STATE v. HOUCHIN, 13 Ohio St.2d 90 (1968)

234 N.E.2d 597

THE STATE OF OHIO, APPELLEE v. HOUCHIN, APPELLANT.

No. 41038Supreme Court of Ohio.
Decided March 6, 1968.

Criminal procedure — Failure of accused to testify — Comment to jurors thereon — Question not raised by record — Remedies of accused — Evidence found in search with accused’s consent.

APPEAL from the Court of Appeals for Cuyahoga County.

Defendant was convicted of the crime of larceny.

The Court of Appeals affirmed the judgment of conviction.

The cause is now before this court on appeal from the judgment of the Court of Appeals, as a case involving a substantial constitutional question and pursuant to allowance of a motion for leave to appeal.

Mr. John J. Corrigan, prosecuting attorney, and Mr. Ralph D. Sperli, for appellee.

Mr. Charles E. Mosley, Jr., for appellant.

Per Curiam.

Defendant’s principal complaint is that a booklet had been distributed to prospective jurors in Cuyahoga County prior to the time of defendant’s trial, which was after announcement o Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229, which booklet stated that “the failure of the defendant to testify may be considered by the court and jury and may be made the subject of comment by counsel.”

The record discloses that defendant did not testify at his trial. However, there is nothing in the record to show

Page 91

that there was any such booklet or that it was so distributed to jurors.

Hence, the record does not raise any question as to whether distribution of such a booklet to prospective jurors would conflict with the law as announced in the Griffin case.

If such a question could not have been raised prior to defendant’s conviction, it could have been raised either pursuant to Section 2945.80, Revised Code, providing for a new trial by the filing of a motion within three days after the verdict was rendered or within three days from the order of the court finding that defendant was unavoidably prevented from filing a motion for new trial raising such question, or perhaps in postconviction proceedings pursuant to Section 2953.21 et seq., Revised Code. In either instance, there would have been an opportunity for both the state and the defendant to produce evidence as to the contents of the booklet and whether any jurors read it.

Defendant also complains because the court did not suppress certain evidence found in a search of his apartment. However, the record discloses that this search was lawful because made with the defendant’s consent. The other questions raised by defendant have insufficient merit to justify any comment by this court.

Judgment affirmed.

TAFT, C.J., ZIMMERMAN, MATTHIAS, O’NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.

Page 92