State v. Gardner
| Citation | 713 N.E.2d 473,127 Ohio App.3d 538 |
| Decision Date | 11 May 1998 |
| Docket Number | No. 1997CA00388,1997CA00388 |
| Parties | The STATE of Ohio, Appellee, v. GARDNER, Appellant. |
| Court | United States Court of Appeals (Ohio) |
Douglas J. Maragas, Canton Assistant Prosecutor, North Canton, for appellee.
Barry T. Wakser, North Canton, for appellant.
Appellant Steven Gardner and Shointa Smith have been involved in a romantic relationship and have two children.
On June 24, 1997, Zeibbed "Zeb" Freeman picked up Shointa at her mother's residence. Shortly after she entered Zeb's vehicle, appellant approached the vehicle and tried to pull her out of the car by her hair. Shointa screamed for Zeb to pull away.
As Zeb Freeman drove away with Shointa, appellant followed in his vehicle. Appellant attempted to force the car off the road. Zeb Freeman turned and began traveling back toward Shointa's residence. Zeb attempted to enter State Route 30, but appellant blocked the entrance with his vehicle. Another vehicle struck Zeb's car from the side.
As the driver of the second vehicle appeared to be injured, Zeb began to walk to a nearby fire station for help. He turned and saw appellant inside his car, punching Shointa in the face. Her face was bruised, and her eye was red and swollen.
Appellant was charged with domestic violence in the Canton Municipal Court. The case proceeded to jury trial. Shointa Smith testified on behalf of appellant that he never struck her. Appellant was convicted as charged and sentenced to one hundred eighty days' incarceration, with ninety days suspended, and fined $100. He assigns a single error on appeal:
"The trial court erred in denying appellant's motions for a mistrial based upon prosecutorial misconduct."
Before the jury trial began, the court granted appellant's motion in limine, to exclude any evidence of past acts of domestic violence against Shointa Smith. Appellant argues that the prosecutor committed misconduct by persistently referring to past instances of conduct, despite the ruling on the motion in limine, and the court's admonishment to stay away from that line of questioning.
The prosecutor is not only entitled but encouraged to advocate strongly for conviction. State v. Draughn (1992), 76 Ohio App.3d 664, 671, 602 N.E.2d 790, 793-794. But while he may strike hard blows, the prosecutor is not at liberty to strike foul ones. Id., citing Berger v. United States (1935), 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314.
The prosecutor's conduct must always be judged within the context of the entire case. Draughn, 76 Ohio App.3d at 671, 602 N.E.2d at 793-794. The trial of the case is under the control of the trial judge, who must monitor the proceedings as they develop and control the conduct of both counsel. Id.
When misconduct occurs, the trial judge should admonish the prosecutor, and if the conduct is severe enough, admonish him within the presence of the jury. He should instruct the jury to disregard the prosecutor's statements only if requested by defense counsel. Id. If appellant moves for a mistrial, the court should overrule the motion only if satisfied that the conduct will not result in a miscarriage of justice, considering the curative steps taken by the court. Id.
When reviewed by the appellate court, we should examine the climate and conduct of the entire trial, and reverse the trial court's decision as to whether to grant a mistrial only for a gross abuse of discretion. Id., citing State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, certiorari denied (1985), 472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 728.
Courts have been quick to label prosecutorial behavior misconduct but justify affirming the conviction on the basis that the evidence of guilt is overwhelming. Draughn, 76 Ohio App.3d at 672, 602 N.E.2d at 794. The incongruity of this rationale is that the better the state's case, the more leeway is given to the prosecutor to overstep. Id. As it is in the close case where the conduct is scrutinized more closely, a prosecutor jeopardizes his or her case by misconduct in direct proportion to its prosecutive merit. Id. This court has previously asserted that the consequences of misconduct should be resolved essentially without regard to the merit of the evidence, as the quality and quantity of the evidence are almost always subject to an independent assignment of error and judicial review. Id.
In the instant case, the transcript is fraught with instances where the prosecutor badgered witnesses, argued with the court in front of the jury, and repeatedly referred to past instances of appellant's misconduct, in direct contravention of the ruling of the court.
The following instances of misconduct occurred during the questioning of Zeb Freeman, a witness for the state:
The following instances of misconduct occurred during the testimony of Jason Page, a defense witness:
The following instances of misconduct occurred during the examination of Shointa Smith:
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