State v. Hudson

• Decision Date: 29 January 1993
• Docket Number: C-920094,Nos. C-920092,s. C-920092
• Citation: 86 Ohio App.3d 113,619 N.E.2d 1190
• Parties: The STATE of Ohio, Appellee, v. HUDSON, Appellant.
• Court: Ohio Court of Appeals

Page 113

86 Ohio App.3d 113

619 N.E.2d 1190

The STATE of Ohio, Appellee, v. HUDSON, Appellant.

Nos. C-920092, C-920094.

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

Decided Jan. 29, 1993.

Joseph T. Deters, Hamilton County Pros. Atty., and Stephen J. Wenke, Asst. Pros. Atty., Cincinnati, for appellee.

John K. Issenmann, Cincinnati, for appellant.

PER CURIAM.

On September 3, 1991, defendant-appellant, Alvie Lamont Hudson, was indicted on one count of felonious assault and one count of kidnapping, each count carrying a firearm specification. Appellant entered a plea of not guilty. On January 23, 1992, following a jury trial, appellant was found guilty of both counts but found not guilty on both firearm specifications. He was sentenced as appears of record.

In this appeal, appellant asserts two assignments of error. For the reasons that follow, we find the first assignment to be well taken and overrule the second assignment of error.

According to evidence presented by the prosecution at trial, appellant's guilt stemmed from events that occurred sometime after midnight, in the early morning hours of July 16, 1991, when appellant's co-defendant, Maurice Collins, picked up two men, ShaRaunn Hinton and Andre Phillips, allegedly to take them to the home of "Little Dave" Mitchum. Instead, Collins drove the pair to appellant's girlfriend's house, where appellant joined the group.

Collins drove to an alley in Mt. Auburn and parked. Appellant left the group but returned in a few minutes with a gun. Phillips and Hinton were ordered out of the car and their hands were tied with duct tape. Both men broke free of the tape and tried to plead with Collins and appellant that they had nothing to do with a burglary that occurred at Collins's house on July 15, 1991. Hinton testified that appellant struck him in the face with the gun, then picked up a brick and hit him in the head with it. When Hinton was finally able to run away from his assailants, he got into a cab, which he ordered to take him to a police station.

In his first assignment of error, appellant argues that the trial court erred in failing to declare a mistrial as a result of the prosecuting attorney's misconduct. The prosecutor's alleged misconduct occurred during closing arguments as he addressed the jury and stated:

"All right. We're putting a lot of unfair things on you. You've been told by the Court, and you're going to be told more, you can't speculate. You keep hearing David Mitchum. You hear all these things. They come at you and you start wondering. You can't help it, but look and say, hey, there's more here. There's more here than a simple fist fight between two young men.

"He was right; there are no choir boys involved here whatsoever. I'm not going to stand up here and tell you ShaRaunn is a pillar of the community. I told you in the very beginning what was involved here was basically drug-related.

"Now, upper courts in all their wisdom and ivory towers say I can't appeal to you and tell you that the violence among young people like this is a problem of today. I can't tell you that because I can't appeal to you on that and I won't do it.

"MR. SCHUH: Your Honor, I object.

"MR. CROWE: But facts are facts.

"THE COURT: Well yeah, you can't do it.

"MR. CROWE: I won't do it, Judge.

"THE COURT: But you did. However, we don't live in a vacuum, ladies and gentlemen, and I'm sure Mr. Crowe is not telling you anything you don't know.

"Let's try to stay with the facts on this case."

Besides the objection raised while the prosecutor was making his argument, counsel for the defense moved for a mistrial in a sidebar conference following the trial court's instructions to the jury and before the jury retired to deliberate. The trial court denied the mistrial, explaining that the statements made by the prosecutor were "really within the common knowledge of any citizen * * *."

Under Ohio law, to determine whether prosecutorial misconduct may serve as the basis for reversing a defendant's conviction, a two-part test must be employed: (1) the first part of the inquiry concerns whether the prosecutor's comments were improper; and (2) the second entails an examination, on a case-by-case basis, of whether any improprieties prejudicially affected substantial rights of the accused. State v. Lott (1990), 51 Ohio St.3d 160, 555 N.E.2d 293; State v. Smith (1984), 14 Ohio St.3d 13, 14 OBR 317, 470 N.E.2d 883; see, also, State v. Spencer (May 15, 1991), Hamilton App. No. C-900008, unreported, 1991 WL 81661. It is often said that considerable latitude should be permitted in closing argument, State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768; State v. Liberatore (1982), 69 Ohio St.2d 583, 23 O.O.3d 489, 433 N.E.2d 561, but it remains clear that the law does not countenance, within that latitude, insinuations and assertions calculated to mislead, or allusions to matters not supported by admissible evidence. State v. Lott, supra, 51 Ohio St.3d at 166, 555 N.E.2d at 300. Similarly forbidden are calls for a jury to convict not on the facts and the law, but in response to public demand. State v. Hicks (1989), 43 Ohio St.3d 72, 538 N.E.2d 1030.

In the case sub judice, we are convinced that the prosecutor's closing argument was indelibly stained by remarks that were improper and calculated to mislead in several respects: (1) instead of maintaining the proper focus on whether admissible evidence in the record demonstrated beyond a reasonable doubt all the elements of the charged offenses, the argument encouraged the jury to convict Hudson improperly either (a) on the basis of his bad character ("there are no choir boys involved here") and associations with drug dealers ("what was involved here was basically drug-related"), or (b) to serve public demand by ridding the community of one manifestation of the problem posed by drug trafficking ("violence among young people like this is a problem of today"); and (2) the argument further encouraged the jury to ignore the law by insinuating that the law unfairly hindered the search for truth in the fact-finding process ("We're putting a lot of unfair things on you"), that the law was contrived, unrealistic and sterilely academic ("upper courts in all their wisdom and ivory towers say I can't appeal to you * * * [b]ut facts are facts"), and that, therefore, practical considerations such as bad...