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Wednesday, January 23, 2013

State of Ohio v. Thomas J. Ricks, Case nos. 2011-1912
Sixth District Court of Appeals (Erie County)

State of Ohio v. Darius Clark, Case no. 2012-0215
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Robert L. Smith, Jr., Case no. 2012-0239
Tenth District Court of Appeals (Franklin County)

Shaun Armstrong v. John R. Jurgenson Co. et al., Case no. 2012-0244
Second District Court of Appeals (Clark County)


When Co-Defendant Does Not Testify At Trial, May Police Testify About His Statements Incriminating Other Defendant?

Where State Claims Officer’s Testimony Offered to Explain Investigation

State of Ohio v. Thomas J. Ricks, Case nos. 2011-1912
Sixth District Court of Appeals (Erie County)

ISSUE: When two co-defendants who are accused of jointly committing a crime are tried separately, and one co-defendant does not testify at the other’s trial, does the “confrontation clause” of the U.S. Constitution prohibit the state from presenting testimony by a police officer that recounts incriminating statements about the defendant that were made to the officer by the non-testifying co-defendant if the court instructs jurors not to consider the incriminating statements as evidence of the defendant’s guilt, but only as an explanation of the police’s actions while investigating the crime?

BACKGROUND: The Sixth Amendment to the U.S. Constitution provides that in all criminal prosecutions, a person accused of a crime has the right to confront witnesses who provide evidence against him. In general, this “confrontation clause” requires that when a person is the source of information that the state wants to present to a judge or jury as evidence of a defendant’s guilt, that person must appear in court to give testimony under oath and face cross-examination by the defendant’s attorney.

Consistent with this right of confrontation, Ohio’s rules of evidence for criminal proceedings prohibit, with certain exceptions, the admission at trial of “hearsay” testimony. Hearsay is testimony by a witness who does not have firsthand knowledge of an asserted fact, but who recounts statements that were made by another person as proof of that fact.  (For example, the state cannot prove that Person A stabbed Person B by presenting the testimony of a person who did not personally witness the stabbing, but who repeats what he or she was told about the crime by a non-testifying third party.)

In this case two Michigan residents, Aaron Gipson and Thomas Ricks, were convicted of the drug-related robbery and murder of Calvin Harper in Harper’s apartment in Sandusky, Ohio in March 2008. Gipson, who knew Harper and members of Harper’s family, was interviewed by police at his home in Canton, Michigan shortly after the crime, based on information that Gipson and another man identified by witnesses only as “Peanut” had been in Sandusky on the day before the murder and had played cards with Harper’s sister and another woman.  

Gipson told Canton police officer Michael Steckel that he knew the person who had been with him in Sandusky only as Peanut, but that he knew where Peanut was staying. Gipson accompanied police to a residence on the west side of Detroit and identified Ricks, who was standing on the sidewalk  in front of the house, as Peanut. Officers later discovered Ricks’ real name, and several weeks later located him in jail in Atlanta, Georgia for an unrelated offense.  A photo of Ricks was obtained and shown to Gipson, and to Harper’s sister and two other women who had seen Peanut in Sandusky. All identified Ricks’ photo as the person they knew as Peanut.

Based on evidence obtained during the ensuing police investigation, including cell phone records showing that Gipson had returned to Sandusky on the day of the killing and made calls from the area of Harper’s residence, Gipson and Ricks were both indicted for aggravated robbery, aggravated murder and other, drug-related, charges.  The defendants, who denied any involvement, opposed the state’s motion to consolidate their cases and were tried separately.

At Ricks’ trial, the state did not call Gipson as a prosecution witness. Over repeated objections by Ricks’ attorneys, the prosecutor elicited testimony by Officer Steckel regarding his questioning of Gipson and Gipson’s identification of Ricks as the person who had traveled to Sandusky with Gipson the day before Harper was murdered. The trial judge instructed jurors that they should not consider Steckel’s testimony about what Gipson told him as proof that Ricks was, in fact, the person
identified as Peanut, but should only consider Steckel’s testimony as an aid to understanding why the police took the various steps they took during their investigation of the crime.

Ricks was found guilty of aggravated murder and aggravated robbery and other offenses, and was sentenced to an aggregate prison term of life with no possibility of parole plus 26 years.

He appealed his convictions and sentence. Among other assignments of error, Ricks argued that the trial court had violated his rights under the confrontation clause by allowing the state to establish critical evidence against him (i.e., Gipson’s identification of Ricks as Peanut) by means of hearsay testimony in which Steckel recounted what Gipson said to him, rather than requiring the state to call Gipson as a witness to establish that identification, which would allow defense counsel to challenge his motives and the reliability of his testimony through cross-examination.

The Sixth District Court of Appeals vacated Ricks’ convictions on two drug trafficking counts based on insufficiency of the evidence supporting those charges, and remanded those counts for resentencing. However, the appellate panel upheld Ricks’ convictions for aggravated murder and aggravated robbery, and overruled his assignment of error based on the confrontation clause. In a 2-1 majority decision, the court of appeals cited prior decisions interpreting the hearsay rule, including State v. Blevins (1987), in which Ohio courts have held that a police officer’s testimony recounting inculpatory out-of-court statements about a defendant by a co-defendant was not barred as hearsay as long as 1) the co-defendant’s  statements were offered not to prove the truth of the matter asserted, but only to explain the conduct of a police investigation, and 2) the court instructed the jury to limit its consideration of the co-defendant’s statements accordingly.

Ricks sought and was granted Supreme Court review of the Sixth District’s holding that Steckel’s testimony recounting Gipson’s out-of-court statements was admissible under the confrontation clause.

Attorneys for Ricks assert that, contrary to the trial court’s jury instruction and the court of appeals’ decision, there was no need for the state to elicit detailed testimony by Officer Steckel about what Gipson said to him in order to help the jury understand the police investigation.  They suggest that the state’s real purpose for eliciting Steckel’s second-hand testimony about what Gipson said to him was to inform the jury that Gipson had identified Ricks as the person who was with him in Sandusky the day before Harper was killed without calling Gipson as a witness for the state, which would expose Gipson’s statement to cross examination that would challenge his credibility and highlight Gipson’s self-interest in deflecting blame on another.

They point to recent U.S. Supreme Court decisions that have placed increased emphasis on defendants’ right to confront the witnesses and evidence presented against them. They urge the court to clarify in its ruling in this case the difference  between allowing police to make  limited reference to out-of-court statements when that is genuinely necessary to explain their investigation, and allowing the state to introduce substantive incriminating information through the deliberate tactic of having an officer recount otherwise inadmissible out-of-court statements by persons who don’t testify at trial.

Attorneys for the state urge the court to affirm the decision of the Sixth District, which they say correctly found that Officer Steckel’s recounting of Gipson’s identification of Ricks as Peanut was not inadmissible as hearsay under Blevins and subsequent court decisions,because it was offered to explain why the police pursued Ricks as a suspect and ultimately arrested him as a participant in the Harper robbery and murder. They also urge affirmance of the Sixth District’s conclusion that the trial judge in Ricks’ case gave a satisfactory corrective instruction to the jury by directing jurors not to consider Steckel’s testimony in determining whether, in light of other evidence in the case, they believed Ricks was the man who was with Gipson immediately prior to the crime.

Contacts
Representing the state and Erie County prosecutor’s office: Mary A. Barylski, 419.627.7697

Representing Thomas Ricks: Kristopher A. Haines, 614.466.5394

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Is Child’s Disclosure of Abuse to Teacher a ‘Testimonial Statement’ That May Not Be Recounted by Teacher at Trial?

When Child Is Found Incompetent to Testify, Be Cross-Examined in Court

State of Ohio v. Darius Clark, Case no. 2012-0215
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: When a child with visible injuries responds to questions posed by a teacher about those injuries by alleging that they were caused by physical abuse, and identifies the abuser, if the child is found incompetent to testify in a criminal trial of the alleged abuser, does the confrontation clause of the U.S. Constitution bar the admission of “hearsay” trial testimony by the teacher in which she recounts the child’s statements identifying the abuser?

BACKGROUND: The Sixth Amendment to the U.S. Constitution provides that in all criminal prosecutions, a person accused of a crime has the right to confront witnesses who provide evidence against him. In general, this “confrontation clause” requires that when a person is the source of information that the state wants to present to a judge or jury as evidence of a defendant’s guilt, that person must appear in court to give testimony under oath and face cross-examination by the defendant’s attorney.

Consistent with this right of confrontation, Ohio’s rules of evidence for criminal proceedings prohibit, with certain exceptions, the admission at trial of “hearsay” testimony. Hearsay is testimony by a witness who does not have firsthand knowledge of an asserted fact, but who recounts statements that were made by another person as proof of that fact.  (For example, the state cannot prove that Person A stabbed Person B by presenting the testimony of a person who did not personally witness the stabbing, but who repeats what he or she was told about the crime by a non-testifying third party.)

In this case, two Cleveland preschool teachers noticed welt marks on the face of one of their students, a three-year-old boy identified by the initials L.P. In response to their inquiries about “what happened,” L.P. first responded that he had fallen, then said he didn’t know how he had been injured, and then said “Dee did it.”  “Dee” was the name by which L.P. referred to Darius Clark, the live-in boyfriend of his mother, Taheim Traywick. Traywick periodically left L.P. and his 22-month-old sister, A.T., in Clark’s care while she traveled to another city to earn money by working as a prostitute. 

The teachers took T.S. to their supervisor’s office and called a local child-abuse hotline. The following day a social worker came to the home of Clark’s mother, where L.P. and A.T. were being watched by other relatives, and transported the children to a hospital.  The doctor who examined them found that L.P. had multiple bruises at different stages of healing and marks on his skin consistent with having been whipped with a belt on more than one occasion. A.T. was found to have two black eyes, multiple bruises and burn marks on different parts of her body, and sores near her hairline consistent with having had braids ripped out of her head.

Clark and Traywick were each charged with five counts of felonious assault, two counts of child endangerment and two counts of domestic violence. Traywick entered guilty pleas to child endangerment and permitting child abuse, and agreed to testify against Clark. During pretrial proceedings, the court conducted a hearing at which it determined that L.P., who was then four years old, was not competent to testify at trial about the alleged incidents of abuse. Invoking his rights under the confrontation clause, Clark entered a motion asking the court to bar the state from introducing at trial any “hearsay” testimony by L.P.’s preschool teachers or other adults recounting statements  L.P. had made to them about his injuries. The trial court denied the motion to exclude such testimony. 

At trial, the jury heard testimony from both preschool teachers and from five other adults, including a police detective, two social workers and L.P.’s grandmother and great aunt, in which each witness recounted statements L.P. had made to them indicating that Clark had caused the child’s injuries. The jury found Clark guilty on all charges except one of the felonious assault counts. The court sentenced him to an aggregate prison term of 28 years.

Clark appealed, asserting multiple errors by the trial court including its failure to grant his motion to exclude testimony by third parties relating L.P.’s out-of-court statements. The Eighth District Court of Appeals vacated Clark’s convictions and sentence and remanded the case for a new trial.  In a 3-0 ruling, the court of appeals held that L.P.’s statements to the teachers and other adults had been solicited for the primary purpose of obtaining information about and aiding in the prosecution of suspected criminal conduct, and were therefore testimonial statements that could not be admitted via hearsay testimony in a trial where the defendant was unable to confront and cross-examine the person who was the actual source of the statements.

The state sought Supreme Court review of the Eighth District’s decision. The court agreed to hear arguments only on the issue of whether a student’s statements to a teacher disclosing abuse are “testimonial,” and therefore render trial testimony about those statements by the teacher inadmissible under the confrontation clause when the child cannot be cross-examined by the defendant.

Arguing for the state, attorneys from the Cuyahoga County prosecutor’s office point out that teachers have a legal and professional duty to protect their students from current and potential future injury, and assert that the questions L.P. was asked by his teachers in this case were for the primary purpose of learning how he had been injured and protecting him from future injury, not as an effort to gain evidence of criminal conduct for later use in a trial. 

They point to prior decisions in which the Supreme Court of Ohio has held that statements made by children to medical personnel providing diagnosis and treatment or to police officers responding to an emergency situation were non-testimonial, and therefore third-party testimony about those statements was admissible, because the primary purpose for which those statements were obtained was not to use them as evidence of criminal conduct. They also cite decisions from several other states holding that a child’s statements to a teacher or other professional who is required to report suspected abuse to the police were not rendered “automatically” testimonial by that fact, but were subject to review on a case-by-case basis to determine the primary purpose of the interview. They urge the court to hold that the open-ended  questioning conducted by the teachers in this case, and the statements elicited by those questions, were similar to statements made by a child to “first responder” in a medical emergency, and therefore were non-testimonial in nature and admissible at trial through the testimony of a teacher to whom the statements were made.

Attorneys for Clark argue that the statements elicited by L.P.’s teachers in this case were correctly held to be testimonial, and therefore testimony about those statements by the teachers was inadmissible as hearsay, because Ohio teachers are among the professionals who are explicitly required by a state law (R.C. 2151.421) to report any information they obtain regarding suspected physical or sexual abuse of a child to law enforcement authorities. Because there is no set of circumstances under which an Ohio teacher may lawfully fail to report for potential prosecution a child’s statements alleging abuse, they assert, there is no situation in which such statements are non-testimonial, and thus there is no basis for a court to find that third-party testimony by a teacher about the statement of a non-testifying child is admissible.

Contacts
Representing the state and Cuyahoga County prosecutor’s office: Mark Mahoney, 216.443.7800

Representing Darius Clark: John T. Martin, 216.443.3675

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Does Conviction for Violating Protection Order Require Showing That Order Was Delivered to Defendant Prior to Offense?

State of Ohio v. Robert L. Smith, Jr., Case no. 2012-0239
Tenth District Court of Appeals (Franklin County)

ISSUE:  In order to convict a defendant of violating a civil protection order in violation of R.C. 2919.27,  must the state prove that a copy of the protection order was delivered to the defendant prior to his commission of the conduct that is the basis for the charge?

BACKGROUND:  On April 12, 2010, Shasta Pickens of Columbus obtained a temporary restraining order from the Franklin County Court of Common Pleas that prohibited her former boyfriend, Robert Smith, from coming within 500 feet of her residence or initiating any contact with her.  The order was issued on an “ex parte” basis (based only on information provided by the party seeking protection, without an immediate opportunity for the person being restrained to oppose it).

On April 16, Smith came to Pickens’ home, and she showed him a copy of the order and told him that under its terms he “was not allowed to be around her.” Pickens testified that Smith expressed anger but left.  The next day, April 17, she heard a loud noise in her basement and found that Smith had entered her home through a basement window and was coming up the stairs toward her.

Pickens testified that Smith placed her in a choke hold and the two engaged in a physical struggle that lasted several minutes until Pickens’ son and a friend came home and Smith released her.  Pickens left the room and dialed 911. Officers arrived two or three minutes after the call and caught Smith attempting to exit though the basement window through which he had entered. He fought with police for several minutes before being subdued with a Taser and arrested.

Smith was charged with aggravated burglary, violation of a protection order, and resisting arrest.  He was found guilty on all three counts and sentenced to an aggregate term of seven years in prison.

On appeal, Smith asserted among other claims that his conviction for violating a protection order must be vacated because he had not been served with a copy of the order, as required by law, prior to the events of April 17 that were the basis for his arrest. The Tenth District Court of Appeals acknowledged that a copy of the order had not been delivered to Smith prior to his arrest on April 17, and that the law authorizing protective orders requires the court to deliver a copy to the respondent (person being restrained).  However, the court affirmed Smith’s conviction based on its finding that in enacting R.C. 2919.27, the legislature did not make the defendant’s receipt of a copy of the order an element that the state must show in order to prove the crime of violating a protective order.

Smith sought and was granted Supreme Court review of the Tenth District’s ruling.

Attorneys for Smith assert that in order to be criminally enforceable under R.C. 2919.27, a protective order must have been “issued … pursuant to” one of several statutes that set forth grounds for a court to grant such orders.  They point out that each of those underlying statutes includes a mandatory requirement that the court “shall direct that a copy of the order be delivered to the defendant on the same day that the order is entered.” Based on that requirement, they argue, a protective order granted under any of the enumerated statutes has not been “issued pursuant to” that statute until a copy of the order has been delivered to the respondent.

In this case, they contend, the state acknowledged that Smith had not received a copy of the order prior to his arrest, and Pickens testified only that she had “showed” the document issued by the court to him and told him that it prohibited him from being around her, but did not indicate that she had allowed Smith to read the order, or given him a copy, or even that she had read its content to him.  They urge the court to find that the trial and appellate courts erred in holding that Pickens’ unsupported testimony was sufficient evidence to support Smith’s conviction and prison sentence for violating the terms of a protective order that was granted in an ex parte proceedings from which he was excluded, and that was not delivered to him until after he was arrested for violating it.

Attorneys for the state urge the court to uphold the Tenth District’s decision, which they say correctly held that protective orders like the one in this case are effective, and therefore criminally enforceable, immediately upon being issued, regardless of whether the respondent has yet been served with official notice of the order.  

They argue that the plain language of R.C. 2919.27 includes no requirement that the state must prove that a temporary restraining order was formally served on the respondent in order to obtain a conviction for violating it. They assert that judicially imposing such a requirement would severely undermine the legislature’s intent in authorizing ex parte protection orders, which they say is to immediately bar all contact between a respondent and a person seeking protection in situations where the court has reason to believe that the petitioner is facing an imminent threat of physical harm.

Contacts
Representing the state and Franklin County prosecutor’s office: Sheryl L. Pritchard, 614.525.3555

Representing Robert L. Smith Jr.: Stephen P. Hardwick, 614.466.5394

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To Be Compensable, Must Worker’s Psychological Condition Be ‘Caused By’ a Physical Injury?

Or Merely Arise From Incident In Which That Worker Also Suffered Physical Injury

Shaun Armstrong v. John R. Jurgenson Co. et al., Case no. 2012-0244
Second District Court of Appeals (Clark County)

ISSUE:  When the legislature amended a section of the state’s workers’ compensation law in 2006, did the new language inserted in the statute impose a requirement that a worker may recover benefits for a psychological condition that arises from a workplace accident in which the worker also suffered a physical injury only if the claimant can show that his psychological condition was caused by his physical injury?

BACKGROUND: Prior to the enactment of S.B. 7 in 2006, the Supreme Court of Ohio held in McCrone v. Bank One Corp. (2005) that under the then-current language of R.C. 4123.01(C)(1), state workers’ compensation benefits were awardable for psychological injuries suffered by a worker as the result of a job-related accident only in cases where the accident that caused the psychological injury also resulted in some contemporaneous physical injury.

The statutory language interpreted by the McCrone court was written in the form of an exclusion.  It stated that the definition of an “injury” eligible for benefits excluded “psychiatric conditions except where the conditions have arisen from an injury or occupational disease.”

When it enacted S.B. 7, the legislature amended this language to exclude from eligibility for benefits “psychiatric conditions except where the claimant’s psychiatric conditions have arisen from an injury or disease sustained by that claimant.”

This case involves a workers’ compensation claim filed in 2009 by Shaun Armstrong of Dayton for physical and psychological injuries he suffered as the result of a traffic accident in which he was involved while working on a highway construction crew for the John R. Jurgensen Company. Armstrong suffered back, neck, and shoulder injuries when a loaded dump truck he was operating was struck at high speed by a van approaching from the rear. The van ran under the bed of the dump truck. 

After Armstrong, who had watched the van approaching through his outside mirror but was unable to avoid the crash, called 911, he exited his truck and observed the wreckage of the van and the head and face of the fatally-injured van driver for several minutes until police and medical technicians arrived at the scene.

Armstrong initially filed a workers’ compensation claim only for his physical injuries, but amended his application several weeks later after being diagnosed with post-traumatic stress disorder (PTSD). That diagnosis was based on symptoms including repeated panic attacks suffered by Armstrong when he rode in a car, episodes of depression, trembling and sweating, and recurrent dreams in which he relived the crash in slow motion and saw the crushed van and the face of the dead van driver, and  awoke in a state of severe anxiety. The Bureau of Workers Compensation allowed Armstrong’s claims for both his physical injuries and PTSD.

Jurgensen appealed the allowance of Armstrong’s PTSD claim. The bureau’s award was affirmed by the Industrial Commission. Jurgensen appealed that ruling to the Clark County Court of Common Pleas. 

After a bench trial in which both Armstrong and the employer presented testimony by psychiatric experts, the judge held that Armstrong was not entitled to workers’ compensation benefits for his PTSD condition. The court based its ruling on a finding that the post-S.B. 7 version of R.C. 4123.01(C)(1) now excludes benefits for a psychological condition unless that condition was caused by the claimant’s physical injuries, and concluded that coverage for Armstrong’s PTSD was excluded because the weight of the trial testimony showed that his psychiatric symptoms did not arise from his own back and shoulder injuries, but rather from his memories of the crash itself and his observation of the fatal injuries suffered by the other driver.

In a 2-1 majority opinion, the Second District Court of Appeals agreed with the trial court’s interpretation of the amended statute, and affirmed its ruling denying Armstrong benefits for the PTSD condition. Armstrong sought and was granted Supreme Court review of the Second District’s decision.

Attorneys for Armstrong argue that the trial and appellate court decisions in this case have misinterpreted the intent and the plain meaning of the wording added to R.C. 4123.01(C)(1) in 2006.

They argue that the legislature amended the statute in response to the Ohio Supreme Court’s 2001 decision in Bailey v. Republic Milled Steels Inc.  In Bailey, they say, the court held that the pre-S.B. 7 statutory language that allowed claims for psychological conditions “where the conditions have arisen from an injury or occupational disease” was so broad that it allowed workers’ compensation benefits  to be awarded to persons who did not suffer any work-related physical injury themselves, but who claimed to have suffered psychological injury by observing a workplace accident in which another person was physically injured.  In order to make it clear that these kinds of third-party claims should not be granted, they assert, the legislature amended the statute in 2006 to specify that a claimant’s petition for benefits may be granted only for “psychiatric conditions (that) have arisen from an injury or disease sustained by that claimant.”

They contend that there is no difference between the pre and post-S.B. 7 versions of the statute regarding the relationship between a claimant’s physical and psychological conditions, because both versions use exactly the same words (“have arisen out of an injury”) to describe that relationship. They point out that it was this identical language that the Supreme Court analyzed in 2005, when it held in McCrone that a psychiatric condition “arises out of an injury” when the same accident that triggered the psychological condition also caused a contemporaneous physical injury to the claimant.  They urge the court to reverse the lower court rulings in this case and reaffirm its holding in McCrone that psychological conditions like Armstrong’s PTSD are compensable where the psychological condition arises from an event that also caused physical injury to the claimant.

Attorneys for Jurgensen urge the court to affirm the rulings of the lower courts, which they say correctly interpreted the post-S.B. 7 version of the statute as allowing an award for a psychiatric condition only where the claimant makes a showing that his psychological condition “arose out of an injury ... sustained by that claimant.” They point out that in this case, the expert witnesses both testified that Armstrong’s PTSD symptoms were not primarily caused by the physical injuries he suffered to his neck, back and shoulder during the crash, but instead arose from his disturbing recall of the accident itself and having observed the other driver’s gruesome injuries. While they do not contest that Armstrong suffers from  PTSD, or that his condition is a consequence of a work-related accident, they assert that his condition does not fall within the narrow range of psychiatric injuries for which the legislature has authorized payment of workers’ compensation benefits.

Contacts
Representing Shaun Armstrong: Jeffrey Harris, 513.891.3270

Representing John R. Jurgensen Co.: Corey V. Cronagle, 614.462.2281

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.