State v. Pinkney

522 N.E.2d 555, 36 Ohio St. 3d 190, 1988 Ohio LEXIS 124
CourtOhio Supreme Court
DecidedMay 4, 1988
DocketNo. 87-831
StatusPublished
Cited by36 cases

This text of 522 N.E.2d 555 (State v. Pinkney) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pinkney, 522 N.E.2d 555, 36 Ohio St. 3d 190, 1988 Ohio LEXIS 124 (Ohio 1988).

Opinion

Glasser, J.

Appellant’s first of seven propositions of law asserts that the trial court erred in not requiring the state to provide rebuttal evidence to support its cross-examination of a critical defense witness. Appellant’s witness, Martin J. Hughes, testified on direct examination that he had approached Pinkney about the possibility of pro,curing directors’ liability insurance for members of the board. Upon cross-examination, counsel for the state asked Hughes if he recalled when and where such request was made and whether Hughes had been able to recall such when subsequently questioned by detectives from the sheriff’s office.2

Appellant contends that this line of [193]*193questioning was improper once it became apparent that the state was not going to offer any rebuttal evidence such as the statements or testimony of the detectives. We do not agree.

Initially we note, as did the appellate court, that, although appellant referred to this alleged error in closing argument, he failed to timely interpose an objection. Such omission constitutes a waiver of the issue upon review. State v. Williams (1977), 51 Ohio St. 2d 112, 5 O.O. 3d 98, 364 N.E. 2d 1364, vacated on other grounds (1978), 438 U.S. 911; see, also, State v. Young (1908), 77 Ohio St. 529, 83 N.E. 898. Notwithstanding the waiver, we note that the state’s line of questioning involved the ability of a witness to recall certain conversations. Clearly, the credibility of a witness may be affected by his ability to state correctly and clearly the facts as he remembers them and as they took place. Hence, the clearness or want of clearness of recollection of a witness as affecting that witness’s credibility is a proper subject for cross-examination. Additionally, the presentation of collateral evidence relative to the credibility of a witness, as opposed to a party, is disfavored as it tends to divert the attention of the jury and waste judicial time. See State v. Kehn (1977), 50 Ohio St. 2d 11, 4 O.O. 3d 74, 361 N.E. 2d 1330. Hence, the state’s line of questioning was not improper and appellant’s first proposition of law is overruled.

Appellant alleges as his second proposition of law that the trial court violated his right to the effective assistance of counsel by prohibiting defense counsel from making direct reference to the applicable law in [194]*194counsel’s summation. Specifically, appellant argues that the trial court erred in not allowing counsel to read to the jury directly from the text of the applicable statutory section or the actual charge the court had indicated would be given to the jury. Appellant asserts that such denial impeded counsel’s ability to emphasize these points of law which were critical to the defense.

As authority for this proposition appellant relies on United States v. Sawyer (C.A.D.C. 1971), 443 F. 2d 712, wherein the court stated that although a trial court has broad discretion in controlling the scope of argument, that “discretion is abused, however, if the court prevents defense counsel from making a point essential to the defense.” Id. at 713. Hence, if appellant’s counsel had been totally barred from arguing a point essential to the defense, such denial would constitute an abuse of discretion. In the instant case, however, defense counsel was not totally barred from arguing any essential points. A review of the record indicates that while the trial judge did not allow defense counsel to read directly from the statute or the jury charge, counsel was permitted to comment on and summarize both.3 As in Sawyer, supra, counsel was able to make and emphasize the critical points in a form that the trial court found acceptable. Accordingly, we find no prejudice and appellant’s second proposition of law is overruled.

Appellant asserts in his third proposition of law that the trial court erred in allowing the prosecutor to argue, in essence, that appellant would not have been indicted by the grand jury if the exemptions in R.C. 2921.42(C)4 were applicable and that any argument con[195]*195cerning these exemptions had already been decided against the defendant. The portion of the state’s closing argument in dispute included the following:

“What else could you possibly want here? He knew that he had taken an oath. He knew that he had a trust. He knew the money wasn’t his to do with whatever he pleased. He went ahead, however, and put himself in a position where he was going to take it anyway.
“You’ve heard about certain exemptions to the statute. We wouldn’t be here if there had been an arm’s length transaction —
“MR. WILLIS: Objection.
“THE COURT: Overruled.
“MR. TERRY: If everybody knew who they were dealing with or what they were dealing with and if there had been a properly made motion or resolution and Mr. Pinkney had not voted on it, or if it could be shown that the only insurance company in the whole wide world or at least in this country or service area where you could get the policy of insurance to cover the members of a Port Authority for whatever mistakes they might make as Port Authority members could only be obtained by the PinkneyPerry Insurance Agency.”

Upon review of the above-cited passage, we are hard-pressed to construe such comments as implying that appellant would not have been indicted by the grand jury if he were not guilty. Rather, placing the prosecutor’s comments in context it appears that they were aimed at arguing that the “arm’s length” transaction exception of R.C. 2921.42(C)(4) was not demonstrated by the facts adduced at trial. No reference to the grand jury was made in counsel’s closing argument nor was there any implication that grand jury proceedings are determinative of guilt. As there is nothing in the record to support appellant’s contentions, his third proposition of law is without merit and is overruled.

Appellant’s fourth proposition of law is that due process was denied him when defense counsel was prevented from making certain arguments to the jury. Further, appellant takes exception to certain allegedly gratuitous remarks made by the trial court that tended to disparage or belittle counsel in the presence of the jury.

Appellant contends that the trial court’s failure to take curative action after the state failed to introduce rebuttal evidence after questioning defense witness Martin Hughes foreclosed appellant’s opportunity to deal with this subject. Appellant contends that the trial court should have given a curative instruction pursuant to United States v. DeFillipo (C.A. 2, 1979), 590 F. 2d 1228, wherein the [196]*196court stated that a “jury may not presume the truthfulness of what the lawyer assumes in a question unless the assumption is supported in the record.”5 Id. at 1239.

The prosecution did not undertake to assume any outside facts nor attempt to have the jury consider such facts as true. As we noted in addressing appellant’s first proposition of law, the challenged line of questioning was a proper vehicle to test the ability of the witness to recall certain events and did not create a false inference prejudicial to the defense. Accordingly, no rebuttal evidence was required and

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Cite This Page — Counsel Stack

Bluebook (online)
522 N.E.2d 555, 36 Ohio St. 3d 190, 1988 Ohio LEXIS 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pinkney-ohio-1988.