State v. Hart

• Decision Date: 27 April 1994
• Docket Number: No. C-920667,C-920667
• Citation: 94 Ohio App.3d 665,641 N.E.2d 755
• Parties: The STATE of Ohio, Appellee, v. HART, Appellant. *
• Court: Ohio Court of Appeals

Page 665

94 Ohio App.3d 665

641 N.E.2d 755

The STATE of Ohio, Appellee, v. HART, Appellant. ^*

No. C-920667.

Court of Appeals of Ohio, First District, Hamilton County.

Decided April 27, 1994.

Joseph T. Deters, Hamilton County Pros. Atty., and Christian J. Schaefer, Asst. Pros. Atty., for appellee.

Richard L. Bell, Cincinnati, for appellant.

PER CURIAM.

On December 6, 1991, defendant-appellant, Earl H. Hart, Jr., was indicted on one count of aggravated murder with a death-penalty specification for purposely killing Anna T. Steffin while committing or attempting to commit the offense of aggravated burglary. Aggravated burglary was charged in the second count of the indictment. Hart entered a plea of not guilty.

A jury trial began on May 7, 1992. During the trial, the state dismissed the death specification. Fourteen days later, it was entered of record that the jury was hopelessly deadlocked and the jury was discharged.

A second trial began on August 10, 1992. This trial did not involve the death penalty, nor does this appeal. Four days later the jury returned a verdict of guilty on both counts. Hart received a life sentence, with parole eligibility after twenty years, for count one, and an indeterminate term of incarceration with ten years' actual imprisonment on count two. The sentences were to run consecutively.

Hart brought this timely appeal asserting seven assignments of error. For the reasons that follow, the judgment of the trial court is reversed and this case is remanded for a new trial.

On August 28, 1991, alerted by a concerned mail carrier, Cincinnati police officers entered the home of ninety-year-old Anna T. Steffin. They discovered her badly decomposed and fly-infested body in her bed. Steffin was lying on her back, her hands tied to the bedposts, a gag of paper towels in her mouth, and her legs spread apart. Her pajama top was open. Her pants were pulled down to just above her knees. Green bottle flies infested the house. The corpse was covered with pupal casings, fly eggs, and live flies.

The bedroom had been ransacked. Closets and dresser drawers were open. A purse was lying on the floor. Further investigation revealed a torn or cut screen window in the kitchen, the probable point of entry for the perpetrator. A greasy smudge, believed to be an unidentifiable fingerprint, was found near the window. Two readable prints were found on the telephone and on the interior of the kitchen storm door. The fingerprints were later found to be those of Earl Hart.

In addition to the Cincinnati police division, Dr. Robert Pfalzgraf, a deputy coroner of Hamilton County, conducted an investigation. The decomposed state of the body hampered his autopsy, but Pfalzgraf found that Steffin's hyoid bone and thyroid cartilage, both located in her neck, were crushed. She died of mechanical asphyxiation.

The investigation progressed little until November 1991, when Randall Kennebreuw, then incarcerated in the Hamilton County Justice Center, told police that he had seen the perpetrator of the homicide, Earl Hart, in the Justice Center. Kennebreuw related that on August 12, 1991, in exchange for gas money, Hart drove him to an acquaintance's home, located across the street from Anna Steffin's home. Both were seeking odd jobs. Kennebreuw claimed that Hart inquired as to who lived across the street. Kennebreuw told him, but did not wish to go to the Steffin house as he owed Anna Steffin an unpaid debt of several dollars. The two parted ways. Kennebreuw testified that he remained in the area and saw Hart hunched down on the side of the Steffin house. Hart then motioned for Kennebreuw to join him near the kitchen door. Fearful, Kennebreuw left the area.

After initial denials of any involvement, Hart recalled a quite different series of events. He claimed that Kennebreuw entered the Steffin home seeking money. Hart followed him inside. While Kennebreuw and Steffin talked, Hart used the telephone to call his girlfriend. Both men, Hart claimed, left the house together. Hart denied killing Steffin.

Hart now argues, in his sixth assignment of error, that the prosecuting attorneys by their misconduct during trial and closing arguments violated his constitutional rights by depriving him of a fair trial. The state denies misconduct, alleges that any misconduct was an isolated incident in an otherwise properly prosecuted case, argues waiver through lack of defense objections, and maintains that Hart was not prejudiced. Hart correctly argues that the prosecutors erred during closing arguments, and we hold that those errors resulted in a conviction based upon a denial of due process.

Hart complains of seven instances of misconduct: two occurring during the trial, in the cross-examination of a defense witness, and in the cross-examination of Hart himself; and five occurring during the initial and rebuttal closing arguments conducted by the two assistant prosecuting attorneys.

The most serious instance of misconduct arose during the initial closing argument conducted by the initial assistant prosecuting attorney. The prosecutor, employing a chalkboard and previously admitted photographs of the victim's badly decomposed and fly-infested corpse, explained to the jury how the state had proven the essential elements of aggravated murder. He continued:

"Purposely caused the death of Anna T. Steffin. What do we have to show that? What do we have? Think about that. What do we have to show that? We've got her throat crushed. We have the bones in her throat fractured, maimed by his hands around her throat speeding the very life out of her, the very life out of her. As she in her last moments of agony, look at those hands in agony dying, in death clutching those ropes. Can you imagine what this woman went through. Look at that. This woman.

" * * *

"DEFENSE COUNSEL: Your Honor, I would object to asking the jury to imagine what the lady went through. It's not appropriate to have a jury place themselves either into the shoes of the victim or the accused.

"THE COURT: I'll overrule the objection. Go ahead. * * *

"PROSECUTOR: Thank you, Your Honor. I'll submit to you that that even goes beyond the mere pain of having the life crushed out of it.

" * * *

"I submit to you you grab someone around the--it takes awhile to strangle someone. It's not something you can accidentally do. You grab someone and the point that you break the bones in their neck. That shows purpose.

" * * *

"You know, you take someone you hog-tie them like this where they can't get help or anything, particularly older person, you gag them so they can't call for help, and then you abandon them there, how horrible would it be to think that that lady la[y] there for 16 days and starved to death. Died of lack of water, lack of oxygen, lack of food. What a horrible death that would be. What a purpose to cause death that would be.

" * * *

"All right. Those are those facts."

The test for whether prosecutorial misconduct may serve as the basis for reversing a conviction is, first, whether the prosecutor's remarks were improper and, if so, whether they prejudicially affected substantial rights of the accused. State v. Lott (1990), 51 Ohio St.3d 160, 555 N.E.2d 293, certiorari denied (1990), 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 596; State v. Smith (1984), 14 Ohio St.3d 13, 14-15, 14 OBR 317, 318-320, 470 N.E.2d 883, 885-886; State v. Hudson (1993), 86 Ohio App.3d 113, 619 N.E.2d 1190.

In our adversarial system, prosecutors are not only permitted but also encouraged to argue fervently for conviction. In displaying that fervor, "the prosecution * * * [has] wide latitude in summation as to what the evidence has shown and what reasonable inferences may be drawn therefrom." State v. Stephens (1970), 24 Ohio St.2d 76, 82, 53 O.O.2d 182, 185, 263 N.E.2d 773, 777. The prosecutor may comment upon the testimony and suggest the conclusions to be drawn from it. 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; State v. Liberatore (1982), 69 Ohio St.2d 583, 23 O.O.3d 489, 433 N.E.2d 561.

The latitude afforded the prosecutor does not, however, encompass inviting the jury to reach its decision on matters outside the evidence adduced at trial. For 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; State v. Lott, 51 Ohio St.3d at 166, 555 N.E.2d at 300. Prosecutors may not allude to matters not supported by admissible evidence. State v. Lott; State v. Smith, 14 Ohio St.3d at 14, 14 OBR at 318, 470 N.E.2d at 885; State v. Liberatore.

Moreover, the standards of conduct for advocates appearing before a tribunal prohibits attorneys from engaging in conduct that taints the fairness of a trial. State v. DePew (1988), 38 Ohio St.3d 275, 528 N.E.2d 542, certiorari denied (1989), 489 U.S. 1042, 109 S.Ct. 1099, 103 L.Ed.2d 241; see, also, State v. Lorraine (1993), 66 Ohio St.3d 414, 430, 613 N.E.2d 212, 224 (Wright, J., concurring), certiorari denied (1994), 510 U.S. 1054, 114 S.Ct. 715, 126 L.Ed.2d 679; State v. LaFreniere (1993), 85 Ohio App.3d 840, 621 N.E.2d 812, motion to certify record overruled (1993), 67 Ohio St.3d 1434, 617 N.E.2d 685.

The Code of Professional Responsibility delineates the following standards. DR 7-102(A)(5) states that a lawyer shall not "[k]nowingly make a false statement of law or fact." DR 7-106(C)(1) provides that an attorney shall not "[s]tate or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence."

In this case, the prosecutor's entreaty to the jury to consider "how horrible would it be to think that that lady la[y] there for 16 days and starved to death" was improper. The prosecutor invited the jury to convict Hart based not upon facts in evidence, but upon...