State v. DePew

Wright, J.,

concurring in part and dissenting in part. While I would affirm appellant’s conviction, I would reverse his sentence of death and remand for resentencing.

I

At the outset, I would stress my respect for my colleagues in the majority because I believe that they share my regard for fundamental fairness and due process. As a court of last resort, it is imperative that we be sensitive to these considerations. However, I must part company with my brethren because the record before us contains examples of prosecutorial misconduct of the worst sort.

Although the majority opinion concedes that the prosecution indulged in misconduct during the penalty stage of the trial, it asserts — in what has become a frequent refrain in far too many criminal cases before us — that the errors were “harmless.” Once again, the majority denounces the prosecutorial misconduct obvious in this case, but allows it to continue unheeded, permitting the state to further chip away at the right to fundamental due process and a fair trial pursuant to the Fifth and Fourteenth Amendments to the United States Constitution. As Judge Jerome Frank aptly stated in his classic dissent in United States v. Antonelli Fireworks Co. (C.A. 2, 1946), 155 F. 2d 631 , 661:

“This court has several times used vigorous language in denouncing government counsel for such conduct * * *. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel’s alleged offenses, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, ‘Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of “disapproved” remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.’ Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court — recalling the bitter tear shed by the Walrus as he ate the oysters — breeds a deplorably cynical attitude towards the judiciary.”

In addition, the majority asserts that the prejudicial effect of many of the prosecutor’s remarks was “greatly minimized” by curative instructions by the judge, and in a few cases, apologies by the prosecutor and requests to the jury that they disregard his remarks. It is pure sophistry to argue that limiting instructions or prosecutorial apologies obviate the serious damage that results from improper comments. The giving of these limiting instructions is akin to trying to efface indelible ink with an eraser. The *294 more you try to erase the mistake, the more you call attention to it — until finally you are tearing the very fiber of due process protections.

Judge Learned Hand once wrote that the curative instruction is a “device which satisfies form while it violates substance; that is, the recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody’s else.” Nash v. United States (C.A. 2, 1932), 54 F. 2d 1006, 1007 . Judge Frank stated that such an instruction “is a kind of ‘judicial lie’: It undermines a moral relationship between the courts, the jurors, and the public; like any other judicial deception, it damages the decent administration of justice.” United States v. Grunewald (C.A. 2, 1956), 233 F. 2d 556, 574 (dissenting opinion). And Justice Felix Frankfurter once asserted that the prosecution “should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.” Delli Paoli v. United States (1957), 352 U.S. 232, 248 (dissenting opinion).

For these reasons, curative instructions are disfavored by courts. But this disfavor rises to a level of condemnation when the error is so egregious that the instructions or comments designed to remove the prejudicial effect are rendered nugatory. 9

II

The majority places heavy reliance on these two arguments — “harmless error” and the effective use of curative instructions — in finding that prosecutorial misconduct in this case was nonprejudicial. As discussed infra, I believe the untoward conduct of the prosecution improperly inflamed the passion of the jury and any assertion that such passion was quelled by curative instructions or that the effect on the jury was harmless is without merit.

A

At an evidentiary hearing prior to trial, the state certainly set the tone of the proceedings with the following colloquy between the trial judge and the prosecutor:

“BY THE COURT: Would that be fair to the defendant in this case?

“MR. SAGE: Well I don’t care what’s fair to the defendant, Your Honor.”

In an effort to insure that an accused receives a fair trial, the Code of Professional Responsibility requires the following of the prosecutor:

*295 “The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict. This special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and (3) in our system of criminal justice the accused is to be given the benefit of all reasonable doubts * * *.” EC 7-13 of the Code of Professional Responsibility-

Standing alone, this flippant remark by the prosecutor was harmless, but what followed certainly was not. As will be shown, the cumulative effect of this misconduct was to deny appellant a fair trial in connection with mitigation.

1

Appellant produced substantial evidence that prior to the terrible offenses for which he was tried, he had not violated the law and had lived a productive life. In an effort to convince the jury that the offenses involved were the product of a one-time instance of aberrational misconduct, twenty witnesses testified concerning appellant’s character, personality, and lifestyle.

Among others, Mike Dingledine testified that the appellant was a quiet and easy-going person. On cross-examination, the prosecutor attempted to rebut this testimony by introducing the fact that appellant had previously been involved in a knife fight at a convenience store. Defense counsel objected to the question and moved for a mistrial, alleging that no facts were elicited on direct examination which demonstrated that a knife fight had taken place. Instead, defense counsel explained that appellant walked out of the store and someone stabbed him. No fight actually occurred and the prosecutor reluctantly conceded that he had no evidence to the contrary.

The trial court agreed with defense counsel that a fight had not taken place, stating, “I mean, the fact is, if it wasn’t a fight, if he just got stuck with a knife — that’s not a fight.” The court sustained the objection, did not grant the mistrial, and gave a curative instruction to the jury to disregard the information concerning the so-called “knife fight.”

The tactic used by the prosecutor was clearly improper. “The attempt to communicate by innuendo through the questioning of witnesses when the questioner has no evidence to support the innuendo is improper.” State v. Williams (1977), 51 Ohio St. 2d 112, 119 , 5 O.O. 3d 98, 102, 364 N.E. 2d 1364, 1368 , vacated as to the death penalty (1978), 438 U.S. 911 .

The prosecutor also violated standards set forth by the American Bar Association, which provide that it “is unprofessional conduct to ask a question which implies the existence of a factual predicate which the examiner cannot support by evidence.” ABA Standards Relating to the Prosecution Function and the Defense Function, The Prosecution Function (1970) 39, Section 5.7(d).

While admitting that the prosecutor’s action in this regard was improper, the majority states that “it was not so egregious as to require reversal.” In other words, the error was harmless.

*296 2

In the present case, appellant was on trial for the crimes of aggravated murder, which occurred on November 23, 1984. After that date, appellant was arrested and convicted for the unrelated crime of receiving stolen property.

No reference was made to the later conviction during the guilt phase; however, the subject was raised at the mitigation hearing. Appellant made an unsworn statement to the jury in which he stated he had “never been arrested or convicted of anything before the night this happened.” During the mitigation hearing, the prosecutor told the jury that appellant “wouldn’t sit in that [witness] chair because then he would have to answer my questions. And then I would ask him if he’s ever been convicted of a criminal offense after the date in question in this case.” Defense counsel immediately objected and sought a mistrial, which the trial court denied. Instead, the court gave a “curative” instruction and the prosecutor apologized for a highly improper comment.

In further discussing appellant’s unsworn statement, the prosecutor stated:

“The other thing I thought in this case, you know, nothing in this case can be fun, and I don’t mean for it to be that way. But the gentleman for the defendant, he told you five different times about the oath you took, and about the oath we all take, and the oath I take, and the oath you take — everybody takes the oath except the defendant; he isn’t man enough to get up here and take the oath. Everybody in this case raised his right hand to this man, and he says I solemnly swear to tell the truth, the whole truth and nothing but the truth so help me God. Everybody except DePew.”

The majority agrees that the prosecutor exceeded permissible comment on the unsworn statement. The comment did not go to the fact that the defendant’s statement had less credibility because it was not under oath; instead, it encompassed another crime committed by appellant. As a result, the comment was clearly prejudicial under any rationale.

In State v. Jenkins (1984), 15 Ohio St. 3d 164 , 15 OBR 311, 473 N.E. 2d 264 , this court had an opportunity to examine prosecutorial comments on the unsworn nature of a defendant’s statement. One of four key factors the Jenkins court listed was “the prosecutor’s comments were limited to the fact that unlike other witnesses, the statement of appellant was not made under oath.” Id. at 217 , 15 OBR at 357, 473 N.E. 2d at 310 . As a result, in State v. Mapes (1985), 19 Ohio St. 3d 108 , 19 OBR 318, 484 N.E. 2d 140 , and Jenkins , this court focused on the importance of the limited, scope of the prosecutor’s comments as determining their propriety.

Since the prosecutor’s comments exceeded the limits of commenting on the unsworn nature of the statement, appellant’s mitigation hearing was infected with prejudicial information.

The majority holds that the prosecutor’s statement that he wanted to ask appellant about a later criminal conviction was “not so prejudicial as to require reversal.” Concerning the discussion of the unsworn statement, the majority states: “While the remarks made herein surely exceed the proper scope of comment set forth, today, we find that such remarks are harmless error in light of the overwhelming weight of the aggravating circumstances in this case relative to the factors offered in mitigation.” I disagree.

3

At the mitigation hearing, a photo *297 graph was offered and admitted into evidence that depicted appellant standing next to a marijuana plant. The prosecutor referred to this photograph in his closing argument:

“[S]o we thought we would show you a few things we thought were relevant — we thought were relevant, you know, to the last five years. There it says self and little brother, first year, (unclear) homegrown ten feet tall. Growing a little grass there you see.”

The majority concedes that this photograph had no other purpose than to incite prejudice against appellant. The introduction of and the reference to the photograph were irrelevant for purposes of the sentencing phase of appellant’s trial. Nevertheless, the majority again held that admission of “this single photograph” — without reference to the concomitant prosecutorial comments — was harmless error.

4

Finally, the prosecutor made several comments during the closing argument in the mitigation phase of the trial that were so egregious that they clearly denied appellant’s right to a fundamentally fair sentencing hearing as guaranteed by the Constitution.

The prosecutor made the following improper comments about the possible sentences that appellant could receive:

“The defense says, and I knew they would, it doesn’t make any difference what kind of penalty that you put on him because any sentence you give him is the death sentence. But that’s not true. That’s not true. Why, my goodness, Sirhan Sirhan is talking about getting out for killing Bobby Kennedy.”

After defense counsel objected, the prosecutor continued as follows:

“Well, if Your Honor please, he led them to believe that life means life, and it doesn’t necessarily mean that, as the court knows. * *

“Now, you’re going to have a lot of * * * three options in this case, and you know what the three of them are. But what I’m telling you, when you hear, as the defendant told you, that twenty to life * * * or life with eligibility in twenty means you’re going to be there for life — that’s not necessarily true.

“It’s not necessarily true that if you get three counts of twenty to life that it will add up to sixty — that’s not necessarily true. And that’s the way the law is.”

The prosecutor misstated the law and was speculating as to the possibility that appellant could receive parole, which could shorten his sentence. The possibility of parole is outside the province of the jury and impossible under the present law. California v. Ramos (1983), 463 U.S. 992, 1026, fn. 13; Farris v. State (Tenn. 1976), 535 S.W. 2d 608, 609 . As the Tennessee Supreme Court noted in Farris v. State, supra, at 614, jurors should not be informed about the possibility of parole because “jurors tend to attempt to compensate for future clemency by imposing harsher sentences.” Similarly, in the present case appellant was prejudiced beyond doubt because the jurors may have imposed a harsher sentence because of the prosecutor’s comments.

In addition, Prosecutor Holcomb alluded to several facts in the closing argument that were not in evidence. The prosecutor told the jury that appellant’s confession was not voluntary in that appellant made the confession only after he knew his girlfriend had turned him in, which was four months after the crime. Nothing in the trial record supports the foregoing statement. Although defense counsel did not object, a prosecutorial argument reciting facts not in evidence is plain *298 error “[w]here an error seriously affects the basic fairness of the judicial process.” State v. Goodin (Nov. 23, 1977), Hamilton App. No. C-76510, unreported, at 35.

The prosecutor also asked the jurors why appellant did not present certain witnesses in the mitigation phase. In particular, the prosecutor asked the jurors why Debbie Sowers did not testify. He suggested that Sowers did not testify because she would then be subjected to cross-examination. The innuendo is that appellant was hiding something. Once again, the prosecutor was referring to facts outside the record and improperly bringing to the jurors’ attention witnesses who did not testify on behalf of the appellant.

Relying on Darden v. Wainwright (1986), 477 U.S. 168, 181 , the majority conceded that these remarks were improper but held that they “did not render the penalty stage of appellant’s trial fundamentally unfair.” In other words, the majority again found “harmless error.”

The majority’s reliance on Darden , however, is misplaced for several reasons. First, the prosecutorial remarks challenged in Darden occurred during the guilt-innocence stage of the trial and not the penalty stage, as is the case here. Second, the Darden case involved altogether different prosecutorial comments than those expounded by the prosecutor in the instant case 10 and much of the objectionable content in Darden was invited by or was responsive to remarks by defense counsel. Finally, the Darden case stated — and today’s majority attempts to echo — that the prosecutor’s arguments “did not manipulate or misstate the evidence.” Id. at 182 . While that may have been true in Darden , it certainly, is not the case here. The prosecutor’s statement to the jury that “[i]t’s not necessarily true that if you get three counts of twenty to life that it will add up to sixty — that’s not necessarily true” is a clear-cut misstatement of law. The majority’s suggestion that this comment “does not involve a total misstatement of the law” is inherently illogical. In addition, it is obvious that many of the prosecutor’s improper comments concerning facts not in evidence, some of which he apologized to the jury for making, obviously involve a manipulation of the evidence, which is clearly proscribed by Darden .

B

In addressing the various acts of prosecutorial misconduct, the majority treats the improper remarks and comments by the prosecutor divisibly — as individual errors. But prosecutorial misconduct is indivisible. The improper remarks made by the prosecutor in this case were not made in a vacuum; they were made to an impressionable jury.

Individually, which was the way the aforementioned errors were treated by the majority, some of the prosecutorial misconduct may indeed have proved harmless. But the cumulative effect of these transgressions, which was the true effect felt by the jury, denied appellant a fair trial. See State v. Beuke (1988), 38 Ohio St. 3d *299 29, 46 , 526 N.E. 2d 274, 291 (Wright, J., dissenting).

As the United States Court of Appeals for the Eleventh Circuit stated when it addressed the harmful effects of prosecutorial misconduct in a case such as this: “[I]t is most important that the sentencing phase of the [capital] trial not be influenced by passion, prejudice, or any other arbitrary factor. * * * With a man’s life at stake, a prosecutor should not play on the passions of the jury.” Hance v. Zant (C.A. 11, 1983), 696 F. 2d 940, 951 , certiorari denied (1983), 463 U.S. 1210 .

C

Finally, I find the majority’s “solution” to the problem of prejudicial prosecutorial misconduct particularly troublesome.

Unlike most of the countries throughout the world, our system is keyed to fair play and places the prosecution in the ofttimes difficult position of being a vigorous advocate for guilt and punishment while at the same time a defender of the accused’s right to a fair trial.

Historically, the courts have ordered a new trial when the representative of the state strays from this role in a substantial fashion. The majority opinion concedes that repeated departures from the norm occurred by way of egregious misconduct by the state. A substantial amount of mitigating testimony was given in this case and the jury deliberated at great length.

I am troubled by the seeming departure from past case law that would compel reversal of the penalty phase of these proceedings and the suggestion that we should handle blatant prosecutorial misconduct through the Office of Disciplinary Counsel. I submit that this is cold comfort to the appellant who faces death by electrocution.

Ill

As I previously mentioned, I by no means intend to suggest that my colleagues in the majority are insensitive to the due process rights of appellant. Such is most certainly not the case. However, by implication and direct comment, they clearly suggest that the public demands retribution by way of the death sentence where the facts reveal a brutal and senseless murder. I share this sense of outrage. Where we part company is the method used to achieve the ultimate goal in our Anglo-American system of criminal jurisprudence.

I cannot accept the notion that a popular result can always be equated with defending the rights of a criminal defendant. I am painfully aware that the “unpopular” position I take today will gain no plaudits but that is often the case when a court is dealing with the due process rights of an accused.

Therefore, for the foregoing reasons, I respectfully dissent from the result achieved by the majority.

H. Brown, J., concurs in the foregoing dissenting opinion.

A recent study by the American Bar Foundation and Northwestern University indicates that juries are not likely to heed a judge’s instruction or admonition to ignore certain evidence they have heard. Allen, When Jurors Aré Ordered to Ignore Testimony, They Ignore the Order (Jan. 26, 1988), Wall St. J., at 31, col. 3.

“The American Bar Foundation experiment is one of the latest in a growing body of research by social scientists suggesting the limits of judicial admonishments. In the experiment, 536 subjects were shown a videotape of closing arguments in a mock trial of police officers accused of improperly searching the house of a suspected criminal * * *. About a third of the viewers were told the search turned up incriminating evidence, which the judge instructed them to ignore since it wasn’t relevant to determining the reasonableness of the police conduct.

“But researchers found that, far from disregarding the results of the search, jurors tended to use them to make sense of preceding events, a phenomenon psychologists call ‘hindsight bias.’ When evidence of criminality was found, for example, jurors remembered evidence that supported the officers’ story. They even remembered the policeman to be experienced — a fact not mentioned in the trial. * * *” Id. at col. 2-3.

In Darden, the prosecutor attempted to place some of the blame for the crime on the Division of Corrections because the defendant was on a weekend furlough from a prison when the crime occurred. The prosecutor also implied the death penalty would be the only guarantee against a future similar act and characterized the defendant as an “animal” after defense counsel stated that the perpetrator of the crimes was an “animal.” Id. at 179-180.