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Sidney v. Walters3/20/1997
Sara Martin could have testified to that or does he put anyone else to generate supposedly that night.
"Where were they to testify? I venture to guess that his other friends, when he stopped snowplowing there at DAP, they saw him. They could have testified. They were supposed to be his friends and they weren't. He didn't call them to testify. Where's all the people at C & C that saw him out there? * * * Where are they? Why didn't he put them on? * * * They're not here. * * * He knows he's drunk. Everybody he saw that night knew he was drunk and that's why they're not here today. * * * Why aren't they in here? We found out about it on direct examinations. Ask the defendant."
Throughout this argument, appellant's attorney made repeated objections which were, in turn, overruled by the trial court.
Generally, sustaining or overruling objections during closing argument is within the sound discretion of the trial court. State v. Montes (1993), 92 Ohio App.3d 539, 551, 636 N.E.2d 378, 385-386. Rulings on such objections, therefore, will be reversed only upon a clear showing that the trial court abused that discretion. Id.
Although prosecutors have wide latitude to comment in closing argument, they cannot intentionally mislead the jury by means of improper remarks or insinuations. Specifically, the prosecutor must avoid expressing personal beliefs or opinions as to a defendant's guilt and should refrain from commenting upon matters that are not in evidence or drawing inferences that are not supported by the evidence. State v. Lott (1990), 51 Ohio St.3d 160, 555 N.E.2d 293; State v. Smith (1984), 14 Ohio St.3d 13, 14, 14 OBR 317, 318-319, 470 N.E.2d 883, 885. Moreover, during closing arguments, "it is improper for counsel to * * * make statements which are intended to get evidence before the jury which counsel was not entitled to have the jury consider." Drake v. Caterpillar Tractor Co. (1984), 15 Ohio St.3d 346, 347, 15 OBR 468, 470, 474 N.E.2d 291, 293.
In reviewing the prosecutor's closing rebuttal argument in appellant's case, I find that the prosecutor not only expressed her opinion as to appellant's guilt,
she also made several statements that were not supported by the evidence concerning why appellant did not call certain witnesses to testify on his behalf. Therefore, the trial court abused its discretion in overruling appellant's objections during closing arguments.
However, misconduct of a prosecutor at trial will not be considered the sole grounds for reversal unless that conduct deprives the defendant of a fair trial. State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768. In making that determination, an appellate court must look at the evidence notwithstanding the improper conduct in deciding whether the error is harmless or not. See State v. Byrd (1987), 32 Ohio St.3d 79, 512 N.E.2d 611.
A finding of harmless error requires a reviewing court to conclude that the jury would have found the defendant guilty beyond a reasonable doubt absent the prosecutor's comments. State v. Smith, 14 Ohio St.3d at 15, 14 OBR at 319, 470 N.E.2d at 885. In the present case, the trial court never admonished the prosecutor nor gave any instructions to the jury to disregard any potential prejudice that might have arisen as a result of the prosecutor's actions during the trial. Therefore, I cannot find beyond a reasonable doubt that a jury would have found defendant guilty had there been no misconduct on the part of the prosecution.
For the foregoing reasons, I conclude that the appellant's two assignments of error are well taken. In accordance with this opinion,
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