I respectfully dissent from the majority's disposition of the first assignment of error, and from the judgment.
The prosecutor's remarks, quoted in the majority opinion, were made during the rebuttal portion of the state's closing argument, which takes up twenty-one pages of the written record.
The offending remarks were "send (Luoma) back to Skylark", "send him home", and other similar expressions.
I cannot agree with the majority that these remarks were a calculated invitation to the jury to ignore the evidence and to consider the societal risks attendant upon a not guilty verdict.
I view these remarks as, at most, improper rhetorical flourish added to otherwise legitimate rebuttal argument, the gist of which was, to paraphrase, "if you think the State tried to trick you, or if you buy into this accident or insanity business, find Luoma not guilty; send him home." I agree with the majority that "send him home", and similar expressions, were improper because they could have suggested that a finding of not guilty by reason of insanity would result in Luoma's immediate release, which was only one possible eventuality if the jury so found. (It was the only eventuality if the jury found that the shooting was an accident.)
Rather than finding the prosecutor's offending remarks to be an invitation to ignore the evidence because Luoma was a menace to society, I find them to be disparagement of defense counsel's argument that the state's case was built on distortions, and disparagement of the accident and insanity defenses.
Because the remarks did intrude upon the subject of consequences, they were improper. In the absence, however, of any invitation to ignore the evidence in the interests of public safety or the like, I fail to see any significant possibility of prejudice to Luoma. Certainly the jury must be given credit, even in the absence of any instruction, for appreciating that the consequences attendant upon a finding of not guilty by reason of insanity were different than those attendant upon a finding of guilty, even though the consequences did not necessarily include immediate release. The jury would not have needed the possibly misleading remarks of the prosecutor if, ink fact, it would have been of a mind to ignore the evidence because of public safety concerns.
It must also be remembered that, in addition to not guilty by reason of insanity, Luoma interposed the defense of accident, which, if found by the jury, would have resulted in a finding of not guilty. The jury should be given credit for appreciating the consequences of finding Luoma not guilty on that basis, particularly where it had been instructed that punishment is the province of the court where there is a finding of guilty.
Assuming arguendo that the prosecutor's remarks were Prejudicial, they would not, in my estimation, rise to the level of plain error. See State v. Underwood (1983), 3 Ohio St. 3d 12. As such, error can only be predicated upon the prosecutor's remarks if they were objected to during the trial in a manner sufficient to preserve the error for appellate review. In my judgment, they were not.
Although the majority recognizes the desirability of at least a continuing objection to a repetitious line of argument, the majority does not insist upon it as the price of preservation. *61I disagree. I fully appreciate the practical difficulties of objecting during final argument to every offending remark in a repetitious line of argument, and I would not insist that counsel do so or be held to have waived his objection. I would insist, however, that where an offending repetitious line of argument is undertaken, a continuing objection be interposed to preserve the alleged error for appellate review.
Where, as here, an objection to an offending remark is overruled, the trial judge must be alerted to the fact that counsel does not agree with his initial ruling when the offending remark is next repeated in the argument. If counsel does not want to object repeatedly, he must utilize a continuing objection. Otherwise, the trial judge has no way of knowing with certainty that counsel continues to contend that the line of argument is improper, and, accordingly, the trial judge should not later be held to have erred in permitting the line of argument.
For these reasons, I would overrule the first assignment of error.