2008 Ohio 5660 | Ohio Ct. App. | 2008
{¶ 2} On March 6, 2007, appellant's vehicle was stopped after an Ohio State Highway *2
Patrol Officer determined that he was travelling in excess of the speed limit, was driving in two lanes, and had a slow reaction to a red light. Upon approaching appellant, the officer detected the odor of alcohol emanating from him, and noted his eyes were both bloodshot and glassy. In addition, appellant admitted to the officer that he had a large beer (20 ounces) prior to operating his motor vehicle. The officer conducted a field sobriety test which appellant failed.2 The officer then requested that appellant submit to a portable breath test, but appellant refused. Subsequently, the officer placed him under arrest for the OVI, read him his Miranda rights and took him to the Monroe Police Department. While at the police department, appellant refused yet another breath test. Appellant was cited for speeding in violation of R.C.
{¶ 3} Appellant initially pled not guilty and requested a jury trial. A few days prior to the trial date, however, appellant withdrew his jury demand and the court set a bench trial for September 4, 2007. At the bench trial, the prosecution and the defense were both given the opportunity to present their cases. Each party presented one witness. After the defense rested their case, the prosecution recalled their witness, the patrol officer, to give further testimony. The defense was also given the opportunity to recross-examine the witness. The prosecution then rested its case. A "pause" was noted on the record, after which the judge made his findings of guilt as to the speeding violation, and found that a totality of the circumstances indicated that the state had proven beyond a reasonable doubt that appellant was guilty of an OVI and an OVI refusal with a prior conviction. The court then sentenced appellant accordingly.3 *3
{¶ 4} Prior to pronouncing the sentence and prior to adjourning court, the judge had at least two more conversations on the record with appellant's attorney. While the court did not ask for closing arguments, at no time did appellant's counsel object to not being able to make a summation, nor did he request the opportunity to make a closing argument. Appellant now appeals the trial court's decision by raising a single assignment of error.
{¶ 5} "THE TRIAL COURT ERRED AND DENIED APPELLANT A FAIR TRIAL IN VIOLATION OF THE
{¶ 6} In his sole assignment of error, appellant argues that the trial court denied his counsel the opportunity to make a closing argument before the court rendered its decision. We find appellant's argument without merit.
{¶ 7} In 1975, the United States Supreme Court discussed the issue of the denial of closing arguments in Herring v. New York (1975),
{¶ 8} The Court then went on to state that the defense's closing argument, "is a basic *4 element of the adversa[rial] factfinding process in a criminal trial." Id. Even where a case seems overwhelmingly in favor of the prosecution, defense counsel has a right to make a closing argument to a jury. Id.4 The Herring Court then noted there was considerable authority to suggest that "a total denial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense." Id. (emphasis added).5
{¶ 9} While the Herring Court did find that the defendant had a right to a "summation of the evidence most favorable to him" the Court's holding was limited to a constitutional violation where a trial court affirmatively denied the defense's request for a closing argument. Id. at 864-65. There was nothing in Herring to suggest that its holding applied when there was merely an omission of a summation.
{¶ 10} In Ohio, the appellate districts are split with regards to the issue of whether the omission of an opportunity to make a closing argument is a constitutional violation. The question was first addressed by the Tenth District in City of Columbus v. Woodrick (1976),
{¶ 11} The Fifth, Sixth and Seventh Districts have embraced the Tenth District's rationale and accepted the idea that "failure to request closing argument is an insufficient indication of a clear waiver of the right to present a closing argument." State v. Baron, Mahoning App. No. 05-MA-156,
{¶ 12} Other districts have adopted a contrary position on this issue. In State v. Brown (Dec. 30, 1983), Clermont App. No. CA-1210, 1211, at 4, this court found that the holding in Herring applied only to an improper denial of defense counsel's request for a final argument. InBrown, we found that because there was no request for a final argument by either party, both parties had the opportunity to request a summation, the trial court did not affirmatively deny any request by the appellant to make a closing argument, and the appellant failed to raise an objection to the trial court before or after the verdict was rendered, the failure to allow a closing argument was not reversible error.8 Id. at 4-5. *6
{¶ 13} A few years later, the Ninth District agreed with this court's rationale in Brown stating, "absent an affirmative denial of closing argument, the lack of such argument is not a basis for reversal."State v. Yoder (Feb. 5 1986), Wayne App. No. 2099,
{¶ 14} Both the Eleventh District and the Eighth District have also adopted a similar view. In State v. Erickson (Apr. 29, 1988), Lake App. No. 12-137,
{¶ 15} We find, consistent with our prior holding in Brown, that the Tenth, Fifth, Sixth and Seventh Districts' extension ofHerring's holding is unpersuasive. The opinion in Herring dealt with the affirmative denial of a summation request, and we decline to expand its *7 rationale to create a presumption against waiver when a closing is neither requested by the defense nor objected to when not offered by the court.
{¶ 16} We also take note of two additional cases with regards to this issue. In State v. Jack,
{¶ 17} Finally, we note that R.C.
{¶ 18} "The parties then may submit or argue the case to the jury. The party required first to produce that party's evidence shall have the opening and closing arguments. If several defendants have separate defenses and appear by different counsel, the court shall arrange their relative order." (Emphasis added).
{¶ 19} While the language of the procedure is specific to jury trials, the statute uses the word "may" rather than "shall" or "will" indicating the parties themselves carry the burden of asserting their desire to make a summation. We will not expand either the meaning of the Ohio Revised Code or the holding in Herring beyond what the plain meaning of their words convey.
{¶ 20} Turning to the instant case, and consistent with our holding inBrown, we find *8 Herring inapplicable to the facts now before us. The trial court did not deny appellant's request for a closing argument because appellant never requested a summation. Neither defense counsel nor the prosecution asked for a final argument, although they had the opportunity to request one before the court rendered its verdict. In fact, the record indicates there was a "pause" after the examination of the recalled witness, but before the judge made his determination. Appellant also neglected to raise an objection to the trial court either before, or after, the verdict was returned. The transcript of the trial also shows that appellant's attorney spoke to the court after the decision, yet nothing was mentioned regarding a summation.
{¶ 21} We also note that the bench trial was set for three o'clock p.m. and was completed by the end of the day, as there was no break indicated in the transcript. Furthermore, the state only called one witness, the patrol officer, and the defense only called appellant as a witness. There was also very little complexity to the case. With this in mind, it is entirely plausible that appellant's counsel did not feel the need to make a closing argument to the court.
{¶ 22} Finally we address appellant's argument that denial of a summation is reversible error, while appellee argues that a plain error standard should be applied to this matter.
{¶ 23} "A fair administration of justice requires that, when an error occurs in a trial, the trial judge should be given an opportunity, if possible, to correct it. Otherwise, a party could take a chance on success without raising any objection to such error, and then, if he failed to succeed, avail himself of an error which might otherwise have been corrected." State v. Hunt (Aug. 31, 1983), Warren App. No. 83-01-001, at 5; quoting 3 American Jurisprudence, 25 et seq., Section 246. Even if we assumed an actual error was involved, because appellant's counsel failed to raise the issue, any analysis made by this court would be under plain error. Crim. R. 52. *9
{¶ 24} An error or defect which affects substantial rights is analyzed under a plain error standard: (1) "there must be an error * * * a deviation from a legal rule;" (2) "the error must be plain" that is "an obvious defect in the trial proceedings;" and (3) "the error must have affected substantial rights" meaning "the error must have affected the outcome of the trial." State v. Barnes,
{¶ 25} "[An] error, defect, irregularity or variance which does not affect substantial rights shall be disregarded" as harmless error. Crim. R. 52(A); see also State v. Brown (1992),
{¶ 26} Plain error does not exist because there is no indication that the outcome of this trial would have been any different even if a closing argument had been made. As we previously stated, there were only two witnesses, the trial was conducted over a relatively short time period, and the issues were not so complex as to require a detailed summation at the close of evidence. Thus, even applying a plain error analysis, nothing indicates that the outcome of the trial would have been different had defense counsel presented a closing argument.
{¶ 27} Because the court did not deny appellant's counsel the ability to make a closing argument prior to making its judgment, appellant's assignment of error is hereby overruled.
{¶ 28} Judgment affirmed.
WALSH, P.J. and YOUNG, J., concur.
