 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Flemming9/5/1996
s attempt to discredit Oliver's handling of appellant that evening. Specifically, Oliver was questioned as to why he did not submit appellant to a Breathalyzer or urine test to test for intoxication. The state's eliciting the commendation testimony during Oliver's re-direct examination was in response to this line of questioning, and did not undermine the jury's responsibility to determine if appellant committed the offenses for which he was charged. Campbell; compare, State v. Price (Jan. 31, 1995), Franklin App. No. 94APA07-1012, unreported (testimony regarding police officer's investigation not offered for improper purpose when defense counsel intimated that investigation was inadequate for failure to obtain fingerprints).
Appellant's first, second and third assignments of error are accordingly overruled.
B.
Appellant, in his fourth assignment of error, charges that two instances of prosecutorial misconduct denied him his right to a fair trial as guaranteed under the United States and Ohio Constitutions. Since no objections were made following the two instances, our review of this assignment is under a plain error analysis. Civ.R. 52(B); Campbell.
The test for prosecutorial misconduct is whether remarks or actions were improper and, if so, whether they prejudicially affected the substantial rights of the accused. State v. Lott (1990), 51 Ohio St.3d 160, 162, certiorari denied (1990), 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 596; State v. Smith (1984), 14 Ohio St.3d 13. One consideration is whether the misconduct concerns an isolated incident. State v. Keenan (1993), 66 Ohio St.3d 401, 410. Misconduct of a prosecutor does not warrant a reversal unless the conduct deprived the defendant of a fair trial. Id., 405; State v. Apanovitch (1987), 33 Ohio St.3d 19; see State v. Maurer (1984), 15 Ohio St.3d 239, certiorari denied (1985), 472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 728.
Misconduct allegedly first occurred during Oliver's re-direct examination when the state opened questioning as follows:
Q: Yes, your Honor, thank you.
Officer Oliver, let me try and raise you above the smoke screen here for a second and ask you a question. Was this a DUI stop or a homicide? (Emphasis added.)
In State v. Braxton (Feb. 16, 1995), Cuyahoga App. No. 66859, unreported, the defendant argued on appeal that he was denied a fair trial, in part, by the prosecutor's opinion that the defense was hiding behind a "smoke screen." We characterized the prosecutor's comment as intimating that defense counsel "'had suborned perjury by manufacturing, conceiving and fashioning lies.'" Id., citing Keenan and Smith. Noting that the comment was isolated, and in light of the entire case, we concluded that the comment was harmless beyond a reasonable doubt.
Herein, the state's reference to a smoke screen did not relate to defense counsel's "suborning perjury, etc." As noted supra, Oliver's re-direct examination followed defense counsel's attempt to demonstrate to the jury that appellant's arresting officers somehow mishandled the case against appellant by not checking his level of intoxication. In fact, defense counsel's last seemingly sarcastic comment to Oliver during cross-examination was that Oliver would have testified that appellant would have passed a field sobriety test. The "smoke screen" comment related to defense counsel's undue emphasis on the lack of testing, not on any evidence relating to appellant's defense. Under these circumstances, this court finds that the prosecutor's comment was not improper under the standard set forth by Keenan, Lott and Brady.
The second alleged incident of misconduct concerns
Page 1 2 3 4 5 6 7 8 9 10 Ohio DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|