Citation Numbers: 720 N.E.2d 149, 130 Ohio App. 3d 360
Judges: DOAN, Judge.
Filed Date: 10/16/1998
Status: Precedential
Modified Date: 1/13/2023
I, too, am disturbed by the conduct of the prosecution in this case. However, given the specific circumstances of this case, and most significantly the overwhelming evidence of Smith's guilt, I am unable to conclude that this conduct necessitates a reversal of Smith's murder conviction. Therefore, I respectfully dissent. My reasoning is as follows. *Page 374
The question is "whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify."19 Based on my review of the record, I cannot conclude that the prosecutor intended his statement, or that the jury would have naturally and necessarily interpreted the prosecutor's statement, as a comment on Smith's silence. Rather, I conclude that the comment was directed to the strength of the state's evidence.
Smith's argument focuses on the fact that the prosecution knew that there was no way for him to present an alibi defense other than if he took the stand himself. This is true because Smith told police, when his statement was taken following his arrest, that he had been alone at the time of the murder. Thus, Smith could offer no witness, other than himself, to testify as to his whereabouts. Because the prosecutor was aware of this, Smith argues that the prosecutor's remark can only he interpreted as a reference to his failure to take the stand. While I agree that the prosecutor must have been aware of Smith's statement to the police, I do not believe that this fact alone establishes that the prosecutor intended the remark as a reference to Smith's silence. Rather, given that the jury did not know of Smith's statement to police or its contents, and given that the prosecutor did not explicitly mention Smith's failure to testify or imply that the jury should take a position based on his silence, I conclude that the prosecutor did not intend that this remark be interpreted as, nor could the jury have naturally and necessarily taken the remark as, a comment of Smith's silence. It is more likely that the prosecutor's remark was intended to highlight that the defense had failed to rebut the testimony of the state's witnesses, a purpose that is clearly permissible.20 Thus, the comment did not violate Smith's Fifth Amendment privilege against self-incrimination. *Page 375
Additionally, I do not believe that the prosecutor's single reference to alibi would have led the jury to believe that the defense bore the burden of proof on this issue. Furthermore, any potential confusion on the part of the jury was cured by the trial court's general charge that the burden of proof rested solely on the prosecution.
Accordingly, I conclude that the prosecutor's reference to alibi, though perhaps imprudent, was not improper in its full context and, accordingly, did not constitute error.
Accordingly, I would affirm the trial court's judgment.