State v. Zimmerman

• Decision Date: 26 June 1985
• Docket Number: No. 84-1059,84-1059
• Citation: 18 OBR 79,18 Ohio St.3d 43,479 N.E.2d 862
• Parties: , 18 O.B.R. 79 The STATE of Ohio, Appellee, v. ZIMMERMAN, Appellant.
• Court: Ohio Supreme Court

Page 43

18 Ohio St.3d 43

479 N.E.2d 862, 18 O.B.R. 79

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

No. 84-1059.

Supreme Court of Ohio.

June 26, 1985.

Syllabus by the Court

In determining whether a prosecutor's reference to the accused's failure to testify requires reversal, courts must apply the harmless-error doctrine. (United States v. Hasting [1983], 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96, applied.)

Appellant was convicted of operating a motor vehicle while under the influence of alcohol after a jury trial in Fairborn Municipal Court. During closing argument the prosecutor called the jury's attention to the fact appellant had not testified:

"Let me make some other comments. Obviously, it is not the number of witnesses a side has as to whether or not they win a lawsuit. If that was the case, I think we'd have a winner. I think we had three. I think the Defendant had two.

"The Defendant chose not to testify on his own behalf.

" * * *

" * * * [I]f you liken this case to a baseball game, when you boil it down, the game was all about whether or not Mr. Zimmerman was operating under the influence. When you consider the evidence that has been presented, the box score in this ball game, Ladies and Gentlemen, happened to be three to zip.

"There were three witnesses in this trial that testified as to whether or not he was guilty of operating a motor vehicle under the influence. One witness saw what happened from the outside, observing his vehicle. That guy wore a uniform and a badge. Two others happened to be in the vehicle a short time before and saw it from the inside looking out.

"Two other witnesses testified as to whether or not he was under the influence while dancing or under the influence while buying beer.

"Ladies and Gentlemen, if this trial was a ball game, the score was three to nothing. It was a shutout in favor of the State of Ohio.

"Now, I ask you to consider when you deliberate this case * * *.

"You know, you have been very patient with each of us. You have been patient with the Court, but I want you to consider the State is not relying upon this piece of paper that happens to be a test result to substantiate this case. Do you know what this piece of paper does? It corroborates the other parts of the State's case. It solidifies this idea that these physical symptoms were what they were stated to be. It solidifies Mr. Zimmerman was guilty of erratic driving. By the way, when you boil all the evidence down concerning whether or not he ran off the road or whether he was guilty of erratic driving, you know what it boils down to? There was one to nothing on that. There was one witness in the world that came into this courtroom and told you folks yesterday that he did what the State claims he did, and it happened to be that officer. There is absolutely no other witnesses that testified as to whether or not he was guilty of erratic driving at the time he was stopped; not any others."

Appellant was convicted and sentenced. The Court of Appeals for Greene County affirmed.

This cause is now before the court pursuant to the allowance of a motion for leave to appeal.

Joe R. Fodal, Fairborn, for appellee.

Dan D. Weiner, Dayton, for appellant.

DOUGLAS, Justice.

The issue presented in this case is whether the prosecutor's comments on the accused's silence require the automatic reversal of the conviction.

It was improper for the prosecutor to comment on the accused's silence. Griffin v. California (1965), 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106. However, the prosecutor's improper comments do not require automatic reversal of the accused's conviction. The conviction must be affirmed if it is concluded, based on the whole record, that the prosecutor's improper comments were harmless beyond any reasonable doubt. ...