Chillicothe v. Woodfork

HARSHA, J., dissenting

I respectfully dissent. Initially, I am not totally convinced that the trial court's ruling represents an "unreasonable" limitation of the defendant's right to cross-examine the victim under State v. Hannah (1978), 54 Ohio St. 2d 84. As the United States Supreme Court stated in Delaware v. Van Arsdale (1986), 475 U.S. 673 at p. 679:

"It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of á prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant. And as we observed earlier this Term, 'the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' Delaware v. Fensterer, 474 US 15, 20, 88 L Ed 2d 15, 106 S Ct. 292 (1985) (per curiam) (emphasis in original).

The purpose of cross-examining the victim concerning her subsequent allegations of theft of her purse by appellant was to show either:

(1) the victim had a motive to lie and/or prejudice and bias against the defendant or (2) that the police did not believe her story since they did not bring additional charges.

As to the first purpose, the record is replete with evidence that these two women disliked each other, called each other names, and fought over their respective relationships with Marty Woodfork. Accordingly, one would have to charge the jury with incredible naivete to find that the jury needed additional evidence of bias, prejudice, or motive to lie on the victim's part in order to properly judge her .credibility.

With respect to the second purpose, I remain unconvinced that theft accusations by the victim and the resulting inaction by officials is clearly probative of truthfulness or untruthfulness on her part. There are many reasons beyond the victim's credibility for lack of legal action by the authorities Accordingly, the lack of additional prosecution is neither clearly relevant nor probative of Wickline's veracity in this case

Since the proposed cross-examination was only "marginally relevant" and had a high propensity to confuse the issues or mislead the jury, see Evid. R. 403(A), the trial court's ruling was not an unreasonable limitation upon the Confrontation Clause. Furthermore, evidence of specific instances of conduct for the purposes of attacking witness credibility may not be proved by extrinsic evidence, except as provided by Evid. R. 609, which has no application here. This type of attack on witness credibility may be inquired into on cross-examination, in the discretion of the trial court, only if clearly probative of truthfulness or untruthfulness As indicated above, based upon the record in this case, I do not believe the victim's subsequent filing of a theft report and resulting failure by the authorities to file additional charges is clearly probative of Wickline's truthfulness Assuming however that it was error, on the record in this case I am not persuaded that a reversal is required. While I acknowledge that the right to confrontation and cross-examination is constitutional in nature, and accordingly, the *172error must be viewed as being harmless beyond a reasonable doubt under Chapman v. California (1967), 386 U.S. 18, it is my opinion that this standard is satisfied here. See, Van Arsdale, supra.