Summary
In State v. Zimmerman (1985), 18 Ohio St.3d 43, 45, the court stated that, even if the prosecution makes an improper comment on a defendant's failure to testify, the "conviction must be affirmed if it is concluded, based on the whole record, that the prosecutor's improper comments were harmless beyond any reasonable doubt.
Summary of this case from State v. ButlerOpinion
No. 84-1059
Decided June 26, 1985.
Criminal law — Prosecutor's reference to accused's failure to testify — Harmless error rule applicable.
O.Jur 3d Criminal Law §§ 323, 1542.
In determining whether a prosecutor's reference to the accused's failure to testify requires reversal, courts must apply the harmless-error doctrine. ( United States v. Hasting, 461 U.S. 499, applied.)
APPEAL from the Court of Appeals for Greene County.
Appellant was convicted of operating a motor vehicle while under the influence of alcohol after a jury trial in Fairborn Municipal Court. During closing argument the prosecutor called the jury's attention to the fact appellant had not testified:
"Let me make some other comments. Obviously, it is not the number of witnesses a side has as to whether or not they win a lawsuit. If that was the case, I think we'd have a winner. I think we had three. I think the Defendant had two.
"The Defendant chose not to testify on his own behalf.
"* * *
"* * * [I]f you liken this case to a baseball game, when you boil it down, the game was all about whether or not Mr. Zimmerman was operating under the influence. When you consider the evidence that has been presented, the box score in this ball game, Ladies and Gentlemen, happened to be three to zip.
"There were three witnesses in this trial that testified as to whether or not he was guilty of operating a motor vehicle under the influence. One witness saw what happened from the outside, observing his vehicle. That guy wore a uniform and a badge. Two others happened to be in the vehicle a short time before and saw it from the inside looking out.
"Two other witnesses testified as to whether or not he was under the influence while dancing or under the influence while buying beer.
"Ladies and Gentlemen, if this trial was a ball game, the score was three to nothing. It was a shutout in favor of the State of Ohio.
"Now, I ask you to consider when you deliberate this case * * *.
"You know, you have been very patient with each of us. You have been patient with the Court, but I want you to consider the State is not relying upon this piece of paper that happens to be a test result to substantiate this case. Do you know what this piece of paper does? It corroborates the other parts of the State's case. It solidifies this idea that these physical symptoms were what they were stated to be. It solidifies Mr. Zimmerman was guilty of erratic driving. By the way, when you boil all the evidence down concerning whether or not he ran off the road or whether he was guilty of erratic driving, you know what it boils down to? There was one to nothing on that. There was one witness in the world that came into this courtroom and told you folks yesterday that he did what the State claims he did, and it happened to be that officer. There is absolutely no other witnesses that testified as to whether or not he was guilty of erratic driving at the time he was stopped; not any others."
Appellant was convicted and sentenced. The Court of Appeals for Greene County affirmed.
This cause is now before the court pursuant to the allowance of a motion for leave to appeal.
Joe R. Fodal, for appellee.
Dan D. Weiner, for appellant.
The issue presented in this case is whether the prosecutor's comments on the accused's silence require the automatic reversal of the conviction.
It was improper for the prosecutor to comment on the accused's silence. Griffin v. California (1965), 380 U.S. 609, 615. However, the prosecutor's improper comments do not require automatic reversal of the accused's conviction. The conviction must be affirmed if it is concluded, based on the whole record, that the prosecutor's improper comments were harmless beyond any reasonable doubt. United States v. Hasting (1983), 461 U.S. 499; cf. State v. Smith (1984), 14 Ohio St.3d 13.
Therefore, the question we must ask is this: Absent the prosecutor's allusion to the failure of the accused to testify, is it clear, beyond any reasonable doubt, that the jury would have returned a verdict of guilty? Hasting at 510-511.
In the case at bar, the evidence against the appellant was overwhelming. An Ohio Highway Patrol officer testified that he observed appellant driving fifteen to twenty miles per hour over the speed limit and weaving from side-to-side in his lane of travel. When the officer stopped appellant, he saw a part-empty open bottle of beer in appellant's car. The officer smelled alcohol on appellant's person and, therefore, asked appellant to take three sobriety tests. Appellant failed all three tests and was then arrested. Appellant then submitted to an intoxilyzer test which showed he had a breath alcohol content of .17, well in excess of the legal limit.
Two other witnesses testified for the prosecution. They stated they were at a wedding reception with appellant and that he drove them home. Shortly thereafter, he was stopped by the Highway Patrol. Both witnesses testified that appellant had been drinking, that he was speeding and weaving while driving them home, and that in their opinion he was driving while under the influence of alcohol.
In light of this overwhelming evidence of guilt, we are satisfied beyond any reasonable doubt that the prosecutor's improper comments were harmless.
For the foregoing reason, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN and WRIGHT, JJ., concur.