State v. Draughn
| Decision Date | 24 June 1992 |
| Docket Number | No. CA,CA |
| Parties | The STATE of Ohio, Appellee, v. DRAUGHN, Appellant. 91-30. |
| Court | Ohio Court of Appeals |
W. Allen Wolfe, Pros. Atty., and Mark C. Fleegle, Zanesville, for appellee.
Ken Murray and Paul Croushore, Columbus, for appellant.
Following a jury trial in the Court of Common Pleas of Muskingum County, appellant, Alvin B. Draughn, was convicted of aggravated trafficking (R.C. 2925.03[A] ) with a prior conviction specification (R.C. 2925.03[C] ), and sentenced to five to fifteen years' incarceration. Appellant appeals and makes the following assignments of error:
In late 1990, Shawnte Hollins was trying to sell a pair of shoes in Edna's Bar. Because Hollins's father owed appellant money, appellant took the shoes, striking Hollins in the face with the shoes. Hollins told appellant, "[p]ayback's a bitch."
Hollins went to the police station, intent on getting revenge on appellant. He asked police to take him to the hospital, and requested to work with the undercover drug unit. He told the police that he wanted revenge on appellant. Hollins used drugs in the past and knew the local dealers.
Hollins made thirteen to fourteen controlled drug buys for police. The police paid Hollins $50 for each of the twenty-three charges the buys produced. Hollins was given a $150 Christmas bonus and a $1,000 bonus when he finished his work. When Hollins began working for the police, no charges were pending against him.
On December 14, 1990, Hollins went to the house appellant shared with his girlfriend to make a controlled buy. He initially bought a $50 rock of cocaine from appellant's girlfriend. Appellant told Hollins that he had some "shakes" or "crumbs" (pieces of a rock of cocaine). Hollins told appellant he would return later in the day.
The police took Hollins to the Muskingum County Fair Grounds and searched him. They gave him $50 and took him back to appellant's house.
Appellant was sleeping when Hollins returned. Appellant woke up and told Hollins he did not have the crumbs. Appellant's girlfriend handed appellant a rock of cocaine, which he sold to Hollins for $50. The transaction was recorded through electronic surveillance.
Following jury trial in Muskingum County Common Pleas Court, appellant was convicted of aggravated trafficking and sentenced.
On June 17, 1991, appellant was found not competent to stand trial. He received treatment.
In a report dated September 6, 1991, and filed with the court on September 13, 1991, appellant was found to be competent to stand trial by the Ohio Department of Mental Health. The court found him competent on September 16, 1991, and trial commenced on September 23.
Appellant argues the court should have inquired into his competence after trial began, due to his irrational behavior: (1) appellant insisted on wearing his orange prison jumpsuit for trial; (2) appellant answered a question concerning whether counsel was correct with the response, "More so, yes"; (3) appellant did not inform counsel of a potential alibi witness until several days before trial.
A defendant is not competent to stand trial if his mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing a defense. Drope v. Missouri (1975), 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103, 112.
After trial commences, the court need only conduct a competency hearing for good cause shown. R.C. 2945.37(A). This determination is within the sound discretion of the trial court. State v. Rahman (1986), 23 Ohio St.3d 146, 156, 23 OBR 315, 323, 492 N.E.2d 401, 410.
In determining whether to sua sponte hold a competency hearing, the court should consider: (1) doubts expressed by counsel as to competency; (2) evidence of irrational behavior; (3) the defendant's demeanor at trial; and (4) prior medical opinion concerning competency. State v. Rubenstein (1987), 40 Ohio App.3d 57, 531 N.E.2d 732, paragraph two of the syllabus.
Counsel did not express doubts concerning competency at trial, and did not object to admission of the report finding appellant competent.
The alleged instances of irrational behavior are insufficient to require inquiry into competency. Appellant told the court that he had civilian clothes, but that he did not want to wear them. He stated that his attorneys explained that he was facing a five to twenty-five year sentence and he felt it did not matter what he wore for trial. He stated that he would only wear civilian clothes if they physically dressed him. As to his response of, "More so, yes," when the court again sought a response, appellant replied, "Yes." Informing counsel late of a potential witness is not so irrational so as to require the court to inquire into competency. The record does not demonstrate irrational behavior or unusual demeanor of an extent that would require inquiry into competency. See Rubenstein, supra (); Rahman, supra ().
Further, a medical report filed September 13, signed by a psychiatrist, found appellant competent to stand trial. The report states that he was enjoying good remission, which was not chemically induced.
The court did not abuse its discretion in not inquiring into competency during trial. The first assignment of error is overruled.
Appellant argues that the trial court erred in overruling his motion for a mistrial based on the misconduct of the prosecutor in closing argument.
In making closing argument, the defendant and the state are entitled to a level playing field. The constitutional advantage given to the defendant is the presumption of innocence and corresponding high burden of proof placed on the state. As part of the systemic effort to keep the playing field level, the state is given the right to open and close both the evidence and argument--a legitimate quid pro quo.
In opening closing argument the prosecutor is limited to comments upon the evidence, and the logical and appropriate conclusions to be drawn therefrom. Thus, he can bolster his own witnesses, and conclude by saying, in effect, "The evidence supports the conclusion that these witnesses are telling the truth." He cannot say, "I believe these witnesses," because such argument invades the province of the jury, and invites the jury to decide the case based upon the credibility and status of the prosecutor. See State v. Smith (1984), 14 Ohio St.3d 13, 14 OBR 317, 470 N.E.2d 883. In a sense, such argument by the prosecutor injects himself into the trial as a thirteenth juror, and claims to himself the first vote in the jury room. Further, it is inappropriate for the prosecutor to vouch for the integrity of his witnesses. Id.
As to the defense witnesses, including the defendant, the prosecutor may comment upon the testimony, and suggest the conclusions to be drawn therefrom. He can say, "The evidence supports the conclusion that the defendant is lying, is not telling the truth, is scheming, has ulterior motives, including his own hide, for not telling the truth." See State v. Strobel (1988), 51 Ohio App.3d 31, 554 N.E.2d 916. He may not say, "I believe the defendant is lying," for the same reasons as above.
In his rebuttal argument, the prosecutor may argue that the evidence does not support the conclusion postulated by defense counsel. He may comment upon the circumstances of witnesses in their testimony, including their interest in the case, their demeanor, their peculiar opportunity to review the facts, their general intelligence, and their level of awareness as to what is going on. He may conclude by arguing that these circumstances make the witnesses more or less believable and deserving of more or less weight.
Generally the credibility of various witnesses will now have been put in issue by the argument of the defense. Considerable additional latitude is due the prosecutor at this juncture, either on fair play grounds or because the comments are invited by the defense. The prosecutor should be allowed to go as far as defense counsel. Thus, if the defense accuses witnesses of lying, the prosecutor should have the same right.
However, the prosecutor may not invite the jury to judge the case upon standards or grounds other than the evidence and law of the case. Thus, he cannot inflame the passion and prejudice of the jury by appealing to community abhorrence or expectations with respect to crime in general, or crime of the specific type involved in the case. United States v. Solivan (C.A.6, 1991), 937 F.2d 1146.
The prosecutor is not only entitled, he is encouraged to advocate strongly, even vehemently, for conviction. But while he may strike hard blows, the prosecutor is not at liberty to strike foul ones. Berger v. United States (1935), 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314.
The prosecutor's conduct should always be judged within the context of the whole case, and more particularly, the whole argument.
We now turn to the consequences of overstepping by the prosecutor. The trial of the case is under the control of the trial judge, who must monitor the proceedings as they develop, and control the...
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