State v. Smith, No. 84-80

• Court: United States State Supreme Court of Ohio
• Writing for the Court: PER CURIAM; FRANK D. CELEBREZZE; HOLMES
• Citation: 14 Ohio St.3d 13,470 N.E.2d 883
• Parties: , 14 O.B.R. 317 The STATE of Ohio, Appellant, v. SMITH, Appellee.
• Docket Number: No. 84-80
• Decision Date: 07 November 1984

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14 Ohio St.3d 13 470 N.E.2d 883, 14 O.B.R. 317 The STATE of Ohio, Appellant,
v.
SMITH, Appellee. No. 84-80. Supreme Court of Ohio. Nov. 7, 1984.

John T. Corrigan, Prosecuting Atty., George J. Sadd and Robert V. Housel, Asst. Pros. Attys., for appellant.

Levin & Levin Co., L.P.A., Dennis P. Levin and Jack M. Levin, Beachwood, for appellee.

PER CURIAM.

The sole issue presented in this case is whether the prosecution's remarks in rebuttal closing argument constituted prejudicial conduct sufficient to require reversal of Smith's conviction. This court concludes that the statements by the prosecution went beyond the record, were not substantiated by the evidence and characterized the defense in derogatory terms clearly designed to sway the jury. This misconduct[470 N.E.2d 885] substantially prejudiced Smith's rights and warrants reversal.

The prosecution is normally entitled to a certain degree of latitude in its concluding remarks. State v. Woodards (1966), 6 Ohio St.2d 14, 26, 215 N.E.2d 568 [35 O.O.2d 8], certiorari denied (1966), 385 U.S. 930, 87 S.Ct. 289, 17 L.Ed.2d 212; State v. Liberatore

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(1982), 69 Ohio St.2d 583, 589, 433 N.E.2d 561 [23 O.O.3d 489]. A prosecutor is at liberty to prosecute with earnestness and vigor, striking hard blows, but may not strike foul ones. Berger v. United States (1935), 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314. The prosecutor is a servant of the law whose interest in a prosecution is not merely to emerge victorious but to see that justice shall be done. It is a prosecutor's duty in closing arguments to avoid efforts to obtain a conviction by going beyond the evidence which is before the jury. United States v. Dorr (C.A. 5, 1981), 636 F.2d 117.

The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. United States v. Dorr, supra, at 120. To begin with, the prosecution must avoid insinuations and assertions which are calculated to mislead the jury. Berger v. United States, supra, 295 U.S. at 88, 55 S.Ct. at 633. It is improper for an attorney to express his personal belief or opinion as to the credibility of a witness or as to the guilt of the accused. State v. Thayer (1931), 124 Ohio St. 1, 176 N.E. 656; DR 7-106(C)(4) of the Code of Professional Responsibility. Moreover, the code provides that an attorney is not to allude to matters which will not be supported by admissible evidence, DR 7-106(C)(1), and " * * * [a]...