370 N.E.2d 775 | Ohio Ct. App. | 1977
This cause came on to be heard upon the appeal; the transcript of the docket, journal entries and original papers from the Court of Common Pleas of Hamilton County; and the transcript of the proceedings, the briefs and the arguments of counsel.
The assignments of error, having been fully considered, are accordingly passed upon in conformity with App. R. 12(A) as follows.
Defendant Hill was convicted of possession of a narcotic in violation of R. C.
In his second assignment of error, considered first for convenience, defendant claims that the glassine bag containing heroin which was removed from the rolled-up left leg of his jeans should have been suppressed because the arresting officer did not have probable cause to search or to arrest. Under State v.Timson (1974),
The arresting officer entered Eddie's Bar while his partner was writing a traffic ticket on the street. The general area was one in which drugs were sold and used, and the arresting officer had made four arrests in that same bar within the previous three weeks. The room (bar) was practically full, and the arresting officer concentrated his attention exclusively on Hill who was seated in a double booth in the rear of the room talking to two female impersonators. The officer did not know Hill, but had seen him in the company of other men who had since been arrested for possession of narcotics. The officer did not know Hill's name nor did he have any information about Hill's past history or record.
One of the female impersonators saw the arresting officer, said something not heard by the officer, and both female impersonators promptly moved away from Hill's booth towards the bar. The officer did not take his eyes from Hill. He saw Hill "duck down" that is, lean forward *395 and place his hands and arms under the table in the vicinity of his legs. From where he was standing at that time, the officer could not see anything in Hill's hands or underneath the table. As the officer approached the booth, Hill made a movement to leave the booth but was told to "remain steadfast." About this time, the arresting officer's partner came into the bar to the place where Hill was confronted. The arresting officer asked Hill for identification, received a card, asked for more identification, received another card, asked for still more identification than that and received Hill's wallet. The officer put the wallet on a table and proceeded to frisk Hill, starting "at the top around the collar" and proceeding down the trunk of his body to his two legs. Inside the rolled-up portion of the left leg of his jeans, the arresting officer found the glassine packet containing heroin.1 Thereafter, he told Hill he was under arrest.
Under these circumstances, the officer had reason to be suspicious of Hill, but not probable cause to arrest. In Sibron
v. New York (1968),
The second assignment of error is well taken.
The defendant claims, in his third assignment, that prejudicial error resulted when the prosecuting attorney appealed to the pecuniary interests of the jury in the closing argument.2 We find this assignment to be well taken.
Prosecutorial misconduct can be so prejudicial to the rights of a defendant that a reversal is required. Cleveland,Painesville Eastern R. R. Co. v. Pritschau (1904),
Considering seriatim these four factors, the prosecutor in effect told the jury that they could disbelieve the officer *397
only at their monetary peril; if they found against the officer, the city of Cincinnati would have to pay. Clearly this was a direct appeal to the pecuniary interests of the jury as taxpayers. Such appeals have been held to constitute reversible error. State v. Muskus (1952),
Defense counsel made no objection to the prosecutor's remarks, but this court is not precluded thereby from considering whether defendant was deprived of a fair trial. Martin v.State (1932), 12 Ohio Law Abs. 173. We conclude these remarks were plain error. State v. Craft (1977),
Were the objectionable statements "so essentially prejudicial that the court [was] required of his own motion to caution counsel or to take the statements from the jury?" State v.Harris (1940), 32 Ohio Law Abs. 221. We conclude that they were that prejudicial, and that the harm was not corrected. In his general instructions to the jury, the court stated that the closing arguments of counsel were not evidence, but he made no specific reference to the damaging remarks. This was insufficient.
Finally, the evidence in the instant case was not free of difficulty. There were substantial questions of credibility to be decided by the jury. Hill was not so clearly guilty beyond a reasonable doubt that the error can be said to have been harmless under Crim. R. 52(A). Moore v. State (1910), 18 C. C. (N.S.) 482.
We find this case analogous to those decisions of our sister states in which defendant's conviction for non-support or bastardy was reversed where the prosecution indicated that a not guilty finding would place the financial burden of raising the children on the jurors as taxpayers. Taylor v. State (1936),
The state argues in its brief that the prosecutor's remarks were justified as a retaliatory response to the "vicious attack" by defense counsel on the police officer's credibility. *398 We disagree. Defense counsel's closing argument raised the question of the police officer's veracity in a legitimate, professional manner. Discrepancies in his testimony were pointed out and reviewed, and defense counsel indicated her opinion that the police officer's statements were not worthy of belief. Surely such an argument could and should have been anticipated easily in light of defense counsel's queries to prospective jurors during voir dire about whether each would consider the possibility that a police officer would lie. We do not find that the prosecutorial misconduct here was warranted by any action of defense counsel.
In his first assignment of error, defendant claims that his rights to compulsory process, due process and a fair trial were denied when the trial court failed to require police officers to find eyewitnesses to his search and arrest who, he asserted, were material to his defense. Defendant does not claim that evidence in the possession of or known to the state was suppressed. In Kettering v. Baker (1975),
"Although we agree that it is not proper for a law enforcement agency to suppress evidence, we also conclude that it is not the agency's obligation to engage in affirmative action in gathering evidence which an accused might feel necessary to his defense. The accused must protect his own interests."
See, also, State v. Urrego (1974),
The case of Brady v. Maryland (1963),
The second and third assignments of error are well taken. We reverse and remand for a new trial.
Judgment reversed and cause remanded.
BETTMAN, P. J., CASTLE and BLACK, JJ., concur.
"He wouldn't be on the force six months, one month, if he was a liar, ladies and gentlemen. He's a devoted police officer. And a devoted police officer is as interested in the benefit of the defendant as he is the benefit of society who he is protecting. He's not going to come into a courtroom with a case that is made up. He's not going to charge a man who can sue him if he did something wrong. This guy could sue him civilly if he came into the courtroom with manufactured evidence, with lies, and with things that are not within the duty of a police officer to do, namely, to come into court with the proper evidence.
"A police officer is obligated before he takes action to know the action he takes. He can be sued for false arrest, malicious prosecution, and everything else. Do you think that a police officer is going to take a chance? The whole city of Cincinnati would have to pay off if there was a judgment in that respect. So the police officer is going to be sure when he comes before you that he comes here before you with a case." *399