I, too, am disturbed by the conduct of the prosecution in this case. However, given the specific circumstances of this case, and most significantly the overwhelming evidence of Smith's guilt, I am unable to conclude that this conduct necessitates a reversal of Smith's murder conviction. Therefore, I respectfully dissent. My reasoning is as follows. *Page 374
ALIBI COMMENT Smith argues that, because alibi could only be proven in this case by putting him on the stand,18 the prosecutor's reference to alibi directed the jury's attention to the fact that Smith had failed to testify and also gave the jury the impression that the defense was required to prove alibi. I cannot agree.
The question is "whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify."19 Based on my review of the record, I cannot conclude that the prosecutor intended his statement, or that the jury would have naturally and necessarily interpreted the prosecutor's statement, as a comment on Smith's silence. Rather, I conclude that the comment was directed to the strength of the state's evidence.
Smith's argument focuses on the fact that the prosecution knew that there was no way for him to present an alibi defense other than if he took the stand himself. This is true because Smith told police, when his statement was taken following his arrest, that he had been alone at the time of the murder. Thus, Smith could offer no witness, other than himself, to testify as to his whereabouts. Because the prosecutor was aware of this, Smith argues that the prosecutor's remark can only he interpreted as a reference to his failure to take the stand. While I agree that the prosecutor must have been aware of Smith's statement to the police, I do not believe that this fact alone establishes that the prosecutor intended the remark as a reference to Smith's silence. Rather, given that the jury did not know of Smith's statement to police or its contents, and given that the prosecutor did not explicitly mention Smith's failure to testify or imply that the jury should take a position based on his silence, I conclude that the prosecutor did not intend that this remark be interpreted as, nor could the jury have naturally and necessarily taken the remark as, a comment of Smith's silence. It is more likely that the prosecutor's remark was intended to highlight that the defense had failed to rebut the testimony of the state's witnesses, a purpose that is clearly permissible.20 Thus, the comment did not violate Smith's Fifth Amendment privilege against self-incrimination. *Page 375
Additionally, I do not believe that the prosecutor's single reference to alibi would have led the jury to believe that the defense bore the burden of proof on this issue. Furthermore, any potential confusion on the part of the jury was cured by the trial court's general charge that the burden of proof rested solely on the prosecution.
Accordingly, I conclude that the prosecutor's reference to alibi, though perhaps imprudent, was not improper in its full context and, accordingly, did not constitute error.
DENIGRATION OF DEFENSE COUNSEL Although I agree that the prosecutor's improper personal attack constituted error, because (1) the trial court immediately required the prosecutor's apology, admonished him for his behavior,21 and tacitly acknowledged that defense counsel had not engaged in misconduct; (2) the jury was instructed that the attorneys' statements during closing argument were not evidence; and, most important, (3) the evidence of guilt22 properly before the jury was overwhelming, I am unable to conclude, as the majority does, that Smith was prejudiced by these improper comments.
Accordingly, I would affirm the trial court's judgment.
18 In his statement to the police, Smith claimed that at the time of the murder, he had been by himself in Lincoln Heights, but not at the scene of the murder. Further, defense counsel filed no notice of an alibi defense prior to trial.
19 Knowles v. United States (C.A. 10, 1955), 224 F.2d 168,170, quoted in State v. Cooper (1977), 52 Ohio 5t.2d 163, 173, 6 O.O.3d 377, 383, 370 N.E.2d 725, 733, vacated in part on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3137,57 L.Ed.2d 1157.
20 State v. Ferguson (1983), 5 Ohio St.3d 160, 162,5 OBR 380, 383, 450 N.E.2d 265, 267; State v. Webb (1994), 70 Ohio St.3d 325,329, 638 N.E.2d 1023, 1028-1029.
21 See Hart, 94 Ohio App.3d at 674, 641 N.E.2d at 760 (concluding that prosecutor's improper denigration of defense counsel was cured by prosecutor's apology and trial court's remedial action).
22 But, see, Keenan, 66 Ohio St.3d at 411, 613 N.E.2d at 210 (concluding that without overwhelming evidence of guilt, and in the absence of remedial action by the trial court, it could not be held that prosecutor's misconduct during closing argument did not result in prejudice to the defendant). *Page 376