{¶ 2} On April 18, 2002, Darrel Harless was mowing his front lawn. His wife, Virginia Harless was inside the home vacuuming and listening to music. As he turned the corner from the front yard to the back yard, Mr. Harless observed a blue, older pickup truck backing out of his back yard, right about where the chain linked fence starts on his property. Mr. Harless turned off his lawn mower and began jogging toward the truck. At this time, Mr. Harless observed that the fence was damaged. The truck did not stop or slow down. Mr. Harless yelled to his wife to write down the license number and color of the truck. After he and his wife examined the fence, Mr. Harless jotted down a description of the truck and the driver of the truck. (T. at 28). Photographs of the yard and the fence were taken by Mrs. Harless. The couple called the Ohio State Highway Patrol to report the incident at approximately 2:05 p.m.
{¶ 3} Trooper James Thompson arrived at the Harless residence around 3:47 p.m. The trooper took photographs and a report from the Harless'. The trooper ran a check on the license plate number he had been given by the Harless'. The plate came back to a blue Ford pickup truck owned by appellant.
{¶ 4} On April 18, 2002, appellant was a student at Madison High School. The school's parking lot abuts the residence of the Harless'. Appellant testified that his last class ended at 2:05 p.m. After speaking with a teacher and some friends and then going to his locker, he proceeded to his truck in the parking lot. Due to the age and mechanical problems with the vehicle, appellant testified that it generally takes him ten to fifteen minutes to get the engine started. (T. at 126). Appellant admitted driving past the Harless residence and seeing Mr. Harless, but denied any involvement in the accident. Two employees for the school district testified that they observed damage to the fence prior to 2:00 p.m.
{¶ 5} A jury trial was held in the Mansfield Municipal Court on October 29, and 30, 2002. The jury found the appellant guilty of failure to stop after an accident involving damage to realty. The trial court found the appellant guilty of failure to control. The court deferred sentencing and ordered a pre-sentence investigation report.
{¶ 6} On November 14, 2003, the trial court held a sentencing hearing. The court sentenced the appellant to sixty days in jail and a fine of $50.00 for failure to stop after an accident involving damage to property and fined the appellant $50.00 on the failure to control charge. The trial court suspended all sixty days of the jail sentence.
{¶ 7} Appellant timely appealed. Appellant assigns three errors to the trial court:
{¶ 12} In his first assignment of error appellant alleges he was denied effective assistance of counsel due to counsel's failure to object and failure to move for a mistrial or curative instruction with respect to certain testimony of the investigating officer. In his second assignment of error the appellant argues the trial court erred by not sua sponte declaring a mistrial due to misconduct on the part of the prosecutor. In his third assignment of error appellant argues that he was denied a fair trial and due process of law due to the misconduct of the prosecutor.
{¶ 13} On direct examination the investigating officer testified that appellant's mother called and left a message that an attorney advised appellant not to speak to the officer concerning the hit-skip allegations. (T. at 79). No objection was made to this testimony. The officer further testified that appellant, after initially agreeing to meet with the officer to discuss the case, failed to appear for his scheduled appointment. (T. at 73). The trial court sustained defense counsel's objection and advised the prosecutor to instruct his witness not to mention the appellant's unwillingness to speak to the officer or to keep his appointment. (T. at 73-78). No requests for a curative instruction or a mistrial were made by defense counsel. Thereafter, on cross-examination the following exchange occurred: "Q. Yes. I apologize. The total and only basis for your opinion that Mr. Shaffer is the one that caused this accident and hit Mr. Harless' fence is information Mr. Harless provided to you? A. Initially, yes. Q. What kind of subsequent investigation led you to believe that this was more true? A. Mr. Shaffer's mother calling down and refusing to talk about the accident." (T. at 89). No request for a mistrial was made by defense counsel.
{¶ 14} Appellant argues that this was an impermissible comment upon appellant's right to remain silent. Appellant further argues that the officer's deliberate disregard of the trial court's ruling that he not mention the refusal of appellant to speak with him warranted the declaration of a mistrial and denied him due process. Appellee argues that comments were admissible because the officer was testifying to the course of his investigation of the hit-skip accident.
{¶ 15} A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry in whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel's essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell (1993),
{¶ 16} In determining whether counsel's representation fell below an objective standard of reasonableness, judicial scrutiny of counsel's performance must be highly deferential. Bradley,
{¶ 17} The test for prosecutorial misconduct is whether the prosecutor's comments and remarks were improper and if so, whether those comments and remarks prejudicially affected the substantial rights of the accused. State v. Lott (1990),
{¶ 18} In reviewing a claim that a mistrial should have been granted, the Ohio Supreme Court has noted "[t]his court has instead adopted an approach which grants great deference to the trial court's discretion in this area, in recognition of the fact that the trial judge is in the best position to determine whether the situation in his courtroom warrants the declaration of a mistrial. [State v.] Widner [(1981),
{¶ 19} During the appeal of the case at bar, the Ohio Supreme Court has held "that use of a defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination." State v. Leach (2004),
{¶ 20} In light of the Supreme Court's decision in Leach, supra the testimony that appellant's mother called back and stated an attorney advised appellant not to speak with the police and that the appellant failed to appear for an appointment to speak to the police were error.
{¶ 21} The evidence in the case at bar was not overwhelming. Essentially it was the word of appellant and his witnesses versus the property owner who did not see the vehicle strike his fence. (T. at 41). No physical evidence was presented to link appellant to the accident. (T. at 83-85; 89). The officer's response on cross-examination clearly was that in his opinion appellant was guilty because he refused to talk to the police and had consulted an attorney. (Id. at 89). The officer had been advised to avoid this area of comment. (Id. at 77). Under the facts of this case the evidence of guilt was not overwhelming; therefore the admission of defendant's pre-arrest, pre-Miranda silence was clearly prejudicial.
{¶ 22} Accordingly, appellant's three assignments of error are sustained.
{¶ 23} For the foregoing reasons, the judgment of the Mansfield Municipal Court, Richland County, Ohio, is reversed and remanded, and this case is remanded for further proceedings consistent with this opinion.
By Gwin, P.J., Wise, J., and Edwards, J., concur.
{¶ 24} For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Mansfield Municipal Court, Ohio, is reversed and the case is remanded to the trial court for proceedings consistent with this opinion. Costs to appellee.