ASSIGNMENT OF ERROR SIX
"The [*80] trial court erred in overruling the defendant David Burch's motion for a mistrial based upon the prosecutor's improper comment during closing argument upon the defendant David Burch's failure to testify in his own behalf."
The prosecutor made this statement during final argument:
"***
"David Burch supplied heroin in Thailand in 1972 to Alma Jones. Alma Jones came up here and testified, and her testimony, ladies and gentlemen, is uncontradicted, no one came in and said Alma Jones was not telling the truth. No one. No one.
"* * *.
This is more than a statement to the effect that the state's evidence is uncontradicted or unrefuted. State v. Lockett, 49 Ohio St. 2d 48, 65 (1976). But see, Lockett v. Ohio, 438 U.S. 586, 595 (1978). The jury's at 5b4 tention is specifically drawn to Jones' testimony. The only person besides Burch who could contradict the testimony of Jones is Linda Kirby, who is also named in count five of the indictment. Moreover, the jury was made aware by the prosecution that Kirby's whereabouts were unknown.
Our Supreme Court has indicated that indirect, as well as direct comments, on the defendant's failure to testify are forbidden and has adopted [*81] a test to determine whether such indirect comment has occurred. State v. Cooper, 52 Ohio St. 2d 163, 173 (1977). See, State v. Mozik, Summit No. 9010 (9th Dist. Ct. App., January 31, 1979). The test as set forth in Cooper, supra, at 173 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.' Knowles v. United States (C.A. 10, 1955), 224 F. 2d 168, 170."
The instant statement constitutes a comment on David Burch's failure to testify. Dubose v. State, 531 S.W. 2d 330 (Tex. Cr. App. 1975); United States v. Flannery, 451 F. 2d 880 (1st Cir. 1971). There was, however, no objection until the next day of trial, when Burch moved for a mistrial. We believe the prosecutor's error could have been cured by immediate instruction to disregard the statement and an admonishment of the prosecutor. Therefore, the comment did not deprive Burch of a fair trial. State v a89 . Wade, 53 Ohio St. 2d 182 (1978), first paragraph of the syllabus; State v. DeNicola, 163 Ohio St. 140 (1955), third paragraph of the syllabus; State v. Cloud, 112 Ohio App. 208, [*82] 217 (1960).
ASSIGNMENT OF ERROR SEVEN
"The trial court erred in failing to allow the defendants to inspect notes used by Shirley Williams a witness, to refresh her recollection as to her testimony prior to coming to court. This was prejudicial error."
State witness Shirley Williams was interviewed by Akron police lieutenant Lower in 1973. Lower prepared a confidential police report based upon the interview with Williams. The confidential was apparently updated prior to trial when Williams again spoke with Lower. Williams also reviewed the confidential with one of the prosecutors prior to trial. Williams did not use or have the confidential with her during her testimony. David Burch, among other defendants, requested an inspection of the report. The trial court ruled the report was a nondiscoverable work product. See, State v. Middaugh, Summit No. 7787 (9th Dist. Ct. App., November 26, 1975).
Burch argues that a common law right of inspection exists. Case law indicates, however, that no such right exists where the witness does not use the report while testifying. State v. Smith, 50 Ohio App. 2d 183, 201 (1976). See, 56 O. Jur. 2d, Witnesses ยง 291 (1963). There [*83] is no indication that Williams lacked recollection of the events to which she testified without resort to the confidential report and the report was not made by her, but by Lower. Compare, State v. Finley, Cuyahoga No. 27997 (8th Dist. Ct. App., July 13, 1967).
ASSIGNMENT OF ERROR NINE
"The trial court erred in failing to give the defendants requested instruction to the jury from section 2905 of the Ohio Jury Instructions concerning membership and proof of membership in a conspiracy. This was prejudicial error."
We find no error in the portion of the charge objected to by David Burch.
The final pages from the Court records will be published in the next update on Cryptologic, Intercasino, Bill Scott and the heroin ring.
