State of Ohio vs. Michael D. Jackson

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STATE OF OHIO, BELMONT COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, PLAINTIFF-APPELLEE, VS. MICHAEL D. JACKSON, DEFENDANT-APPELLANT. ) ) ) ) ) ) ) ) ) CASE NO. 99-BA-9 O P I N I O N CHARACTER OF PROCEEDINGS: Criminal Appeal from Belmont County, Western Division, Court Case No. 98CRB00916 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee: Frank Pierce Prosecuting Attorney Helen Yonak Assistant Prosecuting Attorney 147-A West Main Street St. Clairsville, Ohio 43950 For Defendant-Appellant: Atty. Dennis W. McNamara 88 East Broad Street Suite 1350 Columbus, Ohio 43215 JUDGES: Hon. Gene Donofrio Hon. Joseph J. Vukovich Hon. Cheryl L. Waite Dated: March 28, 2001 - 1 DONOFRIO, J. Defendant-appellant, Michael D. Jackson, appeals his conviction in the Belmont County Court, Western Division, for assault. In August 1998, James Buchanan, an inmate at the Belmont Correctional Institute, reported that he had been assaulted by appellant, a corrections officer at the facility. The Ohio State Highway Patrol investigated and determined that there was sufficient evidence to pursue criminal charges. On October 7, 1998, a Belmont County grand jury indicted appellant 2903.13(A), on one a count of first-degree assault in misdemeanor, violation and one of R.C. count of dereliction of duty in violation of R.C. 2921.44, a seconddegree misdemeanor. January 20, 1999. the State of The case proceeded to a jury trial on The trial court granted plaintiff-appellee, Ohio, represented by the Belmont County Prosecutor s Office, leave to dismiss the dereliction of duty charge. corrections Buchanan. At trial, officer Buchanan, testified another that inmate appellant and had another assaulted On January 21, 1999, the jury returned a verdict finding appellant guilty of assault. On January 26, 1999, the court sentenced appellant to 180 days in jail with 90 days suspended. This appeal followed. Appellant s first assignment of error states: - 2 THE TRIAL COURT ERRED WHEN IT EXCLUDED TESTIMONY THAT THE STATE S CRITICAL WITNESS DISLIKED AFRICAN-AMERICANS AND THAT THE WITNESS WAS TO RECEIVE FAVORABLE TREATMENT FOR HIS TESTIMONY. [TR., 193-95]. John Tate (Tate), a corrections officer at the prison, claimed to have witnessed the assault. At trial, appellant sought eliciting to evidence impeach in the Tate s form of testimony witness by testimony to extrinsic demonstrate specific instances of bias and racial prejudice by Tate. (Tr. 193-195). The trial court excluded the evidence, finding that the evidence was not relevant and that whatever probative value it offered would outweigh its prejudicial nature. (Tr. 194-195). Admission or exclusion of evidence is within the sound discretion of the trial court to determine and this court will not reverse that decision absent an abuse of discretion. State v. Finnerty (1989), 45 Ohio St.3d 104, 107. An abuse of discretion connotes more than an error of law or judgment; it implies that the court s attitude is unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157. Under showing Evid.R. of misrepresent bias, either extrinsic evidence. 616(A), a prejudice, by witness may interest, examination of be or the impeached any by motive witness or a to by The impeachment evidence must be relevant as required by Evid.R. 402. However, [a]lthough relevant, evidence if is not admissible its probative value is - 3 substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. Evid.R. 403(A). its Also, [a]lthough relevant, evidence may be excluded if probative considerations value of is undue substantially delay, or needless outweighed by presentation of cumulative evidence. Evid.R. 403(B). In this case, the evidence appellant sought to introduce was admissible under Evid.R. 616(A). However, it cannot be said that the trial court abused its discretion in finding that the evidence was not relevant or that the probative value of such evidence would have been substantially outweighed by the danger of unfair prejudice, misleading the jury. of confusion of the issues, or of Moreover, appellant s counsel elicited from Tate on cross-examination that he had used an improper racial remark, Therefore, the specifically probative the value of n the word, in the additional past. extrinsic evidence appellant sought to introduce could be considered as needless presentation of cumulative evidence and causing undue delay. Accordingly, appellant s first assignment of without merit. Appellant s second assignment of error states: THE TRIAL COURT ERRED WHEN IT FAILED TO DECLARE A MISTRIAL DURING THE TESTIMONY OF INFORMANT JAMES BUCHANAN. [TR., 62-63]. error is - 4 Near the conclusion of the direct examination of Buchanan, the victim, by appellee, the following transpired: Q. And were you interviewed by staff at the institution about the incident and was it investigated? A. Yes it was investigated. Q. Do you know who investigated it? A. I believe Mr. Burchett, he s an investigator, he questioned me about it, took a statement from me. Q. And after the statement, uh, what was done? A. I went _________ (inaudible). MR. MCNAMARA: THE COURT: I object. Excuse me? MR. MCNAMARA: Question that was asked what was done unless it means by him, he wouldn't know, so, I'm going to object. THE COURT: Yes, Ms. Yonak your question was what was done and Mr. Buchanan only what you know was a fact not what you ve been told but what you specifically observed what occurred if anything. [A]. I spoke to the highway patrol, he took, he questioned me and took a statement, I was given a polygraph test. MR. MCNAMARA: I object. THE COURT: Sustained. The Jury will disregard the reference by the witness to a polygraph examination. (Tr. 62). - 5 Appellant maintains that since the jury s determination at trial weighed heavily upon which witnesses they believed to be credible, Buchanan s testimony that he submitted to a polygraph examination bolstered his credibility and, thus, amounted to prejudicial error. Additionally, appellant asserts that the limiting instruction given by the trial court subsequent to sustaining his objection did not cure the effect of the error. The granting of a mistrial is within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 182. A reviewing court will not reverse the judgment of a trial court unless the court abused its discretion. State v. Abboud (1983), 13 Ohio App.3d 62. should not be declared, In a criminal case, a mistrial merely because some error or irregularity has intervened, unless the substantial rights of the accused or the prosecution are adversely affected. State v. Lukens (1990), 66 Ohio App.3d 794, 809. A mistrial, need be declared only when the ends of justice so require and a fair trial is no longer possible. State v. Franklin (1991), 62 Ohio St.3d 118, 127. In this case, any error arising from Buchanan s comment regarding a polygraph examination was harmless in view of the testimony presented at trial. It is difficult to speculate as to what the jury could or could not infer from the comment, and, as the Ohio Supreme Court has stated, it is presumed that the - 6 jury will follow the instructions given to it by the judge. State v. Stallings (2000), 89 Ohio St.3d 280, 286. The record reflects that the trial court admonished the jury to disregard Buchanan s comment. In addition, results of the polygraph were not testified to. In sum, appellant has failed to demonstrate how Buchanan s comment prejudiced him or affected his substantial rights. Given the totality of the circumstances, the trial court did not abuse its discretion in deciding not to order a mistrial. Accordingly, appellant s second assignment of error is without merit. Appellant s third assignment of error states: THE TRIAL COURT ERRED WHEN IT PERMITTED PROSECUTORIAL MISCONDUCT. [TR., 62-63, 227, 234, 242, 265-270]. Appellant alleges that throughout trial, the prosecutor engaged in misconduct by asking questions upon which there was no evidentiary polygraph opinion basis, examination during asking and closing questions repeatedly argument, all with reference expressing his of which to a personal collectively deprived appellant of his Fourteenth Amendment right to due process. The test for prosecutorial misconduct is whether the prosecutor s remarks are improper and, if so, whether those comments prejudicially affected the substantial rights of the - 7 accused. State v. Lott (1990), 51 Ohio St.3d 160, 165. The Supreme Court has held that the touchstone of a due process analysis in a case of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. See Smith v. Phillips (1982), 455 U.S. 209, 219. Appellant cites two instances in support of his allegation that the prosecutor made reference to facts not in evidence while questioning witnesses. First, appellant claims that during cross-examination of witnesses who were present at a meeting which appellant called, the prosecutor suggested that Corrections Officer Burress s recollection of the meeting was most accurate because he had secretly recorded the meeting. Further, appellant submits that since there was no factual basis in the record to support improperly detracted from called appellant. At by such an the credibility trial, assertion, the of incident the prosecutor the transpired follows: Q. Okay. You mean you do admit that Burress remarks to you were, you know, you ve got to come forward and tell the truth? A. That s what he was saying, yes. * * * Q. Okay, all right and him something along the all stick to the story can t be in trouble for witnesses was your response to lines, look, if we we started with, we purgery (sic.)? as - 8 A. No. Q. Okay and if I suggested to you that maybe that conversation was tape recorded, would you want to change your testimony, would you want to change your answer? A. No, because I don t remember him saying that. (Tr. 234). Additionally, appellant states that the prosecutor improperly discredited Correction Officer Younkins by suggesting that her testimony had been bought by appellant since he had sent her flowers. On cross-examination of Ms. Younkins, the prosecutor stated: Q. Ms. Younkins, you testified you have no connection with Captain Jackson? A. Yes sir. Q. He sent you flowers, didn t he? A. I don t know who they came from. (Tr. 242). Appellant s counsel incidents at trial. failed to object to these alleged Due to the fact that defense counsel failed to object to the alleged prosecutorial misconduct, the alleged improprieties are waived, absent plain error. State v. White (1998), 82 Ohio St.3d 16, 22. Plain error will only be held to exist when the outcome of the proceedings clearly would have been different if the misconduct had not occurred. State v. Waddell (1996), 75 Ohio St.3d 163, 166. We find that these - 9 inferences could not have impeded the jury s decision, as they dealt with minor issues of credibility and did not carry the weight that appellant wishes this court to assign to them. Appellant s brief incorporates by reference the identical argument offered under his second assignment of error and suggests that the prosecutor improperly adduced testimony that investigating alleged officers victim consideration had of did not institute submitted the to a recommended charges polygraph disposition until exam. of the In appellant s second assignment of error, appellant s argument that the same conduct amounted to prosecutorial misconduct is not well-taken. Appellant expressed during his his contends personal closing that the opinion on argument in prosecutor three an credibility of appellant s evidence. impermissibly different attempt to occasions attack the Appellant alleges that the first instance of misconduct occurred when the prosecutor stated that Robert Gaskins had lied so much that he was going to faint while testifying. However, on the record, the prosecutor stated: * * * I want you to think back, think back about how Mr. Gaskins and Mr. McGuire and Ms. Younkins appeared on that witness stand. I thought that Mr. Gaskins was at one point in time going to faint.. MR. MCNAMARA: Objection, your Honor. - 10 THE COURT: Let _____(inaudible). personal opinions be MR. MCNAMARA: Yes. THE COURT: I ll sustain that. (Tr. 265266). Secondly, appellant asserts that the prosecutor acted improperly when he told the jury that the defense witnesses were hapless perjurers. The prosecutor stated: * * * Either the defense witnesses are lying or they re telling the truth. Although, I try to give those three hapless purgerors (sic.) an out by letting them testify that it might be possible... MR. MCNAMARA: I object, your Honor. THE COURT: Overruled. (Tr. 267). Finally, appellant submits that the prosecutor conducted himself improperly when he informed the jury that appellee s witnesses accurately reflected what happened and the witnesses called by appellant claimed that they did not see the alleged incident incident. occur rather than risk becoming involved The remark in question was as follows: * * * An inmate and two of the witnesses saw it and testified to it and three people conveniently pretended that they didn't see it because they didn t want to get involved. MR. MCNAMARA: I object, your Honor. THE COURT: Overruled. (Tr. 270). with the - 11 A prosecutor has considerable latitude in closing arguments to draw reasonable inferences from the Goodwin (1999), 84 Ohio St.3d 331, 340. evidence. State v. A prosecutor s use of emotionally charged epithets is not unfair per se, but must be viewed in the context of the entire trial to see if due process has been denied to the defendant. State v. Bowen (Dec. 8, 1999), Columbiana App. No. 96 CO 68, unreported, 1999 WL 1138583 at *14. In this case, we find that while the prosecutor s remarks did not rise to the level of prosecutorial misconduct, they were at the very least borderline. Supreme Court has allowed We have noted that, [t]he subjectivity on the part of the prosecutor and has characterized borderline comments as being marginally permissible after consideration of the context and the evidence. State v. Houseman (June 29, 2000), Belmont App. No. 98 BA 4, unreported, 2000 WL 875336 at *3, citing State v. Clemons (1998), 82 Ohio St.3d 438, 452. Since appellee was trying to prove that appellant did, in fact, assault Buchanan, the prosecutor s comment underscores appellee s theory of the case that appellant s version of what happened was contradicted by the evidence. See Clemons, 82 Ohio St.3d at 452. Viewed in the context of the entire trial, it cannot be said that the prosecutor s remarks denied appellant a fair trial. - 12 Accordingly, appellant s third assignment of error without merit. The judgment of the trial court is hereby affirmed. Vukovich, J., concurs Waite, J., concurs is

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