State v. Ferguson

• Decision Date: 22 June 1983
• Docket Number: No. 82-441,82-441
• Citation: 5 OBR 380,450 N.E.2d 265,5 Ohio St.3d 160
• Parties: , 5 O.B.R. 380 The STATE of Ohio, Appellant and Cross-Appellee, v. FERGUSON, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 160

5 Ohio St.3d 160

450 N.E.2d 265, 5 O.B.R. 380

The STATE of Ohio, Appellant and Cross-Appellee, v. FERGUSON, Appellee and Cross-Appellant.

No. 82-441.

Supreme Court of Ohio.

June 22, 1983.

Syllabus by the Court

1. A reference by the prosecutor in closing argument to uncontradicted evidence is not a comment on the accused's failure to testify, where the comment is directed to the strength of the state's evidence and not to the silence of the accused, and the jury is instructed not to consider the accused's failure to testify for any purpose.

2. R.C. 2907.02(D) will render inadmissible evidence of the rape victim's sexual activity with one other than the accused where the evidence: does not involve the origin of semen, pregnancy, or disease, or the victim's past sexual activity with the offender; is offered simply to impeach the credibility of the victim; and is not material to a fact at issue in the case.

3. An accused is permitted to cross-examine the prosecuting witness as to the witness' pending or contemplated civil action against the accused, in order to demonstrate any possible bias or prejudice arising out of the witness' financial interest in the outcome of the prosecution.

The events leading to this appeal are as follows:

Raymond E. Ferguson, appellee and cross-appellant herein ("appellee"), was the manager of an apartment complex in Bedford Heights. Susan Zelko the victim and prosecuting witness, approached appellee in the course of her efforts to locate an apartment in the area. Appellee subsequently arranged to lease her an apartment. Evidently a friendship arose between the two and they dated on several occasions prior to the incident which culminated in appellee's arrest and conviction. The victim testified that on these prior occasions, she and appellee had kissed, necked, and petted, but never had sexual intercourse.

On the evening of March 12, 1980, appellee and the victim went together to a restaurant and lounge called the Proud Pony where both had several drinks. After spending several hours at the Proud Pony, the victim invited appellee to her apartment for another drink.

While at her apartment, the victim received a telephone call from a person identified as Ron Buzzato, a friend of the victim's. It appears that Buzzato questioned the victim as to her whereabouts that evening. In the presence of appellee, the victim responded that she had been out with girlfriends and terminated the telephone call shortly thereafter. Appellee allegedly became enraged that the victim had been untruthful in not admitting being with him all evening. An angry confrontation ensued and the victim attempted to evict appellee from her apartment. After appellee refused to leave, the sexual attack which provided the basis for appellee's arrest and conviction occurred. The victim testified:

"He made me perform oral sex a couple times, three times. And he did it to me. And then we had intercourse a couple times. Just kept going back and forth."

Appellee was indicted on six counts of rape under R.C. 2907.02 as a result of the above episode. At trial, the prosecution was based mainly on the testimony of the victim. Appellee exercised his privilege not to testify on his own behalf. A jury convicted appellee of all six counts in the indictment. Appellee was sentenced to serve consecutive terms of seven to twenty-five years on two counts and four to twenty-five years on the remaining four counts.

Appellee gained a new trial in the court of appeals on two grounds. First, the court of appeals ruled that appellee should have been permitted to cross-examine the victim concerning a contemplated civil suit between the victim and appellee's former employer. Second, the court below determined that the prosecutor's reference to "uncontradicted" evidence in closing argument was an impermissible comment on appellee's failure to take the stand. The court below rejected appellee's contentions that the state produced insufficient evidence for a conviction and that R.C. 2907.02(D) was unconstitutional as applied.

The cause is now before the court upon allowance of a motion and cross-motion for leave to appeal.

John T. Corrigan, Pros. Atty. and De Louis Broughton, Cleveland, for appellant and cross-appellee.

Stephen G. Thomas, Cleveland, for appellee and cross-appellant.

FRANK D. CELEBREZZE, Chief Justice.

I

At issue in the first instance is whether the prosecutor's comment in closing argument that the state's evidence is "uncontradicted" is a comment on the accused's failure to take the stand and consequently a violation of the accused's right against self-incrimination.

During closing argument, the prosecutor made several remarks which appellee characterizes as impermissible references to his failure to testify. Specifically, the record reveals the remarks were as follows:

"Force, ladies and gentlemen. This was not a consensual affair. I believe the evidence is quite clear on that. We have nothing to contradict. There is no evidence that's come forth in this trial that I know of, to contradict."

"Mr. DeVan: Objection.

"The Court: Overruled.

" * * *

" * * * We're concerned with the 12th, into the 13th, and there were only two people in that apartment, and there is no evidence to contradict that.

"Mr. DeVan: Objection.

"The Court: Overruled."

In Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 , the Supreme Court ruled as prejudicial direct comments upon the accused's failure to take the stand. In so holding, the court recognized that to allow such comments would penalize an accused for exercising his constitutional right against self-incrimination. Mindful of that principle, this court stated in State v. Lytle (1976), 48 Ohio St.2d 391, at 404, 358 N.E.2d 623 :

"We find no fault with the state's closing argument. The comments by the prosecutor did not focus attention on the silence of the appellant, but rather reminded the jury that the state's case had not been rebutted. Moreover, the trial court instructed the jury that appellant's failure to testify should not be considered for any purpose. * * * " Accord State v. Lockett (1976), 49 Ohio St.2d 48, at 65, 358 N.E.2d 1062 , reversed on other grounds (1978), 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973; State v. Wade (1978), 53 Ohio St.2d 182, at 186, 373 N.E.2d 1244 ; and State v. Moritz (1980), 63 Ohio St.2d 150, at 158, 407 N.E.2d 1268 .

Further, this court in State v. Lane (1976), 49 Ohio St.2d 77, 358 N.E.2d 1081, stated, at 86 :

" * * * Thus, the prosecution is not prevented from commenting upon the failure, on the part of the defense, to offer any other evidence in support of its case. * * * "

Finally, in State v. Cooper (1977), 52 Ohio St.2d 163, 370 N.E.2d 725 , this court held:

"A helpful test in determining whether the above comment improperly indicated that the defendant failed to testify on his own behalf at trial is to determine ' * * * whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.' Knowles v. United States (C.A.10, 1955), 224 F.2d 168, 170." Id. at 173, 370 N.E.2d 725.

The thrust of appellee's contention is that he was the only potential witness in a position to contradict the victim's testimony. As a result, appellee argues that references to uncontradicted evidence necessarily focus attention on the failure of the accused to take the stand. We disagree.

As the cases indicate, a prosecutor is allowed to comment upon the relative strength of the state's case, which includes commenting upon the fact that the state's case has not been rebutted. That is precisely the nature of the prosecutor's comments in the case at bar. Here, the questioned remarks concern evidence that was uncontradicted not only by virtue of the fact that appellee did not testify, but also by any evidence whatsoever. In this context, the prosecutor's comments were permissible matters for closing argument.

Moreover, the jury was instructed not to consider the appellee's failure to testify for any purpose. While this instruction may not purge the error occasioned by a direct comment on an accused's failure to testify, it must generally be presumed that the jury followed the instructions of the trial judge. Thus, a reference by the prosecutor in closing argument to uncontradicted evidence is not a comment on the accused's failure to testify where the comment is directed to the strength of the state's evidence and not to the silence of the accused, and the jury is instructed not to consider the accused's failure to testify for any purpose.

Accordingly, we reverse the portion of the judgment of the court of appeals below which granted appellee a new trial on the basis of the prosecutor's comment on the accused's silence.

II

Appellee's proposition of law number four states: "The Rape Victim Shield Law violates due process when its application prevents cross-examination concerning an alleged rape victim's sexual activity where her hospital records document her involvement in sexual intercourse two days before the alleged rape, but where upon voir dire she had denied [sic ] any sexual activity for ten days before the alleged rape."

Appellee maintains that the trial court should have allowed examination of the victim concerning her prior sexual activity with persons other than the appellee. Appellee allegedly could produce evidence that the victim had sexual intercourse approximately two days prior to her confrontation with appellee, whereas the victim had previously testified on a preliminary matter that she had had sexual intercourse no earlier than ten days prior to having sexual intercourse with appellee. Appellee's position is that the failure of the trial court to allow such cross-examination under the authority of R.C. 2907.02 compromises appellee's constitutional right to confront his...