State v. Neeley , 143 Ohio App. 3d 606 ( 2001 )

The majority states, "[w]e caution prosecutors to refrain from making such misstatements of the evidence and the law in the future." But as Chief Justice Moyer has written, in his eloquent dissent in State v.Fears, "Refusing to address the fundamental unfairness of a trial riddled with prosecutorial misconduct because a majority of this court deems the evidence of guilt to be overwhelming creates the perception that we protect the right to a fair trial only when we believe that the defendant is not guilty. However, our constitutional duty is to ensure that all defendants, regardless of guilt or innocence, receive a fair trial, and to ensure that a person accused is presumed innocent until the state, within the bounds of due process, satisfies its burden of proving beyond a reasonable doubt all of the elements of the charged offense * * *."³⁷

Here, the evidence is not overwhelming, but we continue to condone what the majority correctly calls prosecutorial excesses. In an effort not to be "soft on crime," we have become soft on the law.

The majority says that it is "deeply concerned by the improper remarks," but then refuses to do the one thing that would show that concern, and send a message that such conduct will not be tolerated — grant a new trial. Only when actions have consequences will they be deterred.

I also refuse to condone the prosecutor's thinly veiled reference to Neeley's refusal to testify. The majority properly states that it was error, but somehow holds this blatant Constitutional violation harmless. The majority simply states that the evidence "though circumstantial, was sufficient to sustain the jury's verdict, and the verdict was not against the manifest weight of the evidence." That is not the standard. In order to hold the comment harmless, we must find that "the prosecutor's improper comments were harmless beyond any reasonable doubt."³⁸ Surely, in a purely circumstantial case, the error is not harmless beyond any reasonable doubt. Our constitutional duty is to reverse.

Additionally, we should grant a new trial because of the manifest prejudice in playing the videotape. The majority simply shrugs this off in one sentence. The still photographs — fourteen of them — are gruesome enough, but I can almost go along with the holding that they were not overly prejudicial. The video crosses any line — I was not able even to make it through the whole tape. Any probative value was far outweighed by the live maggots. The only reason to play the tape was to inflame the jury. We condone this conduct far too often.³⁹

The "other acts" evidence of the Kentucky conviction was admissible to show motive, but the underlying facts of the conviction were not. There is no doubt that the prosecutor's comment that Neely "went on trial for shooting another man with a shotgun" was improper. The majority ignores this statement. Too often, this court allows the state to get away with using other-acts evidence improperly.

The "opinion" testimony of the officer that Smith had no other enemies was also improper. I would not reverse on that alone, but it just adds to the cumulative effect — the effect of the sum of the errors mandates reversal.

The trial was fraught with error. It was not a fair trial. The majority opinion tortuously weaves its way around some errors, dodges others, and runs careeningly off the road of the law. We should sustain Neeley's fifth, seventh, eighth, eleventh, and thirteenth assignments of error and remand for a new trial free of those errors.

³⁷ State v. Fears (1999), 86 Ohio St.3d 329, 353, 715 N.E.2d 136,154.

³⁸ State v. Zimmerman (1985), 18 Ohio St.3d 43, 45,479 N.E.2d 862.

³⁹ See State v. Reaves (1998), 130 Ohio App.3d 776, 721 N.E.2d 424 (Painter, J., concurring in part and dissenting in part).