State v. Cotton , 113 Ohio App. 3d 125 ( 1996 )

I concur in the majority opinion, but write separately because the admission of the hearsay and "other acts" evidence in this case is a blatant if not intentional violation of the Rules of Evidence that should not be repeated, and because I believe that this court should address some of the other issues — if the case is to be retried, we should give some guidance, so the same mistakes are not made again.

In State v. Roberts (Mar. 6, 1996), Hamilton App. No. C-950277, unreported, 1996 WL 96897, we stated yet again that evidence of prior acts admitted to demonstrate that the defendant's character may be in conformity with those prior acts was inadmissible. This rule is basic, long-standing, and should be known by any first-year law student. However, it seems to be constantly disregarded by some prosecutors and judges in this county. See, also, State v. Davis (June 19, 1996), Hamilton App. No. C-950767, unreported, 1996 WL 341606 (Painter, J., concurring).

The objectionable evidence in this case is not even evidenceof prior acts, but rather, it is evidence of unfounded personalbeliefs and prior unsubstantiated accusations.

First, the trial court allowed a former co-worker to testify that when she heard a television report about the allegations, she immediately knew "it's Rick Cotton." She had absolutely no basis for this belief, just a gut feeling. She further testified that she had been told that Cotton had committed similar acts before. Again, she had no personal knowledge of any such prior acts. A highway patrol officer was allowed to testify thatother girls he talked with, who were not even involved in the present case, accused Cotton. Counsel repeatedly objected to this evidence, and requested a bench conference. The trial judge denied both. Finally, an officer testified that Cotton was the subject of other allegations that were found to beunsubstantiated.

Unsubstantiated allegations may have been important to Fifteenth Century inquisitors in Spain, but such allegations have no probative value and cause extreme prejudicial harm in Twentieth Century criminal trials in the United States of America. We have the Rules of Evidence for a reason. Evid.R. 102 states that "[t]he purpose of these rules is to provide procedures for the adjudication of causes to the end that the truth may be ascertained and proceedings justly determined." The prosecutor, aided and abetted by the trial judge, continually sought, and was permitted, to introduce blatantly inadmissible evidence, thereby tainting the truth-seeking process.

Another issue was the positioning of deputy sheriffs in the courtroom. Cotton was incarcerated, and made the point that having a deputy seated very near him, with others in the courtroom, was akin to having him in jail clothing — giving the jury the impression that not only was he incarcerated, but dangerous. See Kennedy v. Cardwell (C.A. 6, 1973), 487 F.2d 101,104. The trial judge stated that the positioning of deputies in the courtroom was beyond his control — and told counsel to call the sheriff if he had a problem! This is not only incorrect, but disingenuous. Trial courts have an affirmative duty to controlall proceedings during the trial in order to prevent bias or prejudice against the accused or a denial to him of a fair trial. State v. Farmer (1951), 90 Ohio App. 49, 46 O.O. 391,103 N.E.2d 289. See, also, R.C. 2945.03. Upon remand, this issue should be addressed by the trial judge.

Prosecutorial misconduct was rampant and egregious. On multiple occasions, the prosecutor solicited testimony of other accusations against Cotton, in a concerted effort to signal to the jury that Cotton has gotten away with this behavior before. This is basic misconduct, a blatant effort to obfuscate the evidence with innuendo. State v. Hunt (1994), 97 Ohio App.3d 372,646 N.E.2d 889. The reversal of this case is based on the ill-advised admission of this testimony.

Further, Cotton's attorney only learned for the first time attrial that Mrusek had multiple personality disorders, which had a direct bearing on her competency to testify. This failure was not a result of this attorney being asleep at the switch. The prosecutor knew of Mrusek's disorder well before trial, and therefore had an affirmative duty to tell Cotton's attorney, but failed to do so. See DR 7-103(B). Instead, the prosecutor sent a letter to the social worker for an alleged victim, Amy Mrusek, telling the social worker that she had the right to choose not to talk to Cotton's counsel, and wrote, "Obviously, we would suggest that you don't talk with anyone working for Ricky Cotton, but the choice is yours. You can simply tell his lawyer that you don't want to speak with him." Not surprisingly, the social worker and Mrusek refused to talk to Cotton's attorney, so the attorney could not learn independently that which the prosecutor had withheld from him.

The majority is correct to consider some of the assignments as moot, because the same problems should not occur on remand. The fiasco of the incorrect jury instructions will surely not recur, at least in the same way. However, before the retrial of this case, a thorough study of the Rules of Evidence by all concerned, and a study by the prosecutor of the Code of Professional Responsibility, especially DR 7-103(B), DR 7-106(C)(7), and EC 7-25, would seem to be in order.