State v. Roberson, Unpublished Decision (04-09-2001)
State v. Roberson, Unpublished Decision (04-09-2001)
Opinion of the Court
ASSIGNMENTS OF ERROR;
I. THE TRIAL COURT ERRED BY REPEATEDLY MAKING COMMENTS ABOUT APPELLANTS CASE AND COUNSEL THEREBY DENYING APPELLANT A FAIR TRIAL.
II. THE TRIAL COURT ERRED IN NOT ORDERING A MISTRIAL FOLLOWING PROSECUTORIAL MISCONDUCT WHICH DENIED APPELLANT A FAIR TRIAL IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE OHIO AND UNITED STATES CONSTITUTION.
At trial, the State presented evidence Canton City Police, FBI, and a parole officer had information appellant would be at a residence in Stark County, Ohio, carrying cocaine. The officers waited at the residence, and appellant arrived. Officers put appellant on the ground and searched him, finding approximately one-half kilogram of cocaine and over $6,000 on his person. Appellant's theory of the case was that the residence where appellant was found was the home of a convicted drug trafficker who was on parole. Appellant argued although there were illegal drugs found in the home, he was the only person charged on that day. Appellant argued to the jury the State failed to prove it was appellant who possessed the cocaine. I; In his first assignment of error, appellant urges the trial court made derogatory comments about appellant's defense and about defense counsel. The first witness the State called was Michael Beebe, a parole officer with the State of Ohio. Officer Beebe testified he was assigned to the Stark County Violent Crimes Task Force on December 1, 1999. On that day, Officer Beebe and the other officers went to the residence of Tarice Sanders, one of Beebe's parolees. Beebe testified appellant came to the home carrying a large amount of cocaine and a large amount of cash. On cross, appellant established Tarice Sanders had previously been convicted of drug trafficking, and also established that not only Sanders but another person, a juvenile, was in the residence prior to appellant's arrival. On cross, Officer Beebe testified the officers found a quantity of cocaine in the residence prior to appellant's arrival there. Officer Beebe admitted neither Sanders nor the other party was arrested for possession. During cross examination of Officer Beebe, appellant repeatedly questioned the witness regarding Sanders and the other person living in the home. After several questions, the State objected, and the court instructed that neither Sanders nor the other party was on trial, but rather just appellant. At that point, defense made an offer to proffer evidence into the record. The court responded "You can proffer all you want, but I'm sick of this, you doing what I tell you not to do * * * I heard about you, Mr. LoDico." Tr. of Proceedings, pages 95-96. At that point, appellant moved for mistrial. The court overruled the motion for mistrial, and defense counsel continued to cross examine Officer Beebe at some length. Appellant argues the trial court should not have made comments about defense counsel's theory of the case nor about defense counsel personally before the jury. We agree the trial court must be extremely circumspect in its comments in front of the jury, and must present a totally neutral attitude. We also agree with appellant the trial court's comments fell outside the range of appropriate remarks. However, we have reviewed the lengthy transcript, and we find the exchange between defense counsel and the court to be quite limited. Further, appellant concedes that after he moved for mistrial, the court changed the way it handled the proceedings. Our review of the transcript convinces us defense counsel had continued in his cross examination far beyond making his points to the jury, and a great deal of the cross examination was cumulative. The trial court has the authority to guide and control the trial within appropriate limits. We find the trial court did not restrain appellant from establishing the nature of his defense before the jury. We find the trial court's demeanor did not rise to a level of prejudicing appellant's right to a fair trial, nor did it impinge upon appellant's ability to present his defenses. The granting or denial of a mistrial lies within the sound discretion of the trial court, see State v. Glover
(1988),
For the foregoing reasons, the judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed, and the cause is remanded to that court for execution of sentence. By Gwin, J.,
______________________ Hon. W. Scott Gwin, J.
Edwards, P.J., Hoffman, J, concur.
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