State v. Young

CoRRIgan, J.

The gravamen of the claim of error in this appeal is whether the state’s cross-examination of defendant concerning his decision to remain silent during in-cnstody interrogation by police constituted an infringement upon the exercise of that constitutional right.

As we noted in State v. Laskey (1970), 21 Ohio St. 2d 187, 194, nothing in Griffin v. California (1965), 380 U. S. 609, or Miranda v. Arizona (1966), 384 U. S. 436, “forbids cross-examination once the accused has taken the stand.” However, the fact that a defendant decides to testify does not of itself provide the state an opportunity to cross-examine him as to whether he exercised the privilege to remain silent when accused of commission of a crime.

That question was settled in State v. Stephens (1970), 24 Ohio St. 2d 76, in which paragraph two of the syllabus reads:

“The right of silence of an accused, while singular in the constitutional grant, may be plural in application. That right, once invoked by an accused while under accusation, is not waived by reason of defendant testifying at the trial.”

At the same time, the right to silence, once invoked, may later be waived. This was expressed in paragraph four of the syllabus of Stephens as follows:

“In the trial of a criminal case, reference by the prosecutor in his final argument to the jury to defendant’s previously asserted silence at any stage of the accusatorial process, or to implications drawn therefrom, is not permissible unless the record clearly demonstrates by the action or testimony of the defendant that he has waived* the privilege against self-incrimination previously invoked.” (Emphasis added.)

Inasmuch gs a defendant by his testimony may waiye *316“the privilege against self-incrimination previously invoked,” we must determine, in light of the record herein, whether defendant by his testimony waived that privilege.

An examination of the record, pertinent excerpts of which are set forth in the statement of facts above, discloses that, although the state did inquire about conversations between defendant and his counsel, in its initial cross-examination of defendant, it made no reference to the defendant’s decision to exercise his right to remain silent during interrogation.

The first mention of the exercise by defendant of the privilege to remain silent was made during defendant’s redirect examination by his own counsel..

As reason for such disclosure on redirect, defendant states:

“It was the inquiry of the prosecutor about his relationship with counsel before the jury which impelled clarification by defendant.”

Defendant argues that “it was the cross-examination of the prosecutor interrogating defendant about his relationship with his attorney that clearly indicates the state initiated its own error.”

, ■ ' We do not agree. Disclosure of the fact that defendant had conversations with his attorney prior to trial did not convey to the jury any information in respect to whether defendant had exercised his option to remain silent. Moreover, it does not necessarily follow, from the fact that defendant talked with his attorney, that he was advised to remain silent or that he chose to remain silent as a result of the conference with his attorney. Therefore, defendant’s contention that the disclosure on redirect examination of the fact that he had remained silent during interrogation was “impelled” by the state is without merit. Consequently, we conclude that such disclosure was voluntary. In view of this, defendant may not complain about the prosecuting attorney’s cross-examination concerning the exercise of his right to remain silent “* * * because he volunteered this information upon direct ex-*317animation by his own counsel.” State v. Pollard (1970), 21 Ohio St. 2d 171, 174.

Thus, where a defendant, on examination by his own counsel, testifies that he chose to remain silent during in-custody interrogation by police, such testimony results in waiver of the privilege against self-incrimination, and the prosecuting attorney may thereafter cross-examine defendant concerning his exercise of that privilege.

For the reasons stated, the judgment of the Court of Appeals is reversed and the judgment of the Court of Common Pleas is affirmed.

Judgment reversed.

SCHNEIDER, HERBERT, Stern and Leach, JJ., concur. O’Neill, C. J., and Duncan, J., concur in the judgment.