State v. Keenan
Decision Date | 16 June 1993 |
Docket Number | No. 91-438,91-438 |
Citation | 66 Ohio St.3d 402,613 N.E.2d 203 |
Parties | The STATE of Ohio, Appellee, v. KEENAN, Appellant. |
Court | Ohio Supreme Court |
Stephanie Tubbs Jones, Cuyahoga County Pros. Atty., and Carmen M. Marino, Asst. Pros. Atty., for appellee.
James Kura, Public Defender, Kevin L. Fahey and Jane P. Perry, Asst. Public Defenders, for appellant.
In his second proposition of law, Keenan complains of misconduct by the Assistant Prosecuting Attorney during the guilt-phase closing argument. This proposition has merit. "The conduct of a prosecuting attorney during trial cannot be made a ground of error unless the conduct deprives defendant of a fair trial." State v. Apanovitch (1987), 33 Ohio St.3d 19, 24, 514 N.E.2d 394, 400. Thus, although we have "express[ed] our mounting alarm over the increasing incidence of misconduct * * * in capital cases," we have not treated prosecutorial misconduct as reversible error "except in rare instances." State v. DePew (1988), 38 Ohio St.3d 275, 288, 528 N.E.2d 542, 556. This case presents an aggravated example of such misconduct. Here, we find that the prosecutor's pattern of misconduct throughout much of the trial and during closing argument did deprive the defendant of a fair trial.
The prosecutor argued to the jury during the guilt phase that defense counsel's conduct of the case showed that they were A defense objection was overruled. 1 In our view, this comment imputed insincerity to defense counsel, thus suggesting that they believed Keenan guilty. It was therefore improper. Balske, Prosecutorial Misconduct During Closing Argument (1986), 37 Mercer L.Rev. 1033, 1055-1056; Gershman, Prosecutorial Misconduct (1985) 10-29, Section 10.4(b). Such comment is forbidden because it is both irrelevant and prejudicial. The prosecutor's rebuttal argument insinuated even more strongly that defense counsel thought Keenan guilty: The personal opinion of defense counsel of their client's guilt or innocence is no more relevant than the opinion of the prosecutor. Yet, if the jury believes that even the defendant's own advocates think him guilty, that belief will naturally carry great weight in their deliberations. The jury is also likely to resent defense counsel's perceived insincerity.
Moreover, the jury is likely to believe a prosecutor's suggestion that defense counsel are mere "hired guns." The prosecutor carries into court the prestige of Berger v. United States (1935), 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321.
The prosecutor compounded his error by disparaging defense counsel, in the jury's presence, for objecting. The prosecutor said:
It is improper to denigrate defense counsel in the jury's presence for making objections. Such conduct infringes on the defendant's right to counsel and penalizes him for attempting to enforce procedural rights. Cf. State v. Wiles (1991), 59 Ohio St.3d 71, 88, 571 N.E.2d 97, 118; see, generally, Gershman, supra, at Sections 10.4 and 10.4(a). In light of Ohio's contemporaneous-objection requirement, such conduct is especially reprehensible.
Yet the prosecutor repeatedly chose to attack the defense for objecting. At one point, this exchange occurred before the jury:
Later, * * * "the prosecutor derided defense counsel for having objected during Nancy Somers's testimony:
The prosecutor consistently substituted emotion for reasoned advocacy in his closing arguments. He expressly encouraged the jury to react emotionally to the evidence, specifically the gruesome photographs of Klann's corpse. "When you see what has been done to him, then you will know the outrage that we feel over it, that it is justifiable." Though the prosecutor added, "That is not meant to sway your sympathy or feelings," the issue here is the effect his conduct actually had on the jury, not the effect it was meant to have. See Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78, 87 ( ).
The prosecutor soon adverted again to the photographs:
Again the prosecutor referred to the photographs: "You will understand more fully that this is a capital case when you look at that photograph and the other photographs of Mr. Klann and you look at the knife." Finally, the prosecutor said:
Although gruesome photographs may be admissible in a capital case, the state may not use them "to appeal to the jurors' emotions and to prejudice them against the defendant." State v. Thompson (1987), 33 Ohio St.3d 1, 15, 514 N.E.2d 407, 420. Such photographs "are charged with such immediacy and emotional impact," State v. Benner (1988), 40 Ohio St.3d 301, 311, 533 N.E.2d 701, 712, fn. 2, that they inherently present some danger of inflaming the jury in any case; that is why we have insisted, as a prerequisite to admissibility, that each gruesome photograph have a probative value that outweighs its prejudicial effect. See State v. Morales (1987), 32 Ohio St.3d 252, 257-258, 513 N.E.2d 267, 273-274; cf. Evid.R. 403.
Assuming the photographs were admissible, the prosecutor focused not on what the photographs proved, but on the "feelings" and "emotions" they evoked. Worse, he encouraged the jurors to regard those feelings as relevant--indeed, central--to their task. In the prosecutor's argument, the role of the photographs was not evidentiary; it was visceral.
The prosecutor's reliance on emotion did not stop there. At one point, the prosecutor actually stabbed a large knife into a counsel table in the presence of the jury. He urged the jury to
After describing Keenan's alleged acts, the prosecutor asked: "That's a human being?" Answering his own question, he called Keenan an "animal." Such invective is not unfair per se, see Darden v. Wainwright (1986), 477 U.S. 168, 180-183, 106 S.Ct. 2464, 2471-2472, 91 L.Ed.2d 144, 156-158; Wiles, supra, 59 Ohio St.3d at 87, 571 N.E.2d at 117, but here the epithet added to the emotional smoke screen surrounding the prosecutor's entire argument.
The prosecutor spoke of his personal outrage. He told the jury: Finally, he said: "I'm all talked out for now, but you better believe what I told you was heartfelt, was true to these facts, was exactly how me and my friend, [Detective] Allen * * * feel about this case." A prosecutor may not express his personal opinion about the guilt of the accused, unless he bases that opinion on the evidence presented in court. Here, the prosecutor made only glancing reference to the "facts" of the case; this comment was really about the state of his own emotions and the fervor with which he believed in Keenan's guilt.
To be sure, any capital trial generates strong emotions. Furthermore, we agree with Judge Learned Hand's observation that "the truth is not likely to emerge, if the prosecution is confined to such detached exposition as would be appropriate in a lecture, while the defense is allowed those appeals in misericordiam [sic ] which long custom has come to sanction." United States v. Wexler (C.A.2, 1935), 79 F.2d 526, 530. And so we have consistently held the prosecution entitled to "some latitude and freedom of expression" in summation. State v. Woodards (1966), 6 Ohio St.2d 14, 26, 35 O.O.2d 8, 14, 215 N.E.2d 568, 578. Realism compels us to recognize that criminal trials cannot be squeezed dry of all feeling.
But it does not follow that prosecutors may deliberately saturate trials with emotion. We have previously announced that "a conviction based solely on the inflammation of fears and...
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§ 3.05 Order of Trial Proceedings
...v. Chandler, 483 N.E.2d 192, 195 (Ohio App. 1984).[116] State v. Liberatore, 433 N.E.2d 561, 566-67 (Ohio 1982).[117] State v. Keenan, 613 N.E.2d 203, 208 (Ohio 1993) ("Such invective is not unfair per se. . . .") (citing Darden v. Wainwright, 477 U.S. 168, 180-81 (1986)).[118] State v. Ric......
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§ 3.05 ORDER OF TRIAL PROCEEDINGS
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