Supreme Court Grants Reconsideration in State v. Hood.

Before the changing of the guard at the Ohio Supreme Court, the Cuyahoga County Prosecutor’s office, joined by the Ohio Attorney General as amicus, moved the Court to reconsider its decision in State v. Hood, 2012-Ohio-5559.  In a unanimous 6-0 decision dated December 31, 2012, (Justice McGee Brown’s term had ended and Justice Kennedy did not participate in this case; Justices Stratton and Cupp were still on the Court) authored by Justice Pfeifer (who also wrote the original opinion), the Court changed some of its reasoning, but not the case outcome. Justice Cupp concurred in judgment only.

Hood I.

In the Hood case, the high court upheld a multi-count jury verdict against the defendant in a murder case. The key issue before the Court was the admission of cell phone records used against the defendant at trial. The records were admitted through the testimony of a police detective who was not the custodian of the records or “other qualified witness.” In its original opinion, the Court had held that

  • Properly authenticated cell phone records are non-testimonial records.
  • Records that are not properly authenticated are inadmissible hearsay.
  • The admission of improperly authenticated records in this case violated the defendant’s rights under the Confrontation Clause.
  • If the admission of evidence is constitutional error (which the high court found this was) a court must find beyond a reasonable doubt that the error did not contribute to the verdict.
  • In this case the error was harmless beyond a reasonable doubt because of the overwhelming other evidence of Hood’s guilt and the minimal probative value of the cell phone records.

Read the blog’s complete analysis of Hood I  here.

So Where’s the Beef?

The Cuyahoga County prosecutor and the state solicitor general essentially are arguing that the Court erroneously conflated hearsay and the Confrontation Clause violations. They agreed that cell phone records are non-testimonial, and agreed that they were improperly authenticated in this case and properly excluded as hearsay. But they disagreed with the Court’s finding that the hearsay violation was also a Confrontation Clause violation. They also disagree about the heightened standard of review used.

These are the key points from the prosecutor’s motion for reconsideration:

  • Unauthenticated non-testimonial records do not implicate the Confrontation Clause. (“…just because the cell phone records were not properly authenticated at Hood’s trial does not render them testimonial statements subject to cross-examination.”)
  • The proper standard of review in this case is abuse of discretion and harmlessness of any resulting error. The admission of an unauthenticated business record is reviewed only for harmlessness. Absent a constitutional violation the standard of review for improper admission of evidence cannot be harmless beyond a reasonable doubt.

The key points from the state solicitor general’s memorandum in support of the state’s motion for reconsideration are these:

  • The United States Supreme Court has made clear that violations of the Confrontation Clause and violations of evidentiary hearsay rules are not coextensive.
  • As written, the Hood opinion contravenes binding United States Supreme Court precedent by constitutionalizing every hearsay violation.
  • If uncorrected, the Hood opinion will significantly lower the bar for defendants presenting  hearsay challenges .
  • The Court should adhere to its judgment, but modify its opinion to avoid suggesting that every hearsay violation is also a confrontation violation.

The AG’s memorandum went so far as to suggest to the Court exactly how it should modify its decision.  (See Section D of the Memo).

Hood II, 2012-Ohio-6208

Here’s all of it in a nutshell from ¶ 2 of the new opinion, which replaces the old one:

{¶ 2} “The state does not ask this court to reconsider the judgment in this case, but instead requests that we modify certain portions of the opinion that were not outcome-determinative. For the most part, the state’s concerns center around the statement in the original opinion, “A hearsay violation itself violates the Confrontation Clause, and thus requires a heightened harmless-error analysis.” State v. Hood, ___ Ohio St.3d ____, 2012-Ohio-5559, ___ N.E.2d ___, ¶ 40. We agree that that statement and supporting language was overbroad and was made in error. Upon reconsideration, we modify the opinion to clarify that it is not the hearsay nature of the cell-phone records at issue that made their admission constitutional error. Instead, it was their lack of authentication as business records that made their admission unconstitutional under the Confrontation Clause, because without that authentication, the records cannot be considered nontestimonial. We do not agree with the state that the trial court’s error in admitting the unauthenticated records was not constitutional error.” (meaning the heightened standard of review also stands in the case.)

The Court did remove paragraphs 40-42 from Hood I, as the solicitor general had suggested, but not accept the rest of her recommended edits.

Justice Cupp’s Separate Concurrence

Justice Cupp would have modified the original opinion exactly as the state solicitor general suggested. He wrote that the modified opinion “should specifically clarify that violations of the Confrontation Clause and violations of evidentiary hearsay rules are not coextensive.”

Concluding Observations

The trial judge should indeed have followed his gut reaction and had Verizon subpoenaed.  Would’ve saved a whole lotta grief.

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