State v. Ricks

Yarbrough, Judge,

concurring in part and dissenting in part.

{¶ 103} I concur in the majority’s opinion and judgment regarding the disposition of the first, second, fifth, and sixth assigned errors. I respectfully dissent, however, regarding the third assigned error. For the reasons that follow, I would find the third assignment well taken and reverse and remand this case for a new trial on the aggravated-murder and aggravated-robbery charges. That disposition would render the fourth and seventh assignments moot. App.R. 12(A)(1)(c).

{¶ 104} The third assignment raises a critical hearsay issue having two components: first, the correct admissibility analysis for certain out-of-court statements not offered for their truth and, second, if the statements are admitted for a nonhearsay purpose, the proponent’s use of those statements during trial. Further, in reviewing the third assignment as a hearsay issue, I find it unnecessary to address appellant’s constitutional arguments under Bruton and its federal and Ohio progeny. It is sufficient to review the disputed statements here under the standards that the Tenth Appellate District currently applies to the class of extrajudicial statements offered to explain police conduct during a criminal investigation. The Bruton issue need not be reached because exclusion follows from a hearsay analysis involving the derivative use of Evid.R. 403(A).

{¶ 105} The core facts are relatively few. The disputed hearsay statements originated from appellant’s nontestifying co-defendant, Gipson. In the course of their murder and robbery investigation, the officers had located and questioned Gipson first. From him they learned about a second suspect involved in the crimes, possibly the shooter, who had traveled with Gipson to Sandusky, Ohio, on the day before the murder. This suspect was known only by his sobriquet, “Peanut.” It was his identity the officers were attempting to ascertain when Gipson accompanied them by car to Detroit.

{¶ 106} At trial, Officer Steckel testified that as they drove along a particular street, Gipson pointed out a residence where Peanut was believed to be. Over objection, Steckel related that as they passed the residence, Gipson pointed to an individual standing in front and stated, “That’s Peanut.” Over further objection, Steckel testified that once back at the police station, Gipson confirmed that appellant was Peanut when shown appellant’s photograph, stating, “That’s him.” In responding to these objections, the prosecutor represented that Gipson’s out-of-court statements were not being offered for their substantive truth (i.e., to prove that appellant was “Peanut”), but merely to explain the officers’ actions in hunting for the second suspect. The trial court overruled the objections, but *818instructed the jury that the purpose of the testimony recounting Gipson’s statements was “to describe this officer and that department’s investigation.” The photograph was later used in a photo array from which three other witnesses identified appellant. These witnesses testified at trial while Gipson did not.

(1) Standard of Review

{¶ 107} The applicable standard for reviewing challenged hearsay is not “abuse of discretion.” While there is discretion to admit or exclude relevant evidence, there is no “discretion” to admit hearsay. State v. Sutorius (1997), 122 Ohio App.3d 1, 7, 701 N.E.2d 1; State v. Sorrels (1991), 71 Ohio App.3d 162, 593 N.E.2d 313. In Sorrels, the First Appellate District delineated the correct standard, stating:

{¶ 108} “[T]he trial court’s decision to admit hearsay is not governed by the test of abuse of discretion, which the Supreme Court applies to instances where the trial court’s evidentiary rulings relate to matters expressly or implicitly within its discretion, as in rulings on relevancy (Evid.R. 402 and 403) or expert testimony (Evid.R. 702). * * * Instead, errors relating to the trial court’s admission of hearsay must be reviewed in light of Evid.R. 103(A) and the standard established in Crim.R. 52(A), providing that such errors are harmless unless the record demonstrates that the errors affected a party’s substantial right.” Id. at 165.

{¶ 109} Thus, on appeal, challenged hearsay is subject to de novo review under the applicable hearsay rule (or its exceptions), rather than the more deferential review employed for discretionary rulings. Id. In State v. Kidder (1987), 32 Ohio St.3d 279, 513 N.E.2d 311, the Ohio Supreme Court established the standard for appellate courts to employ in criminal cases for assessing the effect of improperly admitted hearsay: “In the final analysis, the evidence in favor of conviction, absent the hearsay, must be so overwhelming that the admission of those statements was harmless beyond a reasonable doubt.” Id. at 284.

(2) Analysis

{¶ 110} Evid.R. 801(C) defines “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay is inadmissible under Evid.R. 802, unless a particular statement fails to meet the two-part definition in Evid.R. 801(C), fully satisfies the conditions for nonhearsay prior statements under Evid.R. 801(D)(1) or (2), or falls within one of recognized exceptions under Evid.R. 803 or 804. Under the hearsay rule, Gipson’s disputed statements were functionally indistinguishable from those of the paradigm out-of-court declarant.

*819{¶ 111} Generally, when the facts to be proven at trial and the substantive content of an out-of-court statement coincide, it can be presumed that the proponent is offering the statement for its truth. Facially, therefore, it meets the two-part hearsay definition. If, however, the statement is explicitly offered without reference to its truth, then under Evid.R. 801(C) it is not hearsay. State v. Lewis (1970), 22 Ohio St.2d 125, 132-133, 258 N.E.2d 445; State v. Clay, 187 Ohio App.3d 633, 2010-Ohio-2720, 933 N.E.2d 296, ¶ 27. The statement’s admissibility is then evaluated by the standard of relevancy balanced against unfair prejudice, which is the province of Evid.R. 403(A). See State v. Maurer (1984), 15 Ohio St.3d 239, 263, 473 N.E.2d 768. If germane for some valid nonhearsay purpose (e.g., to prove notice, to show the declarant’s state of mind, etc.), the statement typically would be admissible for that purpose. See, e.g., State v. Rice, 11th Dist. No. 09-A-0034, 2010-Ohio-1638, 2010 WL 1444519, ¶ 22; State v. Hawthorne, 6th Dist. L-03-1120, 2005-Ohio-1553, 2005 WL 736994, ¶ 35-37.

{¶ 112} However, admissibility is not automatic in the case of a “dual use” statement. This is an out-of-court statement having an ostensibly nonsubstantive use, but whose content carries substantive import because it relates to an element of the crime or implicates the defendant directly. This problem frequently arises during a police officer’s testimony relating what he learned from victims or witnesses while investigating a crime. Despite a professed nonhearsay use, if the statement’s content could also cut toward proof of guilt, the risk of prejudicial misuse is great. See State v. Blanton, 184 Ohio App.3d 611, 2009-Ohio-5334, 921 N.E.2d 1103, ¶ 38-39, and State v. Blevins (1987), 36 Ohio App.3d 147, 149-150, 521 N.E.2d 1105.

{¶ 113} This risk was well described by the Tenth Appellate District. “[W]here statements are offered into evidence to explain an officer’s conduct during the course of investigating a crime, such statements are generally not hearsay. * * * There are limits, however, to this general rule because of the great potential for abuse and potential confusion to the trier of fact. * * * For example, a prosecutor may attempt to use a police officer’s testimony regarding his investigative activities as a pretext to introduce highly prejudicial out-of-court statements, while claiming the statements are being offered merely to explain the police officer’s conduct, rather than for their truth.” (Emphasis added.) State v. Humphrey, 10th Dist. No. 07AP-837, 2008-Ohio-6302, 2008 WL 5104775, ¶ 11.

(3) Blevins-Blanton rules for statements offered “to explain police conduct”

{¶ 114} In Blevins, cited by the majority, the Tenth District held that because out-of-court statements purportedly offered to explain police conduct carry the potential for abuse, two requirements must be met before admitting them: first, *820“[t]he conduct to be explained should be relevant, equivocal and contemporaneous with the statements. * * * [Second], such statements must meet the standard of Evid.R. 403(A).” (Emphasis added.) Id., 36 Ohio App.3d at 149, 521 N.E.2d 1105. For extrajudicial statements of this type, the last requirement — assessment under Evid.R. 403(A) — is critical. The trial court must consider whether the risk that the jury will prejudicially misuse the substantive content for its truth exceeds the probative value of the statement for the nonhearsay purpose. Blanton at ¶ 39; Humphrey at ¶ 11; Blevins at 149-150. In other words, the court must look carefully at the statement’s substantive content, find it to be innocuous or, at best, only minimally prejudicial, and conclude that the danger of prejudice does not substantially outweigh the statement’s probative value “to explain conduct.” Evid.R. 403(A). See State v. Sinkfield (Oct. 2, 1998), 2d Dist. No. 16277, 1998 WL 677413. If the court admits the statement after this weighing, an appropriate limiting instruction must be given to the jury. Blevins at 150; Evid.R. 105.1

{¶ 115} The majority cites Blevins for its conclusion that the nonhearsay use of Gipson’s statements to explain the investigating officers’ actions rendered them admissible. However, in Blanton, the Tenth District expanded on Blevins by adding a third requirement for statements offered to explain police conduct, holding:

{¶ 116} “Specifically, the conduct to be explained must be relevant, equivocal, and contemporaneous with the statements.* * * Further, the statements must meet the standard of Evid.R. 403(A). Id. Finally, ‘when the statements connect the accused with the crime charged, they should generally be excluded.’ ” (Emphasis added.) Blanton at ¶ 38-39, quoting Humphrey, 2008-Ohio-6302, 2008 WL 5104775, ¶ 11.

{¶ 117} Carefully comparing the nature of the hearsay statements admitted in Blevins to those excluded in Blanton reveals why the Tenth District adopted a rule of presumptive inadmissibility for statements that “connect the accused with the crime.”

{¶ 118} In Blevins, 36 Ohio App.3d 147, 521 N.E.2d 1105, the court found that the offered statements met the first requirement: “Detective Kerins related at trial that [the hearsay declarant] Dyer made a phone call.” Id. at 149. The *821purpose of the call was to set up a drug buy, with undercover officers posing as the buyers. Thus, “Dyer’s statements in this regard aided in giving definite character to Detective Kerins actions.” Id. As to the second requirement, there was little or no parroting of the content of Dyer’s statements. Their substantive value was, at best, only minimally prejudicial. This led the Tenth District to conclude that “Dyer’s statements neither implicated nor cleared defendant.” He “made a phone call” and “[t]he statements merely described * * * how the detectives met the defendant.” In other words, the second requirement for admitting Dyer’s out-of-court statements — the weighing of relevancy against prejudice under Evid.R. 403(A) — was satisfied. See also State v. Wilson, 5th Dist. No. 09-CA-44, 2010-Ohio-1394, 2010 WL 1234447, ¶ 22 (The statement “offered to explain Mr. Moneypenny’s reason for not letting appellant into the house was not unfairly prejudicial. The statement was offered merely to explain Mr. Moneypenny’s behavior [in keeping him out]”).

{¶ 119} In Blanton, 184 Ohio App.3d 611, 2009-Ohio-5334, 921 N.E.2d 1103, the defendant, a registered sex offender, was convicted of failing to provide notice to the Franklin County Sheriffs Department that he had changed his address from the motel where he previously resided. At trial, instead of calling the motel’s employees to testify from personal knowledge about the time and duration of the defendant’s stay at the motel and about the substance of various motel receipts, the prosecutor presented this information through the hearsay testimony of the investigating officers. Id. at ¶ 41-42. The Blanton court found reversible error in allowing the officers to repeat to the jury the substance of their conversations with motel personnel regarding the defendant’s actions and whereabouts. The out-of-court statements carried substantive import that went beyond the asserted purpose of “explaining conduct”; instead, the contents carried proof of the elements of the crime: “[They] described the fact that [the defendant] had moved and the specific date upon which [he] moved.” Id. at ¶ 43. In assessing the remaining evidence, absent the hearsay, the court found that it was not so overwhelming that the error in admitting the statements was harmless beyond a reasonable doubt. Id. at ¶ 49.

(4) Applying the Blevins-Blanton requirements to the facts sub judice

{¶ 120} When applied here to the police conduct “to be explained,” I find that the first requirement of Blevins was met. Officer Steckel’s initial testimony about his (and the other officers’) actions in seeking to identify a second murder suspect with the street name “Peanut,” was plainly relevant. Blevins, 36 Ohio App.3d at 149, 521 N.E.2d 1105. Without some reference to Gipson’s presence to provide context and meaning, their actions in going to a particular residence in Detroit would appear “equivocal,” in that it might be unclear to the jury why the officers went there in the first place. There is also no question that Gipson’s *822statements, when made, were “contemporaneous” with the investigating conduct and yice versa.

{¶ 121} The critical question pertains instead to Blevins’s second admissibility-proviso requiring an Evid.R. 403(A) assessment: whether repeating the statement’s substantive content to the jury was substantially more prejudicial than probative, because in doing so here, that content connected appellant to the crimes.2 Blanton at ¶ 39. While hearsay may cease to be an issue when the statement of an out-of-court declarant is not offered for its truth, the issue of relevancy balanced against unfair prejudice remains. State v. Maurer, 15 Ohio St.3d at 263, 473 N.E.2d 768.

{¶ 122} Where I believe the majority errs is in its assessment of the substantive content of Gipson’s statements when compared with those at issue in Blevins.

{¶ 123} In this case, testimony had already established that there were two suspects in the robbery and murder of Calvin Harper Jr., one of whom went by the street name “Peanut.” Gipson’s out-of-court statements were statements identifying the second suspect. Unlike the innocuous hearsay in Blevins, Steck-el’s testimony repeating Gipson’s statements went substantially beyond “explaining conduct.” Indeed, the statements directly connected appellant to the crimes, essentially telling the jury that he was Gipson’s partner in robbery and murder.3 But for Gipson’s identification, there would have been no investigatory link to the second criminal actor. It led to the subsequent photo array from which three witnesses (Farris, Harper, and Poole) further identified appellant.

{¶ 124} In applying the Blevins-Blanton rules to this case, the most persuasive precedent on similar facts is State v. Sinkfield (Oct. 2, 1998), 2d Dist. No. 16277, 1998 WL 677413, involving a robbery and murder with multiple victims, in which the Second Appellate District reached the same conclusion I do. There, the disputed hearsay statement was also one of identification, but instead of the *823source being a nontestifying co-defendant, the identification came from an anonymous tip that Dayton police received from a “Crime Stoppers” program. Id. As here, the investigating detective used the tip to assemble a photo array from which two victims identified Sinkfield. At trial, as here, the prosecutor defeated a hearsay objection by asserting that the out-of-court statement comprising the tip was not offered for its truth, but “merely to explain why Detective Pearson included Sinkfield’s photograph in a photo spread shown to [the victims].” Id. In analyzing the substantive content of the statement, the Second District held:

{¶ 125} “[T]he conduct * * * sought to be explained was [Detective Pearson’s] act of placing Sinkfield’s photograph in the photo spread shown to [victim] J.B. Although Detective Pearson’s conduct was relevant and contemporaneous with the out-of-court statement admitted, i.e., that Sinkfield was the other suspect involved in the incident, it is doubtful that Detective Pearson’s act of placing Sinkfield’s photograph in the photo spread was so equivocal or ambiguous that it needed to be explained to the jury through the use of the out-of-court statement. Furthermore, the probative value of the out-of-court statement was substantially outweighed by the danger of unfair prejudice, since the statement identified Sinkfield as the other suspect in the incident [citing Blevins ]. * * * Additionally, there was no reason for the prosecutor to have Detective Pearson explain why he placed Sinkfield’s photograph in the photo spread shown to J.B. Both J.B. and Byrdsong already had testified that Sinkfield was one of the participants in the robbery and shootings, and J.B. related how he had identified Sinkfield from the photo spread shown to him by Detective Pearson on February 5,1996. Thus, it appears that the prosecutor’s primary purpose in eliciting Detective Pearson’s testimony regarding [the content of] the anonymous tip was for the truth of the matter being asserted therein and not to explain Detective Pearson’s actions.* * * This conclusion is further confirmed by the fact that, during his closing argument, the prosecutor tried to use the anonymous tip as substantive proof of Sinkfield’s guilt.” (Emphasis added.) Id.

{¶ 126} I would therefore find that the trial court erred in permitting Officer Steckel, under the guise of “explaining conduct,” to repeat the content of Gipson’s statements identifying appellant. The content of those statements, in my view, was substantially more prejudicial than probative (Blevins) and despite the limiting instruction, they directly connected appellant to the crimes charged {Blanton). Notwithstanding that error, however, the record also reveals a second error that merely compounded the first. It stems from the same prosecutorial conduct cited by the Sinkfield court in the last sentence of the above-quoted passage.

*824(5) Misuse of extrajudicial statements admitted for a nonhearsay purpose

{¶ 127} The trial transcript indicates that in closing argument the prosecutor employed Steckel’s testimony about Gipson’s identification for its substantive truth. Permitting this was the second error. See State v. Kirk, 6th Dist. No. H-09-006, 2010-Ohio-2006, 2010 WL 1818894, ¶ 28; State v. Ramos-Aquino, 10th Dist. No. 09AP-975, 2010-Ohio-2732, 2010 WL 2395776, ¶ 13. Once an out-of-court statement has been admitted for a purpose other than the truth of its content, the content may not be used or relied upon later as substantive proof (i.e., for the truth of what it asserts).

{¶ 128} In State v. Kirk, we admonished this same switch-of-purpose tactic for otherwise inadmissible hearsay and held it to be prosecutorial misconduct. Id. at ¶ 29-33 (“The prosecutor essentially gave the jurors permission to use the hearsay statements as substantive evidence.” Id. at ¶ 33). We found reversible error where the prosecutor, in closing argument, “referred to testimony which she [had] expressly claim[ed] to have offered not for its truth, but to explain subsequent actions taken by the detectives.” Id. at ¶ 29. In Kirk, an investigating detective had been permitted to testify to several out-of-court statements from a confidential informant. The prosecutor elicited these statements purportedly to explain how the detective’s investigation developed. Yet, when their actual use was viewed collectively, the statements “were offered to prove the truth of the matter asserted in them [and demonstrate] appellant’s guilt by connecting him to a known drug dealer.” Id. at ¶ 19-22. Their substantive use during the prosecutor’s closing argument went “far beyond” the limited explanatory purpose for which the statements were initially allowed. Id. This court held:

{¶ 129} “The prosecutor has now relied on extrajudicial statements for their truth — statements which she maintained during trial were not offered for their truth — as evidence that appellant brought the crack cocaine from Akron into Willard. The prosecutor’s remarks were improper and argued beyond the record.” Id. at ¶ 29.4

{¶ 130} In Sinkfield, the Second District reached essentially the same conclusion, holding:

{¶ 131} “[W]hile the trial court admitted [Detective Pearson’s testimony] for a very limited purpose, the prosecutor either did not understand the limited purpose for which the anonymous tip was being admitted or simply chose to *825ignore it. Indeed, later on in his closing argument, the prosecutor brazenly used the anonymous tip for its truth when he told the jury, ‘You know everything J.B. told you about identification is substantiated by information received from Crime Stoppers when he [Pearson] got the photo spread together[.]’ * * * [This is] compelling evidence that the prosecutor’s prima,ry motivation in introducing the testimony regarding the anonymous tip was for its truth, and not to explain Detective Pearson’s subsequent action. * * * In light of the foregoing, the trial court abused its discretion by not excluding as hearsay Detective Pearson’s testimony regarding the anonymous tip received from Crime Stoppers, stating that Sinkfield was the other suspect in the incident.” (Emphasis added.) Id.

{¶ 132} Here, the error in admitting Gipson’s statements through Officer Steckel’s testimony was exacerbated when the prosecutor later improperly referenced them for their truth. The impact of prosecutorial misconduct, however, “must be considered in the light of the whole case” and is not a basis for reversal “unless that conduct deprives the defendant of a fair trial.” Maurer, 15 Ohio St.3d at 266, 473 N.E.2d 768. As well, the impact of the erroneously admitted hearsay is determined by the Kidder standard. Kidder, 32 Ohio St.3d at 284, 513 N.E.2d 311. Where both occur, the standards for improperly admitted hearsay and misconduct are combined to evaluate whether the errors were harmless in view of the remaining evidence. See Kirk, 2010-Ohio-2006, 2010 WL 1818894, at ¶ 34-35.

{¶ 133} As the majority decision details, three witnesses identified appellant from a photo array. One of them (Farris) specifically identified him as the man who mistakenly came to her door shortly before the murder. Although appellant’s first and second assignments challenged as unreliable this identification evidence and the procedures employed to obtain it, I agree they are not well taken for the reasons expressed in the majority decision.

{¶ 134} However, the testimony of these witnesses established only appellant’s presence in the neighborhood on the day of the crimes, whereas the content of Gipson’s statements involved him directly in the crimes. The statements were, moreover, facially incriminating, given the source. In using them in closing argument, the prosecutor was not merely summarizing what the investigating officers did, or where they went, or why. He was suggesting that the jury infer guilt from Gipson having identified appellant as “Peanut,” thereby using Officer Steckel’s testimony about what Gipson said for its truth value, precisely contrary to the basis on which it was admitted.

{¶ 135} In assessing the effect of this testimony, and despite the limiting instruction, I cannot say conclusively that the jury focused only on the other witnesses’ testimony to support the conviction. Indeed, there is more than a reasonable possibility that the erroneously admitted hearsay — and its misuse— *826contributed to appellant’s murder and robbery convictions. Therefore, I would find the third assignment of error well taken, reverse the judgment of conviction on those charges, and remand the case for a new trial consistent with this opinion on the hearsay issue.

. A limiting instruction is particularly critical when the statement’s content might imply guilt. It is the court's instruction that operates to contain the statement to its nonhearsay character and function. See Weissenberger, Ohio Evidence Treatise (2010), Section 801.10. See also State v. Kelly, 8th Dist. No. 85662, 2006-Ohio-5902, 2006 WL 3233895, ¶ 28-29 (limiting instruction to jury creates presumption it was followed). However, as recognized in Blanton, the incriminating content of some out-of-court statements is so inherently prejudicial that no instruction could effectively restrict the jury’s use of them to the explanatory purpose.

. If an officer's investigative steps can be summarized in a way that does not impart to the jury the prejudicial content of the out-of-court statement, then Blevins’ s second requirement, and the third added in Blanton, arguably can be satisfied. It is the officer's behavior that is relevant, not the content of the statement. Otherwise, the statement's substance is being used for its truth, which renders it inadmissible hearsay. As suggested in Blevins, the potential prejudice that arises from repeating the content could be minimized by an officer's foundational testimony that avoids it, e.g., "[during my investigation] I came to know [Mr. Ricks] through my contact with [Mr. Gipson]." See id.., 36 Ohio App.3d at 149, 521 N.E.2d 1105, fn. 1. In Blanton, the Tenth District found that the extrajudicial statements there "were offered to demonstrate appellant’s guilt," because the "repetition of the detailed” contents "undeniably connected [him] with the crime charged.” Id. at ¶ 43.

. To some extent, the trial court's limiting instruction here sought to minimize the risk of prejudicial misuse by the jury, although I note the Tenth District in Blanton was plainly unconvinced by a similar cautionary instruction.

. We also stated in Kirk, 2010-Ohio-2006, 2010 WL 1818894, that "[i]f a statement made by an out-of-court declarant is offered into evidence for a purpose other than asserting the truth of its content, then the content is not substantive evidence. * * * A prosecutor must not later assert those statements for their truth during closing argument.'' (Emphasis added.) Id. at ¶ 28.