When a criminal defendant does not object to an error made during the trial, regardless of the severity of the mistake, then the defendant appealing the case must prove the error impacted the outcome of the trial, the Supreme Court of Ohio ruled today.

A divided Supreme Court affirmed the conviction and 12-year prison sentence of James West. West claimed he was entitled to a new trial because the judge questioned him while on the witness stand and asked West whether he lied to police.

Writing the Court’s lead opinion, Justice Sharon L. Kennedy stated that when a defendant’s constitutional rights are violated during a trial, and the defendant objects, the trial court’s decision is reversible on appeal. But, as in West’s case, if no objection is raised during the trial, then the defendant must prove on appeal that the error changed the outcome of the trial.

“Even assuming that the judge’s questioning constitutes error, West’s convictions are nonetheless supported by overwhelming evidence of his guilt and he has not established that any error affected the outcome of his case,” Justice Kennedy wrote.

Justices Patrick F. Fischer and R. Patrick DeWine joined Justice Kennedy’s opinion. Chief Justice Maureen O’Connor concurred in judgment only.

In a dissenting opinion, Justice Michael P. Donnelly wrote the record supported West’s claim of judicial bias and other trial errors, which entitles West to a new trial.

In a separate dissenting opinion, Justice Jennifer Brunner wrote that when an appeals court finds a “structural error,” such as judicial bias, occurred during the trial, there is no requirement that a defendant prove the error impacted the outcome. She wrote that under Ohio court rules, even if West did not object at trial to the judge’s questioning, the judge’s actions necessitated a new trial.

Justice Melody Stewart joined Justice Brunner’s opinion.

Video Captured Liquor Store Argument, Shooting
In 2017, Patrick Akers drove to a Columbus liquor store. Two friends followed him in a separate car and waited outside while Akers went inside. West was in the store standing by a woman whom Akers knew. Akers asked West if he was in line. West said he would let Akers go in front of him if he “put $20 on his bottle.” Akers did not understand that West wanted him to pay for part of the cost of the liquor West was purchasing.

The two men started to argue, and West swatted the hat Akers was wearing. Other customers tried to separate them and deescalate the situation. When Akers left the store, West pushed past the other customers to follow him.

Outside, Akers signaled to his two friends to come over, warning of “static” with West. In the parking lot, two friends of West, one who was identified as “D,” got out of their car and approached Akers. The argument led to punching. According to Akers, D had two handguns, which both fell to the ground during the fighting. D picked up the guns.

Seeing the guns, Akers got behind his friend’s car. His two friends ran from the parking lot. West took one of D’s guns and fired at the car until he expended the ammunition clip. After West finished shooting, D ran from the scene, while firing shots at the car Akers was hiding behind. Akers was shot twice in the leg.

West drove away a few moments after the shooting and was soon apprehended by police. At the hospital, Akers identified West and another person from a photo array as the possible perpetrators.

Suspect Agreed to Police Interview
West agreed to be interviewed by police detectives and admitted he had a confrontation with Akers at the liquor store. He said someone punched him in the parking lot, but that he was by himself. He said after he heard gunshots, he drove away. He denied having a gun or shooting anyone.

West was indicted on two counts of felonious assault, both with firearm specifications, and for illegally possessing a weapon.

At the trial, the Franklin County Prosecutor’s Office presented the testimony of Akers, the responding police officers, and the detectives who interviewed West. The prosecutor also presented security-camera footage from inside and outside of the liquor store showing the altercation and shooting from multiple angles.

Judge Questioned Suspect on Stand
Against the advice of his attorney and a warning from the trial judge, West testified on his own behalf. He claimed Akers threatened to rob him in the store. West then narrated the parking lot security-camera footage , and he explained he was punched and was acting in self-defense.

The trial judge interjected and asked, “Is that you with the gun, shooting?” West admitted he was shooting a gun. West later explained he was aiming at the ground and trying to get everyone to clear the area. He said he never intended to shoot anyone.

The prosecutor questioned West more about the fight and was wrapping up the cross-examination when the judge asked the prosecutor, “Did he make a statement to the police?” The prosecutor, who had not covered the topic during cross-examination, then began asking about the statement West made when interviewed by the detectives.

As the prosecutor was questioning West, the judge interjected and stated, “You lied to the police, didn’t you?” West responded that he did to “give myself a fighting chance in court.” He explained he did not have a lawyer with him when he was questioned and did not want to confess to any crime at the time.

The judge stated that West waived his right to have an attorney and made a statement to the police, and that he didn’t tell the officers he acted in self-defense.

“It’s just that simple, right?” he asked West, who agreed.

West’s attorney did not object to the judge’s questioning.

After all the evidence was presented, the judge gave jury instructions to guide the jury's deliberations. He told the jury: “The next part is important. Sometimes I ask questions. However, any questions that I ask or any tone in my voice, because I can get aggravated, don’t take that as any indication of how I think the case should come out.” The judge told the jury that what he thinks should have no bearing on the case and not to place any emphasis on anything he asked.

“If I did anything disregard it,” he concluded.

West was found guilty on all counts, and during sentencing, the judge told West he believed West lied on the witness stand. West appealed his conviction to the Tenth District Court of Appeals, which affirmed the trial court. West appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Examined Judicial Bias Claim
The Supreme Court divided over how to assess West’s claim of judicial bias. In the lead opinion, Justice Kennedy explained that when a criminal defendant raises objections to perceived errors during the trial, any of those errors can be raised during an appeal. The objected errors are given a “harmless error” review, and the state has to prove the error deprived the defendant of a fair trial, the opinion explained.

But when no objection is raised, an error that is appealed is subject to “plain error” review, and the burden shifts to the defendant to prove that the error affected the outcome of the trial, the lead opinion stated.  Justice Kennedy noted that both the Ohio Supreme Court and the United States Supreme Court had rejected the proposition that there is any category of unobjected to error—including unobjected to constitutional error—that is not subject to the plain-error rule’s requirement that the defendant show a reasonable probability that the error made a difference to the outcome of the trial.

Because West’s attorney did not object to the judge’s questioning, West had to “demonstrate a reasonable probability that the judge’s errors prejudiced him,” the lead opinion stated.

The Court noted the judge instructed the jury not to draw any conclusions from his statements, and “no reasonable factfinder could have examined the evidence and determined that West’s assertion of self-defense was credible.” There is no reason to believe that without the judge’s comments, the jury would have acquitted West, Justice Kennedy concluded.

Judge’s Action Compromised Case, Dissent Stated
In his dissent, Justice Donnelly wrote the trial judge’s escalating intervention compromised West’s defense and aided the prosecution. He noted the judge intervened by asking West to acknowledge that was him on the video shooting. And without any questioning by the prosecution about West’s statement to the police, the judge raised the issue and helped the prosecutor pursue it, the dissent stated.

When the judge interjected that West lied to the police, “it communicated an unmistakable and more troubling message from the judge to jury: this defendant lies,” Justice Donnelly wrote. West’s case turned on the credibility of the witnesses, and the judge damaged West’s credibility, the dissent stated.

The judge also waited until the end of the trial to instruct the jury to disregard what he said, instead of telling the jurors to ignore his questions at the time he made them. This was “simply too little too late,” the dissent stated.

Justice Donnelly maintained the judge’s actions were “plain error,” and the record proved the judge was biased, which entitles West to a new trial.

Defendant Not Required to Prove Serious Error, Dissent Asserted
Justice Brunner wrote that she concurred with Justice Donnelly that West proved the error affected the outcome, which should result in a new trial. She wrote separately to state that under the rules governing criminal cases in Ohio, it was unnecessary for West to have to prove the judge’s behavior impacted the trial.

Justice Brunner stated that when structural errors, such as judicial bias, are raised, an appeals courts does not have to assess whether there is reasonable probability that the outcome would be different. Regardless of whether West objected to the error, once the appeals court found the judge was not impartial, a new trial should have been ordered, Justice Brunner concluded.

2020-0978. State v. West, Slip Opinion No. 2022-Ohio-1556.

View oral argument video of this case.

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