However, where the reference to matters outside the record is short, oblique, and justified as a reply to defense arguments and elicits no contemporaneous objection, there is no prejudicial error. State v. Watson (1969), 20 Ohio App.2d 115, 49 O.O. 2d 152, 252 N.E.2d 305, paragraph two of the headnotes, sentence modified (1971), 28 Ohio St.2d 15, 57 O.O. 2d 95, 275 N.E.2d 153. In this case, the court of appeals held that the prosecutor improperly referred to Lott's rejected pretrial statement.
Nevertheless, where a statement not supported by admitted evidence is "short, oblique, and justified as a reply to defense arguments and elicits no contemporaneous objection, there is no prejudicial error." Lott, supra, at 166, 555 N.E.2d at 300, citing State v. Watson (1969), 20 Ohio App.2d 115, 49 O.O.2d 152, 252 N.E.2d 305. Because the defense failed to make contemporaneous objections to the prosecutor's statements, each alleged error has been waived.
Lott at 166, quoting State v. Stephens (1970), 24 Ohio St.2d 76, 83 (alteration sic). "However, where the reference to matters outside the record is short, oblique, and justified as a reply to defense arguments and elicits no contemporaneous objection, there is no prejudicial error." Lott at 166, citing State v. Watson (1969), 20 Ohio App.2d 115, paragraph two of the syllabus. {ΒΆ 34} First, Boler contends that the prosecutor argued that either Taz or D-Block must have fired the fatal shot.
{ΒΆ 27} In Lott, the Ohio Supreme Court instructed, "where the reference to matters outside the record is short, oblique, and justified as a reply to defense arguments and elicits no contemporaneous objection, there is no prejudicial error." Id., citing State v. Watson (1969), 20 Ohio App.2d 115, 252 N.E.2d 305, paragraph two of the headnotes, sentence modified (1971), 28 Ohio St.2d 15, 275 N.E.2d 153. {ΒΆ 28} Where the defendant fails to object to the alleged misconduct, he waives all but plain error.
There is no prejudicial error where the State replies to statements made in the course of an argument by defense counsel, which are of such a nature as to require an answer. State v. Lott (1990), 51 Ohio St.3d 160, 166; State v. Watson (1969), 20 Ohio App.2d 115, 125. We do not find that the prosecutor engaged in any misconduct or improper vouching in that portion of Mason's re-direct examination.
{ΒΆ 21} During closing arguments, the prosecutor also stated to one of the jurors, Franklin Snyder, "I think on voir dire, I think you indicated you were investigating students that normally there's something that leads to something else that causes what happens," to which the juror nodded affirmatively. {ΒΆ 22} Regarding the prosecution's address of an individual juror during closing arguments, we recognize that a prosecutor's argument that goes outside the record and adversely influences the jury toward the defendant can result in the denial of a fair trial, State v. Watson (1969), 20 Ohio App.2d 115. Where reference to matters outside the record is short, oblique and justified as a reply to a defense argument, however, it does not prejudice the defendant and is not error. {ΒΆ 23} The comment made to the juror in this case was short; it was made by way of an analogy, and urged the juror to draw on his own experience in considering the case and the charges against Call.
There is no prejudicial error where the State replies to statements made in the course of an argument by defense counsel which are of such a nature as to require an answer. State v. Lott (1990), 51 Ohio St.3d 160, 166; State v. Watson (1969), 20 Ohio App.2d 115, 125. With regard to the prosecutor's repeated statements that defendant admitted to being "crazed," the trial transcript shows that defendant did not make such an admission.
There is no prejudicial error where the State replies to statements made in the course of an argument by defense counsel which are of such nature as to require an answer. State v. Lott (1990), 51 Ohio St.3d 160, 166; State v. Watson (1969), 20 Ohio App.2d 115, 125; Ross v. State (May 17, 1926), 22 Ohio App. 304, 307. Moreover, the State is not prevented from commenting upon the failure, on the part of the defense, to offer any evidence in support of its case.
There is no prejudicial error where the State replies to statements made in the course of an argument by defense counsel which are of such nature as to require an answer. State v. Lott (1990), 51 Ohio St.3d 160, 166; State v. Watson (1969), 20 Ohio App.2d 115, 125; Ross v. State (May 17, 1926), 22 Ohio App. 304, 307. Moreover, defendant was tried before the bench and not before the jury.
Improper closing argument requires reversal when the argument viewed in its entirety denies defendant a fair trial. State v. Watson (1969), 20 Ohio App.2d 115 [49 O.O.2d 152], modified on other grounds, 28 Ohio St.2d 15 [57 O.O.2d 95]; State v. Brown (Nov. 12, 1981), Cuyahoga App. No. 43427, unreported. We find that the prosecutor's remarks here did not deny these defendants a fair trial.