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Bowden v. Annenberg12/9/2005
COURT: I think Mr. Lawrence is going to interject an objection and I think he's absolutely correct. You're arguing instead of giving your case, what you're going to show. You're arguing now.
{ } "MR. TRIONA: I apologize, Your Honor."
{ } Defense counsel continued his opening statement without further objection. The trial court's admonishment of defense counsel, on its own initiative, and in the presence of the jury, cured any potential for prejudice. Bowden did not request the court to strike the remarks, ask for a curative instruction, or move for a mistrial. Error cannot be predicated on objections that have been sustained by the trial court. See State v. Austin (Dec. 17, 1986), 1st Dist. No. C-860148; see, also, State v. Davie, 80 Ohio St.3d 311, 1997-Ohio-341, 686 N.E.2d 245, at ; State v. Ware, 8th Dist. No. 82644, 2004-Ohio-1791, at . Lottery Tickets, Crystal Balls and Clairvoyance
{ } Perhaps encouraged by the recent trend to reverse defense jury verdicts in medical-malpractice cases on the basis of defense counsel's use of taboo phrases, Bowden next argues that Mr. Triona's references throughout the trial to lottery tickets, clairvoyance, and crystal balls so inflamed the passions of the jury as to deny him a fair trial.
{ } Bowden contends that the misconduct began in voir dire when Mr. Triona asked prospective jurors, "Any of you willing to spend $50,000 on a lottery ticket, or to win $50,000?" He continued, "Would you spend $50,000 on the lottery ticket if you knew the winning numbers before the drawing? Would we all do that? Wouldn't that be a great world?"
{ } Bowden argues that the remarks continued during the cross-examination of one of his two expert witnesses, general surgeon Stuart Battle, M.D. Mr. Triona continued,
{ } "Wouldn't it be great to be clairvoyant in your business?" T.p. 700.
{ } "I mean, it would be particularly great in buying lottery tickets?" T.p. 700.
{ } "And you mention you're not clairvoyant. You do not have a crystal ball?" T.p. 727.
{ } "Nothing in the records that you reviewed suggests that Alan Annenberg has a crystal ball, does it?" T.p. 727.
{ } "Really, though, in this case you reviewed it with a crystal ball, didn't you, when you had those records?" T.p. 727.
{ } "Certainly if it was done in that manner, would you allow you to be sitting up here and be cross-examined knowing the outcome and having the advantage of a crystal ball?" T.p. 713.
Closing Argument
{ } The remarks continued in Mr. Triona's closing argument: "What did Dr. Battle have when he looked at the treatment of Mrs. Bowden that Alan Annenberg didn't have? He had a crystal ball. You all could go get yourself nearly three million dollars if you had a crystal ball because you could buy a lottery ticket knowing what the winning numbers are, or, as Dr. Battle said, it would be great to play the stock market. What was his crystal ball? He knew before he saw the record that Mrs. Bowden was going to die? [T.p. 1481]* * * [Dr. Safa, Bowden's second expert witness,] too, knew Mrs. Bowden had died before he saw these medical records. And I gave you all a break. I didn't get through all those questions I went through with Dr. Battle about the advantages of a crystal ball." T.p. 1494.
Discussion
{ } Bowden argues that the quoted references to lottery tickets, clairvoyance, and crystal balls, in the context of a ten-day jury trial, recorded in over 1300 pages of trial transcript, convinced the jury that Bowden's expert witnesses "had no foundation for their opinions, but instead used some type of magic to formu
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