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Sidney v. Walters3/20/1997
t possible witnesses not called by either party during her cross-examination. The prosecutor repeatedly asked appellant why certain people were not called to testify on his behalf and implied in her questions that he did not call them to testify because they knew that he was drunk that night. Appellant's counsel made numerous objections to this line of questioning and was overruled repeatedly by the trial court. A motion to strike all of the questions and answers was again made prior to closing argument, as well as a motion to admonish the jury. Again, the trial court overruled the objection and denied the motions.
Additionally, appellant's attorney moved that the prosecution not be allowed to argue the failure of appellant to call witnesses or speculate as to what their potential testimony would be. That motion was also overruled. The trial court further rejected jury instructions concerning the failure to call witnesses.
During closing argument, the prosecutor argued that the defense did not call these witnesses because they knew he was drunk. Moreover, she expressed her opinion as to appellant's physical state on the night he was arrested. Again, appellant's counsel repeatedly objected during the prosecutor's closing arguments to no avail.
At the conclusion of the court's instructions to the jury, all defense motions were renewed and subsequently overruled in their entirety by the trial judge. After deliberations, the jury found appellant guilty of driving under the influence , a violation of R.C. 4511.191.
Appellant claims that his right to a fair trial was prejudiced by the prosecutor committing misconduct coupled with the failure of the court to take remediasaction. Specifically, appellant asserts the following two assignments of error:
"The prosecutor engaged in prosecutorial misconduct in her cross-examination of the defendant with respect to witnesses not called, including suggestions of what said witnesses may testify to if called, and the lower court erred in not sustaining objections and taking other appropriate corrective action with respect to said misconduct and in refusing to instruct the jury to disregard said improper questions and suggestions." (Emphasis sic.)
"The prosecutor engaged in prosecutorial misconduct in arguing that the failure of defendant to call witnesses was because such witnesses would be unfavorable to him and in speculating what the testimony of the uncalled witnesses would have been if they had been called and in making improper and unfounded comments about defendant's state of sobriety not based on the evidence and in expressing her opinion that the defendant was guilty and in expressing her personal belief as to the credibility of witnesses, and the lower court erred in not sustaining objections and taking other appropriate corrective action with respect to said misconduct and in refusing to instruct the jury to disregard said improper argument."
Because both of these assignments of error are so closely related, they are addressed simultaneously.
The Supreme Court of Ohio stated the standard of review relative to prosecutorial misconduct in State v. Maurer (1984), 15 Ohio St.3d 239, 266, 15 OBR 379, 402, 473 N.E.2d 768, 792-793:
"Ohio courts have suggested that the effect of counsel's misconduct `must be considered in the light of the whole case.' See, e.g., Mikula v. Baloph (1965), 9 Ohio App.2d 250, 258 [38 O.O.2d 311, 315, 224 N.E.2d 148, 155]. And where misconduct of counsel `* * * is of such a prejudicial character that the prejudice resulting therefrom cannot be eliminated or cured by prompt withdrawal, and admonition and
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