should have promptly raised that question. The defendant in the instant case did not do this although his case was not submitted to the Court of Appeals for decision until a substantial time after the decision in Malloy. ”

See also Sunal v. Large, Supt. (1947), 332 U. S. 174, 91 L. Ed. 1982, 67 S. Ct. 1588.

It is not reasonable to infer from the brief memorandum opinion of the United States Supreme Court in the instant case that that court intended to depart from the law, as so recently stated in the court’s opinion in Edelman v. California, supra (344 U. S. 357), as follows:

“* # # We granted certiorari because of serious constitutional questions raised as to the validity of the vagrancy statute * * *. * * * it is necessary at the outset to determine whether we have jurisdiction in this case.

“Petitioner contends, first, that his conviction violates the due process clause of the Fourteenth Amendment because the vagrancy statute is vague, indefinite and uncertain. The record indicates that this defense was not raised on trial but was presented for the first time as the fifth of petitioner’s grounds of appeal * * *.

“It is clear that this court is without power to decide whether constitutional rights have been violated when the federal questions are not seasonably raised in accordance with the requirements of state law. * * * Noncompliance with such local law can thus be an adequate state ground for a decision below. * * * It follows that the question whether the vagrancy statute is invalid under the Fourteenth Amendment is not properly before us.”

In our opinion, if the Supreme Court of the United States intended to make such an important departure from its long and consistent line of prior decisions, from the statutes governing its jurisdiction, and even from its own rules, the Supreme Court of the United States would have at least expressed its intention to do so.

For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

ZimmebmaN, Matthias and SchNbider, JJ., concur.

O’Neill, Herbert and BbowN, JJ., dissent.