State v. Gunther , 125 Ohio App. 3d 226 ( 1998 )

I concur with the majority's conclusions regarding appellant's second, third, fourth, and fifth assignments of error. While I also agree with the majority's ultimate determination that appellant's first assignment of error is without merit, I write separately to address what I believe to be a misapplication of the pertinent case law by the majority in reaching its conclusion regarding appellant's first assignment of error.

With respect to the propriety of the prosecutor's comment on the absence of appellant's alibi witness, the majority concludes that there was "no error in the prosecution's argument, as no mention was made of the fact that appellant's wife was named on a witness list." The majority's position on the first assignment of error is at variance with this court's prior statement in Statev. Davie (Dec. 27, 1995), Trumbull App. No. 92-T-4693, unreported, 1995 WL 870019, in which we stated:

"In State v. Hannah (1978), 54 Ohio St. 2d 84 [8 O.O.3d 84,374 N.E.2d 1359], a majority of the Supreme Court of Ohio held that any comment upon the absence of testimony from a witness named on the witness list is a clear violation of Crim.R. 16 (C) (3). `Subsequent decisions interpreting Hannah have held that Crim.R. 16 (C) (3) is applicable only where the "uncalled witness" had been supplied to the opposing side during the discovery process. * * * Where the witness mentioned is not on the list or there was no discovery list, counsel may comment on any absent witnesses.' * * * Jackson v. Howell (1993), 86 Ohio App. 3d 497, 500 [621 N.E.2d 573, 574-575]." (Emphasis added.) Id. at 38.

In the case sub judice, the uncalled witness's name was on the list, but that fact was not mentioned by the prosecutor. The fact that appellant's wife's name was supplied to the opposite side during discovery and did appear on the list is determinative, irrespective of the prosecutor's failure to mention the fact that her name appeared on the list.

The Second District Court of Appeals cogently stated in Statev. Chinn (Dec. 27, 1991), Montgomery App. No. 11835, unreported, at 7, 1991 WL 289178:

"Crim.R. 16 (C) (3) provides that `the fact that a witness' name is on a list furnished under subsection (C) (1) (c), and that the witness is not called shall not be commented upon at the trial.' The Supreme Court has interpreted this to mean that once a person's name is placed upon a witness list there is an absolute bar upon mentioning his absence at trial. [Hannah at 90, 8 O.O.3d at 87-88, 374 N.E.2d at 1363-1364.]

"The State argues that this is not the law in Ohio because the rule did not appear in the syllabus of Hannah. However, the Supreme Court specifically found in Hannah that an almost identical statement by a prosecutor constituted error. Also, our sister courts have decided that the prohibition in Hannah is the law of this State. State v. Ingle (Apr. 20, 1989), Cuyahoga App. No. 54483, unreported, 1989 WL 43396; State v. Smith (May 12, 1988), Franklin App. No. 87AP-300, unreported, 1988 WL 48024;State v. Carter (Dec. 27, 1985), Columbiana App. No. 84C55, unreported, 1985 WL 4801; State v. Harris (May 11, 1984), Lucas App. No. L-83-223, unreported; State v. Yoho (June 17, 1981), Stark App. No. 5578, unreported, 1981 WL 6326; State v. Harris (Dec. 29, 1978), Summit App. No. 8979, unreported. Several of these courts, including our own, have questioned the wisdom of this interpretation of Crim.R. 16 (C) (3). See, State v. Walton (May 11, 1987), Clark App. No. 2241, unreported, 1987 WL 10941;State v. Brooks (June 4, 1987), Montgomery App. No. 9190, unreported, 1987 WL 12231. See, also, the dissent per McCormac, J., in [Hannah], supra, at 91 [8 O.O.3d at 88,374 N.E.2d at 1364].

"We continue to hold to the view that the better interpretation is that the State is prohibited from mentioning the absence of a witness in conjunction with the fact that he was named on a witness list. However, this element, though apparently contained in the rule itself, is not required by Hannah. Courts have found no Hannah violation in previous cases because there was no evidence that the witness in question was actually named on a witness list. See, e.g., Walton, Ingle, and case[s] cited therewith supra.

"In this case Chinn's brother was named on a witness list. Therefore, the court should have ordered the comment of the prosecutor stricken. It was error to fail to do so. However, because we find that Chinn would yet have been found guilty even absent this comment, the error was harmless."

This writer agrees with the reasoning espoused by the dissenting justices in Hannah and the interpretation of its application as expressed in Davie and Chinn. However, since we are an error court, and. not a policy court, I believe that we are compelled to follow the rule of law, strictly, as articulated by the majority in Hannah under these particular circumstances.

I note, parenthetically, that, contrary to the majority's statement, the Jackson court did not expressly adopt the reasoning of the dissent in Hannah. Rather, the Jackson court held that there was no error because the "uncalled witness" was not named on a witness list exchanged during the discovery process and, therefore Crim.R. 16 (C) (3) did not apply. Id.,86 Ohio App.3d at 501, 621 N.E.2d at 575-576.

Pursuant to Hannah, the trial court erred by failing to strike the prosecutor's comment from the record. See Chinn at 7. However, based on the other evidence presented at trial, I believe that appellant would have been found guilty absent ths comment and, therefore, the error was harmless. Id. Thus, on that basis, I agree with the majority that appellant's first assignment of error is without merit.

In summary, I concur with the majority's conclusion that the second assignment of error is with merit. I further agree with the majority that appellant's first, third, fourth, and fifth assignments of error are without merit, and I concur on that basis.