State v. Keenan, No. 91-438

• Court: United States State Supreme Court of Ohio
• Writing for the Court: MOYER; RESNICK and PFEIFER; PFEIFER; In the heated atmosphere of a capital offense trial, one of the trial judge's most important responsibilities is to make sure that the state and the defense are trying the case on the same field. In this case; RES
• Parties: The STATE of Ohio, Appellee, v. KEENAN, Appellant.
• Decision Date: 16 June 1993
• Docket Number: No. 91-438

Page 402

66 Ohio St.3d 402 613 N.E.2d 203 The STATE of Ohio, Appellee,
v.
KEENAN, Appellant. No. 91-438. Supreme Court of Ohio. Submitted Jan. 13, 1993.
Decided June 16, 1993.

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.

MOYER, Chief Justice.

I

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.

A DEFENSE COUNSEL OPINIONS

The prosecutor argued to the jury during the guilt phase that defense counsel's conduct of the case showed that they were "not looking at this objectively. They are paid to do that. They are paid to get him off the hook." A defense objection was overruled. ¹ In our view, this comment imputed insincerity to defense counsel, [613 N.E.2d 207] thus suggesting that they believed Keenan guilty. It was therefore improper. Balske, Prosecutorial Misconduct During

Page 406

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: "Not once did they tell you their client was innocent. Not once did they tell you to find him not 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 "the representative * * * of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest * * * is not that it shall win a case, but that justice shall be done. * * * Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none." Berger v. United States (1935), 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321.

B

DENIGRATION OF DEFENSE COUNSEL

The prosecutor compounded his error by disparaging defense counsel, in the jury's presence, for objecting. The prosecutor said: "Well, I certainly object. It's argument. We don't want him off the hook."

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:

"MR. SHAUGHNESSY: We'll object, your Honor.

"THE COURT: Overruled.

"MR. MARINO: Yes, we'll object. Did we object to Adam [sic ] Klann being killed? We'll object. * * * "

Page 407

Later, the prosecutor derided defense counsel for having objected during Nancy Somers's testimony: "Objection. Yes. We don't want to hear that because that answer means, yes, he agrees with the murder of an innocent human being."

C APPEAL TO EMOTION

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 issue "is the fairness of the trial, not the culpability of the prosecutor").

The prosecutor soon adverted again to the photographs:

"So that you understand how the law enforcement community and people like me and Mr. Allen feel about this, I want you to look at these photographs. I'm going to show them to you for a few seconds so that [613 N.E.2d 208] when I talk to you in the next 30 or 40 minutes you're going to understand just exactly what this case is about.

"That was once a living human being. * * * If it bothers you, then you are a moral, decent person. If the defense trys [sic ] to tell you that was done to inflame you, you should say any person meeting their death like Anthony Klann did would inflame any decent citizen's feelings, emotions and morals."

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: "When you see those pictures you'll dream about it. They will not leave your memory. When you recount the facts of this case you will be shocked. You will be upset, at least as upset as I am, at least."

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

Page 408

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 "stand there just like * * * Anthony Klann was made to stand there when those two men * * *, who were well over six foot, then remember those two men, and then remember Mr. Espinoza, as this man made him put his * * * head back and sliced open his neck. That's our society. That's our presumption of innocence."

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.

D PERSONAL OPINION

The prosecutor spoke of his personal outrage. He told the jury: "And yes, I'm burned. I'm burned in that same * * * six letter word that Espinoza used. * * * In my time I haven't got emotional too often but it's genuine." 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

Page 409

appropriate in a lecture, while the defense is allowed[613 N.E.2d 209] 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...