Court News Ohio
Court News Ohio
Court News Ohio

Witness’s Compelled Statement After Invoking Fifth Amendment Did Not Impact Trial Outcome

The Ohio Supreme Court ruled today that even if a municipal court judge erred when he made a witness attempting to invoke his Fifth Amendment right against self-incrimination read a written statement he previously made to police, the error was harmless because the judge did not consider the statement in finding the witness’s son guilty of domestic violence. The Supreme Court found other evidence in the case was more than enough to support that conviction.

A Court majority affirmed the domestic violence conviction of Jeffrey Arnold by the Fostoria Municipal Court in 2013. The Court’s seven justices issued five separate opinions centering on whether Arnold’s constitutional rights were violated when his father, who was the victim of the crime, invoked the Fifth Amendment while on the witness stand because he did not want his son charged. The trial judge directed the father to read a statement he made to the police at the time of the crime. In that statement, the father claimed Arnold punched and choked him.

In the Court’s lead opinion, Chief Justice Maureen O’Connor wrote that although it may have been an error to admit the statement, the remaining evidence “established Arnold’s guilt beyond any reasonable doubt.”

Incident in Home with History of Armed Threats Escalates
Arnold, 28 at the time of the incident, lived with his parents, Connie and Lester. Connie and Lester’s 11-year-old grandchild was visiting the house, and the family gathered in the kitchen. Arnold became upset with what his mother was making for dinner, and the grandchild became anxious, retreated to the other end of the house, and asked to leave. Lester left the kitchen for the computer room in an attempt to deescalate the situation, and Arnold followed him.

Arnold grabbed his father by the hair, punched him and choked him, and refused to let him leave the room. Connie could not see the assault, but described hearing “crashing” and “struggling” sounds and she fled the house with the grandchild. When she spotted a neighbor, she asked that he call the police. Police repeatedly attempted to communicate with Arnold, but he would not respond and would not let them speak to Lester. Aware of the presence of firearms in the house and a history of threats involving assault weapons, the police called for the SWAT team and prepared for a forced entry. After holding his father captive for about 30 minutes, Arnold released him through the garage and fled.

During the trial, police officers who were at the scene described Lester as “very scared,” “agitated,” and “very nervous” after the incident and an officer took his statement. After Lester completed it, the officer asked Lester to sign it if it were true and reflected the events to the best of his knowledge “under penalty of law,” and Lester signed it.

Fostoria police filed a complaint against Arnold for violating R.C. 2919.25(A), the state law for unlawfully and knowingly causing or attempting to cause physical harm to a family or household member.

Lester Invokes Fifth Amendment at Trial
At a bench trial, Lester was called by the prosecution as the first witness, and after initially identifying himself, Lester testified that he was unable to recall what happened and refused to answer questions by asserting his right against self-incrimination. He did not offer an explanation of how his answers might incriminate him, even when Arnold’s defense counsel attempted to make him explain.

Prosecutors then attempted to have Lester read the statement he gave to police. Lester refused to identify it as his statement, and Arnold’s attorney objected to Lester reading it because he had “invoked his Fifth Amendment privilege.” The state countered that Lester had not stated the reasons for invoking his right against self-incrimination. Arnold’s defense counsel did not provide  a reason that explained how Lester would incriminate himself by reading the statement, but did object on the basis that Lester couldn’t remember giving the statement. The judge interrupted stating, “I don’t see what the harm would be in having him read the statement.”

Lester read the statement and reiterated he did not remember making it, offering that his blood sugar level was extremely high, his vision was distorted, the tinnitus in his ears was ringing so loud he couldn’t hear and that he was being treated for post-traumatic stress disorder having served as a U.S. Marine in the Vietnam War. His testimony concluded with Lester saying the only thing he remembered was telling a responding officer he did not want his son charged or arrested.

The trial judge heard the testimony from Connie and two responding officers, and the arguments from Arnold’s attorney asserting that the state failed to prove its case because there was no visible harm to Lester and no conclusive evidence that Arnold attempted to or actually caused any harm to Lester.

In pronouncing a verdict, the trial judge stated that even disregarding Lester’s testimony, there still was ample and sufficient evidence to prove Arnold guilty beyond a reasonable doubt. He was sentenced to 150 days in jail.

Appeals Court Split on Arnold’s Conviction
Arnold appealed to the Third District Court of Appeals, claiming among other things that he was denied a fair trial because the judge threatened Lester with contempt of court for invoking his Fifth Amendment right against self-incrimination, and Arnold’s Sixth Amendment right to confront a witness was abused when Lester’s statement was read in court after he had refused to answer questions from both the prosecutor and defense counsel.

A divided three-judge panel of the Third District affirmed the conviction with one judge upholding the trial court’s decision and a second judge concurring in judgment only. A third judge dissented, and Arnold appealed to the Supreme Court, which agreed to hear the case.

Right to Invoke Fifth Amendment Not Absolute
Chief Justice O’Connor explained the right to invoke the Fifth Amendment applies not only to the accused but also to witnesses who would incriminate themselves by responding to questions. However, the right is not absolute. Citing the U.S. Supreme Court’s 1951 Hoffman v. United States decision, Chief Justice O’Connor wrote the protection “must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.”  The witness has to supply some evidence that answering the question could actually lead to a prosecution of a crime, and a trial court judge must determine from the witness’s response whether answering the question would lead to revealing incriminating evidence.

Chief Justice O’Connor wrote the trial judge’s inquiry was not “ideal” but when Arnold’s attorney objected to the statement being read because Lester invoked the Fifth Amendment, the prosecutor noted there was no basis for the privilege to be invoked, and Arnold’s defense attorney “was unable to articulate any coherent basis for honoring Lester’s assertion of the privilege” and the judge allowed the statement to be read.

“The record reveals not one iota of evidence or other information adduced during Lester’s appearance on the stand, or at any point during the trial, suggesting that Lester had violated any law in giving the police the statement or that he would violate any law or otherwise incriminate himself by reading his statement at trial,” she wrote.

Fair Trial Not Stymied by Uncooperative Witness
In addition to claiming a violation of Lester’s Fifth Amendment rights harmed him, Arnold claimed his own Sixth Amendment rights under the U.S. Constitution were violated because he had no ability to confront the witness against him. Chief Justice O’Connor explained that Arnold’s claim is based on Lester testifying that he could not remember what he had written and refusing to respond to questions, which left Arnold’s attorney with no meaningful way to cross-examine Lester.

She wrote the statements made while not on the witness stand, like Lester’s to the police, can be admitted as evidence, as long as the witness is present at the trial and capable of being questioned. She maintained that Arnold had the “opportunity for effective cross-examination” because Lester was present in the court and confronted about his prior statements.

Chief Justice O’Connor noted that defense counsel was able to effectively help Arnold’s case by calling into question Lester’s credibility when he testified he could not remember the incident for a variety of reasons. She concluded that even if the statement was admitted in error it does not justify Arnold receiving a new trial because all the other evidence proved his guilt.

Justices Paul E. Pfeifer and Sharon L. Kennedy joined the chief justice’s opinion.

Concurring Justice Finds Errors by Judge But No Grounds for Reversing Conviction
In a concurring opinion, Justice Judith L. French disagreed with the lead opinion’s questioning of Arnold’s standing to claim the trial was unfair based on Lester’s claims that his Fifth Amendment rights were violated. Justice French concluded Arnold had the right to claim his own rights were violated when Lester’s statement was read. Ultimately, she agreed with the three justices that the trial court did not abuse its discretion when it admitted the statement because Lester offered no reason as to why he would consider himself in danger of self-incrimination.

Justice French also disagreed with the conclusion that Lester was available for cross-examination as required by the Constitution’s confrontation clause. Because Lester’s written statement implicated Arnold in the crime, but Lester refused to answer any questions about what he wrote or even acknowledge he made the statement, she concluded that made him unavailable to confront. As with the Fifth Amendment claim, Justice French maintained that even if admitting the statement violated Arnold’s Sixth Amendment right, it was not enough to warrant a new trial based on all the other evidence.

Dissenting Justices Take Separate Views
Three separate dissenting opinions were issued by Justices Terrence O’Donnell, Judith Ann Lanzinger, and William M. O’Neill. Justice O’Donnell asserted that the trial court disregarded its duty to properly appraise Lester’s claim of self-incrimination, made an error in compelling Lester to read the statement, and affected Arnold’s rights.

“The majority states that ‘the record before us does not reflect an ideal inquiry by the trial court into the basis of Lester’s claim of privilege,’” Justice O’Donnell wrote. “The record reflects no inquiry by the trial court on the subject.”

Justice O’Donnell explained that Lester was the first witness in the trial and at that point it was not clear whether Arnold or Lester was the aggressor who started the confrontation. Rather than trying to discern if Lester clearly was mistaken about his right to self-incrimination, the trial judge advised him he could be held in contempt of court for refusing to answer questions. This ultimately led to the court compelling Lester to read his statement, which Justice O’Donnell concluded led to errors that harmed Arnold’s defense.

He noted the majority of justices did not find the admission of the statement violated Arnold’s Sixth Amendment rights to the point that required a new trial. However, he maintains that even if Lester’s statement to the police could be used to question Lester’s credibility, it could not be used as part of the case to prove a crime. He cited the dissenting Third District judge, who wrote that all the court knew at the time was there was a dispute between Lester and Arnold, and Lester claimed he was punched and choked, despite the police finding no visible injuries.

“The evidence is insufficient to support Jeffrey’s conviction for domestic violence beyond a reasonable doubt. Based on these facts, I would reverse the judgment of the court of appeals,” Justice O’Donnell wrote.

Justice Lanzinger described the matter as a simple case where a father had a change of heart and did not want his son charged with assault. She viewed the case as one that should not have been accepted for review.

Justice O’Neill wrote the case provides the Court an opportunity to explain to trial judges their duty to determine the validity of a Fifth Amendment claim by witnesses, and suggested the judge could have taken Lester aside for a frank discussion of why he felt he might be incriminated.

Like Justice O’Donnell, Justice O’Neill maintained the written statement was inadmissible and overrode Lester’s belief that he could remain silent. Justice O’Neill also questions the presumption that the judge did not use the statement as a basis for finding Arnold guilty and he maintains the judge used the statement because it “bolstered the limited evidence from the other witnesses.

“What ‘relevant, material, and competent evidence’ of domestic violence did the trial court below solely rely on?” he wrote. “A ‘crashing sound,’ a ‘struggling sound,’ some disheveled hair, a dubiously admissible out-of-court statement that Arnold punched Lester in the head and grabbed him in a chokehold, which was made some time after the ‘commotion.’”

2014-0718. State v. Arnold, Slip Opinion No. 2016-Ohio-1595.

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