Closing Argument Waived When Defendant Does Not Request and No Objection to Omission is Entered
2008-2415. State v. McCausland, Slip Opinion No. 2009-Ohio-5933.
Butler App. No. CA2007-10-254, 2008-Ohio-5660. Judgment affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-5933.pdf 
View oral argument video of this case.
(Nov. 17, 2009) The Supreme Court of Ohio ruled today that a criminal defendant waives the Sixth Amendment right to present a closing argument when he or she neither requests a closing argument nor enters an objection to its omission. The Court’s 7-0 decision was authored by Justice Evelyn Lundberg Stratton.
James McCausland was stopped by a highway patrol trooper and charged with speeding, OMVI, and refusal of a chemical test with a prior OMVI conviction within the preceding 20 years. He withdrew his request for a jury trial and agreed to a bench trial before the Butler County Court, at which he was represented by an attorney. At trial, the state called one witness, the arresting officer, and the defense presented only McCausland’s testimony on his own behalf. The state then re-called the trooper to respond to portions of McCausland’s testimony.
At the conclusion of testimony, the trial transcript indicates that there was a “pause” in the proceedings but that neither the prosecutor nor defense counsel requested the opportunity to present a closing argument. The judge then summarized the evidence and found McCausland guilty on all three charges. McCausland’s attorney did not enter an objection to the court’s proceeding to judgment without hearing closing arguments.
McCausland subsequently appealed his convictions to the 12th District Court of Appeals. He argued that he was entitled to a new trial because the judge’s denial of an opportunity for a closing summation violated his constitutional right to have his attorney fully argue the merits of his case before the court entered judgment against him. The 12th District affirmed the judgment of the trial court. McCausland sought and was granted Supreme Court review of the case.
Writing for a unanimous Supreme Court in today’s decision, Justice Stratton noted that in a 1975 decision, Herring v. New York, the U.S. Supreme Court overturned as unconstitutional a state law that allowed trial court judges to deny at their discretion a criminal defendant’s request to present a closing summation. She pointed out, however, that the Herring decision also recognized that the right to present a closing argument can be waived, and said the key issue in this case was whether a defendant’s waiver of the right to closing argument must be express (clearly stated) or may be by omission.
“As the appellate decision in this case indicates, there are essentially two opposing positions taken by our appellate districts,” wrote Justice Stratton.
“The Fifth, Sixth, and Seventh Districts follow the Tenth District’s decision in Columbus v. Woodrick (1976) ... in concluding that Herring holds, ‘[T]he closing argument is part of a basic due process right, [and] there is necessarily a presumption against a waiver of such a fundamental right.’ ... Thus, the waiver ‘must be clearly established ... ; it must be plainly shown that there was an intentional relinquishment or abandonment of a known right.’ ... The other approach, adopted by the court of appeals in this case, holds that Herring is a narrow case dealing with a statute that expressly permitted a trial judge to affirmatively deny defense counsel’s specific request for closing argument and should not be extended to cases like this one, in which counsel fails to request closing argument and fails to object to its omission. This view, adopted by the Eighth, Ninth, Eleventh, and Twelfth District Courts of Appeals, holds that absent an express denial of closing argument, the lack of closing argument is not a basis for reversal.”
“We agree with the decision not to extend Herring to create a presumption against waiver when a closing argument is neither requested by the defense nor objected to when omitted by the court. First, we note that Herring involved a specific statute that affirmatively permitted a trial court to deny a defendant the opportunity to present closing argument when requested. ... Herring’s counsel expressly requested closing argument, and the trial court specifically denied it. ... Here, McCausland neither requested closing argument nor objected to its omission. At the close of the case, there was a ‘pause’ noted in the record. Neither the state nor the defense began closing arguments or requested them. Moreover, after the judge began to recite the facts and evidence, the judge engaged in conversation with defense counsel prior to sentencing, at which time counsel could have requested closing argument or at the very least objected to its omission. Counsel declined to do either and therefore waived the right to closing argument.”
“Counsel’s decision not to request closing argument could reflect a tactical decision to omit closing argument in a case that involved only two charges, included only two witnesses, and took only an afternoon to complete. Either closing argument was unnecessary given that the trial was to the bench or counsel’s omission of closing argument was a strategic decision not to prolong the conclusion of a simple case. Regardless, we conclude that the trial judge did not deny counsel the opportunity to request closing argument, that counsel failed to request closing argument, and furthermore that counsel did not object to its omission. Therefore, the defendant waived his right to closing argument.”
Contacts
Michael A. Oster Jr., 513.887.3474, for the state and Butler County prosecutor’s office.
Matthew T. Ernst, 513.579.9500, for James McCausland.
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