Sidney v. Walters3/20/1997
instructions from the court of the jury to disregard it, a new trial should be granted, or the judgment reversed, notwithstanding cautions, admonition, and instructions by the trial judge.' Book v. Erskine & Sons, Inc. (1951), 154 Ohio St. 391, 401 [43 O.O. 334, 338-339, 96 N.E.2d 289, 294]."
Moreover, absent an abuse of discretion, an appellate court will not reverse a trial court's determination of whether a prosecutor has gone beyond the bounds permitted. Pang v. Minch (1990), 53 Ohio St.3d 186, 194, 559 N.E.2d 1313, 1321.
Appellant initially contends that the prosecutor erred in questioning him about potential witnesses that were not called and further implying that had they been called, they would have testified that appellant was drunk that night. Specifically, appellant cites the following line of questioning as being prejudicial to him:
"Q. Okay. And didn't she call and complain about you because you were drunk?
"A. I don't know the extent of her conversation."
During a trial, an attorney may not present information that is not in evidence to a jury under the pretext of asking questions. See State v. Hunt (1994), 97 Ohio App.3d 372, 375-376, 646 N.E.2d 889, 890-892; 1 ABA Standards for Criminal Justice (2 Ed.1980 and 1986 Supp.) S.91, Standard 3-5.9. Further:
"It is indisputable that at the trial level it is highly improper for a lawyer to refer in colloquy, argument, or other context to factual matter beyond the scope of the evidence or the range of judicial notice. This is true whether the case is being tried to a court or a jury * * *." State v. Daugherty (1987), 41 Ohio App.3d 91, 92-93, 534 N.E.2d 888, 890.
By referring to the alleged belief of a person who had not been called to testify, the prosecutor in this case was attempting to introduce testimony that was not supported by admissible evidence. While an attorneys lack of familiarity with the Rules of Evidence may affect the question of whether misconduct was intentional or inadvertent, ignorance of the Rules of Evidence does not render questioning allowable where it would be otherwise improper. State v. Smidi (1993), 88 Ohio App.3d 177, 183, 623 N.E.2d 655, 658-659. Therefore, the trial court erred in overruling appellant's objections to questions that were asked of appellant that were not supported by evidence.
Appellant further maintains that the prosecutor again committed misconduct during her closing argument. The standard for prosecutorial misconduct in closing arguments was set out in State v. Braxton (1995), 102 Ohio App.3d 28, 41, 656 N.E.2d 970, 978-979:
"The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. * * * In making this determination, an appellate court should consider several factors: (1) the nature of the remarks, (2) whether an objection was made by counsel, (3) whether corrective instructions were given by the court, and (4) the strength of the evidence against the defendant."
Furthermore, the closing argument is considered in its entirety to determine whether it was prejudicial. State v. Moritz (1980), 68 Ohio St.2d 160, 157, 17 O.O.3d 92, 96-97, 407 N.E.2d 1268, 1273.
Specifically focusing on the prosecutor's rebuttal argument, it is noted that the following remarks were made:
"He calls her from the car phone and he still, she still wasn't answering the door. Why? Because something was going on with this man. He wasn't acting right. I venture to guess that he was drunk. If he wasn't, why wouldn't he call her as a witness? * * *
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