State v. Watson
| Decision Date | 23 October 1969 |
| Citation | 252 N.E.2d 305,49 O.O.2d 152,20 Ohio App.2d 115 |
| Parties | , 49 O.O.2d 152 The STATE of Ohio, Appellee, v. WATSON, Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. In a first degree murder trial, the admission of evidence of previous crimes, presented for the purpose of showing possession of the murder weapon, is reversible error when other substantial evidence of the possession of the weapon has been adduced, the possession has not been disputed by the defense, and the admission of the evidence of other crimes does not qualify under any of the conditions of Section 2945.59, Revised Code (similar acts).
2. A prosecution argument outside the record which influences the jury adversely to a defendant is a denial of a fair trial. However, where a reference to matters excluded from the record is short, oblique, and justified as a reply to a defense argument and elicits no contemporaneous objection, there is no error prejudicial to the rights of the defendant.
3. To warrant reversal based on improper argument, there must be an immediate objection and a request that the jury be instructed to disregard the remarks claimed to be prejudicial, unless the offending material is so flagrantly improper as to prevent a fair trial.
4. When prospective jurors in a capital case are disqualified for cause simply because of their nonbelief in or opinion against capital punishment, and not because such nonbelief or opinion would unambiguously preclude them from instituting the death sentence in the proper case, the resulting jury is unconstitutional.
5. Depending upon the closeness of the controversy, it may be reversible error for a prosecutor during argument to a jury either to give his personal opinion as to the proper disposition of the issue of mercy in a first degree murder case or to appeal to the jury to take account of extraneous factors such as community sentiment. However, lack of an objection and request that the jury be instructed to disregard the offending argument forecloses the possible error as a basis for appeal.
6. It is not error for a trial court in a criminal prosecution to refuse to suppress the defendant's in-custody statement to a newspaperman, where no inducing connection is demonstrated between that statement and an earlier in-custody statement to law enforcement officers claimed to be a source of contamination.
John T. Corrigan, Pros. Atty., Henry Szemer, Parma, and Harvey Monck, Cleveland, for appellee.
Edward R. Brown and Elmer A. Giuliani, for appellant.
The defendant was convicted on two counts of murder, one: murder in the first degree, Section 2901.01, Revised Code; and, taking life of police officer, Section 2901.04, Revised Code. Each conviction carried a mandatory death sentence absent a recommendation of mercy. There was no recommendation.
The defendant appealed, noting five assignments of error:
'I. The trial court erred in admitting evidence, over defense objection, of two other assaults and robberies, both of which were purportedly committed by the defendant within three weeks of the slaying of Patrolman Huber, for the purpose as specified by the prosecution of establishing the murder weapon in the possession of the defendant at the time of the slaying when this element of proof had already been established by the prosecution without such evidence of other crimes and when this element was never disputed by the defense.
'II. The trial court erred in refusing to grant defendant's motion for mistrial or in failing to take other corrective action to eradicate the prejudice caused to the defendant by the prosecution's comment in closing argument respecting matters which had previously been properly excluded by the court.
'III. The trial court erred in sustaining the prosecution's challenge for cause, over defense objection, to eight prospective jurors and one prospective alternate because of either their general opposition to capital punishment or their expressed doubt and hesitation about their ability to return a verdict carrying the death penalty in this case without further inquiry whether this general opposition or doubt was tantamount to an automatic rejection of the death verdict in any case.
'IV. The trial court erred in refusing to grant defendant's motion for mistrial or in failing to take other corrective action to eradicate the prejudice caused to the defendant by the prosecutor's demand for the death penalty in closing argument coupled with their representation that they had never before overtly made such a demand in over forty years of trying cases and in over 800 other murder cases.
All assignments of error have been carefully considered in conjunction with the record in this case.
The first assignment of error raises the propriety of introducing evidence of other, unrelated crimes attributed to this defendant in order to prove his possession of the weapon used to perpetrate the crime for which he was on trial. The defense made a seasonable objection to the use of the testimony of victim Peter Ashcroft 1 on the ground that it was inappropriate under the 'like and similar act' doctrine (see Section 2945.59, Revised Code) and 'highly prejudicial toward the rights of the defendant.' The record reflects a response by the state, which narrowed its purpose in submitting the evidence to avowed objectives having nothing to do with the 'similar act' concept:
'Mr. Szemer: Your Honor, at this stage of the proceedings, at issue is the possession of the gun, which has been marked for identification 2 as an exhibit.
'The prosecutor feels that it is relevant. All evidence is relevant to the ownership and possession of this gun, and their witness will testify he had the gun until April, but from April to May 11th he did not have possession. It was his gun and he was not in the vicinity of 89th and Superior. 3
'We feel it is relevant in this case now to show possession of the gun.
'The Cort: Do I understand is the prosecutor telling the court the purpose of this witness testifying is he will identify this weapon that is an exhibit in this case as previously being his weapon? (Emphasis added.)
'Mr. Szemer: That is correct, your Honor.
'The Court: Does the prosecution intend to tie this weapon in with the defendant?
'Mr. Szemer: Yes, your Honor.
'The Court: Then the objection is overruled.' 4
Whatever justification the previous-acts evidence may have had in relation to possession of the gun, it was obliterated by earlier testimony by the state's own witnesses, Police Officers Donald Bagnell and Paul McHugh. The gun in question, state's Exhibit 16, had been admitted during Bagnell's testimony prior to witness Ashcroft's testimony (R 1138).
Bagnell told of his acquisition of state's Exhibit 16, the .38 caliber Smith & Wesson:
'Q. Now, what did he do from that moment on, as he came out? Take it easy. A. He put his hands on top of the automobile.
'Q. Yes, when he did that what did you do? A. I came around the front of the automobile.
'Q. You came around the front of the automobile. And then what did you do with Watson? A. At that time I noticed a revolver laying in the gutter, so I grabbed him and pushed him up against the tree, away from it.
'Q. Now, where was the gun that you saw in the gutter? How far was the gun from Watson? A. At his feet.
'* * *
'Q. And who picked up the gun? A. I did.
'* * *
'Q. Officer, I will hand you what has been marked for identification state's Exhibit 16, and will you examine that, sir. Have you seen that gun before? A. I have.
'Q. Where was it the first time you saw it? A. This was laying in the gutter at the defendant's feet.
(R 1137-1138)
The exhibit was then offered and received in evidence (R 1138). The record shows that these events took place within minutes of the firing of the shots that gave rise to charges being placed against defendant, Watson. 5
Officer Bagnell's testimony was corroborated by that of Officer McHugh who was with him. Defendant's possession was supported further by his admissions to a newspaper reporter who testified (R 1442) and by companions who said on the stand that they saw the gun (state's Exhibit 16) in the defendant's hands at various times before the shooting (R 1284-1287; 1312; 1384-1385).
With the evidence in this stance, anything probative stemming from possession on April 20, 1967, and May 9, 1967, was merely accumulative. Moreover, under such circumstances the probative effects of the previous possession are overbalanced by the prejudicial effects of the evidence of past acts. This is especially clear because the evidence involving the past acts was totally unnecessary to make the proof of possession the state needed.
It follows that the admission of such testimony was prejudicial unless encompassed and justified, despite the state's disclaimer, by the exceptions provided by Section 2945.59, Revised Code, the so-called 'similar acts' statute. That statute authorizes proof of any of a defendant's acts which tends to show:
(1) his motive or intent,
(2) the absence of mistake or accident on his part, or
(3) his scheme, plan or system in doing an act.
Where those three elements, or any of them, are material, the acts may be shown whether occurring before, after, or contemporaneously with the incident giving rise to the case on trial and whether or not such proof 'may show or tend to show' the commission of another crime. However, the statute does...
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... ... Stephens, supra, at 83, 53 O.O.2d at 186, 263 N.E.2d at 777. However, where the reference to matters outside the record is short, oblique, and justified as a reply to defense arguments and elicits no contemporaneous objection, there is no prejudicial error. State v. Watson (1969), 20 Ohio App.2d 115, 49 O.O.2d 152, 252 N.E.2d 305, paragraph two of the headnotes, sentence modified (1971), 28 Ohio St.2d 15, 57 O.O.2d 95, 275 N.E.2d 153 ... In this case, the court of appeals held that the prosecutor improperly referred to Lott's rejected pretrial ... ...
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... ... "V. The defendant was denied a fair trial by reason of improper argument on behalf of the prosecuting attorney." ... Improper closing argument requires reversal when the argument viewed in its entirety denies defendant a fair trial. State v. Watson (1969), 20 Ohio App.2d 115, 252 N.E.2d 305 [49 O.O.2d 152], modified on other grounds, 28 Ohio St.2d 15, 275 N.E.2d 153 [57 O.O.2d 95]; State v. Brown (Nov. 12, 1981), Cuyahoga App. No. 43427, unreported. We find that the prosecutor's remarks here did not deny these defendants a fair trial ... ...
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... ... Nevertheless, where a statement not supported by admitted evidence is "short, oblique, and justified as a reply to defense arguments and elicits no contemporaneous objection, there is no prejudicial error." Lott, supra, at 166, 555 N.E.2d at 300, citing State v. Watson (1969), 20 Ohio App.2d 115, 49 O.O.2d 152, 252 N.E.2d 305 ... Because the defense failed to make contemporaneous objections to the prosecutor's statements, each alleged error has been waived. State v. DeNicola (1955), 163 Ohio St. 140, 56 O.O. 185, 126 N.E.2d 62, of the ... ...
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