I’ve been a frequent critic of appellate courts taking all the detritus from a criminal trial and sweeping it under the carpet called “harmless error.”  Sometimes, though, that’s the better approach, as evidenced by a couple of 8th District decisions last week.

The facts in State v. Smith were fairly simple, if typically brutal:  Smith confronted Johnny Greene about some slight, real or imagined, to Smith’s sister’s car, and when Greene proved insufficiently contrite, shot him nine times.  He did this in front of four people who could and did identify him.  At trial, the detective testified that after Smith had been arrested and Mirandized, he ventured that his arrest was over “some bullshit robbery charge.”  When told that he was in custody for killing Greene, the detective testified, Smith’s demeanor changed:  he became very quiet, indicating in response to further questioning that he needed to talk to his mother, to determine whether he needed an attorney.

This exchange was the focus of the appeal, with Smith arguing first that the admission of the testimony violates his Miranda rights.  The court shrugs this off, deciding that the failure to raise this in a motion to suppress waives the claim.  This played nicely into Smith’s second argument, that his trial lawyer rendered ineffective assistance by not filing the motion. 

The court’s opinion on this point isn’t well-focused:  in a span of a few paragraphs, we’re told that the detective’s testimony about Smith’s changed demeanor isn’t indicative of anything much, and that “moreover, four eyewitnesses testified about the shooting.”  The latter point, seemingly unconnected, leads to the conclusion that Smith wasn’t prejudiced by the testimony, and that the lawyer could have decided that it would be futile to file a motion to suppress, so that his failure to do so could be ascribed to “trial strategy.”

The easier tack would have been to simply hold that, in light of the overwhelming evidence of guilt, an ineffective assistance claim couldn’t survive the second prong of the Strickland test:  showing that counsel’s failure prejudiced the defendant.  The bigger problem, though, is that the court gets the major issue wrong:  this isn’t a case of a post-arrest statement so much as a case of post-arrest silence:  the impact of the detective’s testimony was that after being confronted with the accusation, Smith essentially invoked his right to counsel.  And you don’t have to file a motion to suppress to preserve that issue.

The court took another whack at the issue in State v. Moorer, involving a defendant who’d looted his employer’s cash register, the state’s case enhanced considerably by videotape evidence showing that Moorer was the only one who had access to the register at the time.  After rejecting arguments about weight and sufficiency, the court tackled the issue of post-arrest silence.  Seems that the detectives testified that when they went to arrest Moorer at his house, they found him “compliant,” “relaxed,” and asked no questions about why the police wanted him; after being advised of his rights, he chose not to speak further.

To the prosecutor, this offered proof of guilt:

You also heard from our Officer Malobabic about when he went to go arrest Johnny, there was no surprise on his part, he wasn’t shocked, he wasn’t saying: what are you doing here? Get out of here. He complied and was taken away. That would be contrary to most people’s reactions to when the police come arrest you. Why are you taking me away? Where are you taking me? I didn’t do anything. That’s not what happened here. Johnny was silent.

Now, it’s hard to conclude that’s not a comment on Moorer’s post-arrest silence, and while the court doesn’t come right out and say so, it seems to agree.  So does the conviction get tossed?  Nope; this is a bench trial, so the judge is presumed to consider only proper evidence, plus the defendant failed to object, and this doesn’t rise to the level of plain error.

All that’s an easily defensible position, but the problem arises in the court’s opening paragraph on the issue:

Ohio appellate courts have declined to overturn convictions based upon a limited inquiry of a defendant’s post-Miranda warning silence where it does not constitute a “continuous and invading inquiry regarding defendant-appellant’s post-Miranda silence.”

You remember when you were a kid and played Telephone, where each person would whisper something in the ear of the person next to them, down the line, and the final version was a far cry from how it had started?  Court citations sometimes remind me of that.  I looked up the cases the court cites here, and the cases those cases cited, and it doesn’t hold up.  You don’t need to have a “continuous and invading inquiry” to run afoul of the proscription on evidence of post-arrest silence; in fact, a solitary reference can do the trick.

In both these cases, the court reached the right result, but not a clean one; down the road, some lawyer is going to argue, or some court is going to hold, that a motion to suppress is necessary to preserve the issue of post-arrest silence, or that such silence is only error when the use of it by the prosecution is prolonged and extensive.  And that’s going to make that road muddier than it had to be.