The STATE of Ohio, Appellee, v. PERSON, Appellant, 167 Ohio App. 3d 419

Christine T.

McMonagle, Judge. {¶ 1} Defendant-appellant, Lavelle Person, appeals from the trial court’s judgment, rendered after a jury trial, finding him guilty of drug trafficking and possession of drugs, fifth-degree felonies, and sentencing him to 18 months’ incarceration. {¶ 2} In his four assignments of error, Person argues that the trial court should have declared a mistrial after the prosecutor elicited testimony that he remained silent after the arresting officers gave him his Miranda rights and, later, after the jury inquired during deliberations about the identification of Person by the state’s confidential reliable informant (“CRI”), who did not testify at trial; the trial court erred in sustaining the prosecutor’s objection to defense counsel’s use of photographs of the scene; and, the cumulative effect of these errors so prejudiced him that he was denied his right to a fair trial.

For the reasons that follow, we reverse and remand for a new trial. {¶ 3} The record reveals the following. On July 28, 2004, Cleveland police detectives from the Fourth District conducted a buy-bust operation. They utilized a CRI to approach persons believed to be selling drugs on the street in order to make a purchase of drugs within the sight of detectives. The detectives would first search the CRI, making sure he had nothing in his possession but a marked $20 bill. The CRI would then approach a person on the street and, in some manner or form, request to purchase crack cocaine. Six detectives would take

part in this procedure: two would be “controllers” and/or “observers;” four would act as “take-downs” or arresting officers. {¶ 4} In the buy-bust leading to Person’s arrest, Detectives John Hall and Terrance Longstreet acted as observers. Hall testified that he saw the CRI approach the seller and saw a hand-to-hand transaction take place. At the time of the transaction, the seller was on a bicycle riding northbound on the west side of East 116th Street. At the conclusion of the transaction, the seller turned southbound on East 116th Street, rode to Continental Street, and turned west.

Hall then lost sight of the seller. Detective Longstreet was parked in a location where he could not see the transaction; Detective Hall apprised him of what was happening via radio broadcast. {¶ 5} Detective Hall broadcast a description of the suspect; however, at trial, all he remembered of the description was the bicycle. Hall’s testimony was also inconsistent as to the distance from which he viewed the transaction. At one point, Hall testified that the CRI met up with the seller about 400 feet south of where Hall let the CRI out of the car.

At another point, however, Hall testified that the distance was “from the witness stand to the end of the courtroom” (approximately 40 feet). {¶ 6} As a result of the radio broadcast, the take-down officers (who were parked in another location) arrested Person, an African-American man seated on a bicycle on Continental Street. At trial, the take-down officers could not remember any details about the offender given to them over the radio, except that he was riding a bicycle.

Detective Hall came to the scene and identified appellant in what appellant has characterized as a “cold stand.” Detective Hall testified: {¶ 7} “I drove west on Continental with the CRI, and I confirmed to the take-down cars that the defendant was the individual that sold to the CRI, and that the CRI also confirmed that he was the male that — ” {¶ 8} Defense counsel immediately objected to this testimony, and the trial court sustained the objection. {¶ 9} Despite this ruling, when the prosecutor later questioned Detective Luther Roddy during trial, he asked the detective: {¶ 10} “Q.

Did Detective Hall identify him? {¶ 11} “A. Yes. {¶ 12} “Q. Did the CRI identify him?” {¶ 13} Defense counsel again objected to this line of questioning, and the trial court again sustained the objection. {¶ 14} Only Detective Hall observed the hand-to-hand transaction. Detective Longstreet, who did not see the transaction, testified that he saw the suspect turn the corner after the transaction was completed, but then lost sight of him.

Neither the drugs nor the marked “buy money” was discovered on Person when he was searched upon his arrest. {¶ 15} Person did not take the stand in his own defense; however, Michael Turner and Kimberly Tate, two Continental Street residents, testified for the defense. Both testified that they saw a male from the neighborhood, who was known as “G,” take Person’s bike and head north on East 116th Street. They then saw G return and ride the bicycle behind the house. Less than a minute later, they saw Person ride that same bike down the driveway, and they then observed his arrest.

Although at trial the police officers could not recollect any description of the seller, Turner and Tate testified that both G and Person were tall, slim African-American men dressed in a white t-shirt and jeans, which both Turner and Tate described as the “uniform” of the neighborhood. {¶ 16} During trial, the prosecutor asked Detective Roddy, who arrested Person: {¶ 17} “Q. Did you read him his Miranda rights? {¶ 18} “A. Yes. {¶ 19} “Q. Did he make my (sic) statements? {¶ 20} “A. No.” {¶ 21} The defense objected, but the court made no ruling.

Defense counsel requested that the court give no curative instruction, alleging that any such instruction would only serve to highlight the error, rather than ameliorate it. The court, nonetheless, gave an instruction on defendant’s right to maintain his silence. {¶ 22} It is mainly in light of these colloquies that Person seeks relief from this court. We agree with Person that significant errors and prosecutorial misconduct in this case deprived him of his right to a fair trial. {¶ 23} The facts in this case are disputed.

On one hand, we have Detective Hall, who saw the hand-to-hand transaction from some distance away but absolutely identified Person as the seller of the drugs. On the other hand, within minutes of the transaction, Person is arrested, and two neighbors, neither shown to have any reason to prevaricate, indicate that minutes before the arrest, another man — “G”—was on this same bicycle, dressed similarly to appellant.

Corroborating their testimony is the fact that neither drugs nor “buy money” was found on Person when he was arrested. {¶ 24} The neighbors’ testimony should not be construed as proof that the jury lost its way in rendering a verdict of guilty, but rather utilized to place in context the prosecutor’s inappropriate comment on Person’s assertion of his Miranda rights and, further, his impermissible attempts to get the CRTs alleged identification of Person before the jury without any testimony from CRI.

In short, that which standing alone might be insufficient to cause reversal, when viewed in the context of other attempts by the prosecutor to elicit inadmissible testimony, could well have been the breakpoint between a guilty and a not-guilty verdict. {¶ 25} If the defense case is to be believed, Person had just begun riding the bicycle before he was arrested and was mistaken by the police for the drug seller. Under such circumstances, Person’s assertion of his Fifth Amendment rights at arrest could readily cause jury suspicion as to his innocence.

What person, innocently riding his bicycle and immediately accosted by police and accused of selling drugs to an undercover informant, would not immediately protest his innocence and explain his whereabouts in the minutes proceeding the arrest? That is obviously the inference suggested by the prosecutor’s question to Detective Roddy about Person’s failure to make a statement. If that were not the inference desired, why then ask the question at all?

Detective Roddy’s answer that Person failed to make a statement after he was read his Miranda rights has no possible relevance save the inference that Person did not speak because he was guilty, or had no innocent explanation for his behavior. {¶ 26} The same is true for the prosecutor’s questions concerning the identification of Person by the CRI. The state went to great lengths to resist identification of the CRI — including but not limited to refusing to produce his/her name in discovery and not producing him at trial.

Once in trial, however, the prosecution realized that the only person who got a close look at the seller was the CRI. The state’s attempt to elicit his testimony in his absence was impermissibly attempted not once — -but twice.

While timely objections prevented the answer both times, the impression undoubtedly and indelibly imprinted upon the jury was that the CRI would indeed identify the defendant — if called. {¶ 27} We cannot agree, as argued by the state, that the prosecutor’s question regarding Person’s silence after he was given his Miranda rights was not error because it was an “isolated incident,” and the trial court gave a curative instruction. The prosecutor’s impermissible question was error because, in context, it can only be construed as evidentiary use of Person’s silence as evidence of his guilt.

There simply was no other reason for asking the question. {¶ 28} In Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, the United States Supreme Court noted that “Miranda warnings contain an implied promise, rooted in the Constitution, that ‘silence will carry no penalty.’ ” Wainwright v. Greenfield (1986), 474 U.S. 284, 295, 106 S.Ct. 634, 88 L.Ed.2d 623.

Thus, “what is impermissible is the evidentiary use of an individual’s exercise of his constitutional rights after the State’s assurance that the invocation of those rights will not be penalized.” Id. {¶ 29} This court has likewise recognized that “admitting evidence of post-arrest silence in a manner that implicitly suggests a defendant’s guilt is impermissible.” State v. Gooden, Cuyahoga App. No. 82621, 2004-Ohio-2699, 2004 WL 1172074, at ¶ 54. “The Miranda decision precludes the substantive use of a defendant’s silence during police interrogation to prove his guilt.” Id., citing State v.

Correa (May 15, 1997), Cuyahoga App. No. 70744, 1997 WL 253173. {¶ 30} Here, it is apparent that the prosecutor elicited inadmissible testimony from the state’s police witnesses that Person remained silent after the Miranda warnings were given in order to support an inference that he was guilty.

Although the prosecutor argues that the question and answer were “isolated” and, therefore, not prejudicial, we do not agree on the effect of the question and answer, especially in light of the prosecutor’s other improper questions regarding whether the CRI had identified Person, despite the trial court’s ruling that such testimony was objectionable. {¶ 31} Moreover, although this court has held that an isolated reference to a defendant’s postarrest silence does not constitute reversible error, see State v. Ervin, Cuyahoga App.

No. 80473, 2002-Ohio-4093, 2002 WL 1824977, we made that ruling in the context of other overwhelming evidence against the defendant. Likewise, in cases citing Ervin and its apparent “single isolated comment rule,” we have found the state’s reference to the defendant’s postarrest silence to be harmless error, in light of other overwhelming evidence in the record. See, e.g., State v. Sims, Cuyahoga App.

No. 84090, 2005-Ohio-1978, 2005 WL 984499, at ¶ 55 (“There is moreover an independent and substantive basis to support the trial court’s verdict of guilty beyond a reasonable doubt”); Gooden, 2004-Ohio-2699, 2004 WL 1172074, at ¶ 55 (“The remaining evidence presented * * * comprised overwhelming proof of Gooden’s guilt”); State v. Dowdell, Cuyahoga App. No. 83829, 2004-Ohio-5487, 2004 WL 2306678, at ¶ 29 (“There is, moreover, an independent and substantive basis to support the trial court’s guilty verdict”); State v. Thomas, Cuyahoga App.

No. 78570, 2002-Ohio-4026, 2002 WL 1821919 (single reference to the defendant’s postarrest silence was not reversible error because “had the jury never heard the impermissible reference * * *, it would still have been justified in finding Thomas guilty * * * ”).

Thus, Ervin should not be read or understood to stand for the proposition that the state gets one free constitutional violation of a defendant’s Fifth Amendment right not to be compelled to be a witness against himself. {¶ 32} ‘Where evidence has been improperly admitted in derogation of a criminal defendant’s constitutional rights, the admission is harmless ‘beyond a reasonable doubt’ if the remaining evidence alone comprises ‘overwhelming’ proof of defendant’s guilt.” State v. Williams (1983), 6 Ohio St.3d 281, 6 OBR 345, 452 N.E.2d 1323, quoting Harrington v.

California (1969), 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284. {¶ 33} Because the evidence in this case is equivocal and does not provide “overwhelming” proof of Person’s guilt, the prosecutor’s conduct in eliciting testimony regarding Person’s postarrest silence cannot be construed as harmless error. {¶ 34} The prosecutor’s questions about the CRI’s alleged identification of Person are similarly offensive. As outlined above, the prosecutor twice asked questions of the state’s witnesses regarding whether the CRI, who did not testify, had identified Person at the scene as the person who sold him the drugs.

In one instance, the officer answered in the affirmative before the objection was sustained; in the second instance, the objection to the same question was sustained before the answer was given. {¶ 35} We view this objectionable questioning by the prosecutor, coupled with the prosecutor’s question regarding Person’s postarrest silence, as misconduct that prevented Person from receiving a fair trial. It is important to note that the prosecutor continued to ask the same question despite the trial court’s ruling as to its inadmissibility.

And lest there be any doubt that the jury was confused as to whether the CRI had identified Person as the drug seller, during the deliberation phase of the trial, the jury submitted the following question in written form to the court: ‘We would like to revisit the testimony of officer Hall’s remark that he drove by during the cold stand, regarding who made identification of Mr. Person.

Was it officer Hall who made the ID, or both Officer Hall and the CRI? ” (Emphasis added.) The jury’s question is a clear indication that the prosecutor’s improper questions about the CRI’s identification of Person affected the jury.

It was considering evidence of the CRI identification, even though there was no such evidence before them, and, therefore, the trial court should have declared a mistrial. {¶ 36} In light of these significant errors, we sustain appellant’s fourth assignment of error and hold that the cumulative effect of the errors, coupled with the fact that both errors involved prosecutorial misconduct in an otherwise questionable case, did in fact deprive Person of his right to a fair trial.

Accordingly, we reverse and remand for a new trial. {¶ 37} In light of our resolution of this assignment of error, appellant’s first, second, and third assignments of error are moot, and therefore we need not consider them. App.R. 12(A)(1)(c). Judgment reversed and cause remanded. Karpinski, P.J., concurs. Kilbane, J., dissents.