What’s on Their Minds: Admission of Out-Of-Court Statements of Identification without the Declarant Being Cross-Examined. State v. Ricks

Update: On September 5, 2013 the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

On January 23, 2013, the Supreme Court heard oral argument in State v. Ricks, 2011-1912. This murder conviction appeal involves the admissibility of a non-testifying co-defendant’s out-of-court statements through the testimony of an investigating police officer.

Case Background

Thomas Ricks and co-defendant Aaron Gipson allegedly visited Chanel Harper and Crystal Pool at the Harper residence in Sandusky, Ohio. Gipson and Ricks were from Michigan. Although neither of the two women had seen Ricks before that night, Harper’s brother, Calvin, was allegedly involved with Gipson in dealing drugs.

The day after the two men visited Chanel and Chrystal, Calvin Harper was found murdered in his home.

Gipson was eventually found by police and questioned, at which point detectives became aware that a second suspect, identified only as “Peanut,” was involved. Detectives drove with Gipson to identify his co-conspirator’s residence and observed a person standing in front of the house. Gipson pointed to the individual, identifying the man as “Peanut.” Once back at the station, detectives were ultimately able to identify “Peanut” as Thomas Ricks.

Ricks’ picture was included in a photo array. Chanel later picked Ricks’ picture from the array, testifying that she was sure that this was the man she had seen in her home with Gipson. Calvin’s neighbor also identified Ricks through a photo array as the man who came to her door the day of the murder.

Gipson and Ricks were tried separately for aggravated robbery and aggravated murder. Gipson did not testify during Ricks’ trial. But at trial, Gipson’s statements inculpating Ricks were allowed into evidence through the testimony of the investigating police officer.  Ricks was convicted of aggravated murder, aggravated robbery, trafficking in marijuana and trafficking in cocaine. In the parts of its decision pertinent to this appeal, the Sixth District Court of Appeals affirmed Ricks’ convictions on the murder and robbery charges in a split decision. Read the oral argument preview here.

At Oral Argument

Ricks’ Argument

Gipson’s statements of identification in this case, admitted through the testimony of the investigating officer, were clearly testimonial, inculpatory, and offered for their truth. The only permissible way to allow inculpatory  testimonial statements into evidence is if the codefendant takes the stand and is subject to cross examination, or is unavailable, and has previously been made available for cross examination.  Neither happened here. The defendant’s right to confrontation was violated in this case, and no curative instruction could fix that in this circumstance. It would have been one thing if the officer had taken the stand and simply said, “in talking with Gipson we learned of Thomas Ricks, and our investigation continued from there,” but what happened in the case went far beyond that, and impermissibly so. Furthermore, the prosecution impermissibly used the statement as substantive evidence in closing argument.

State’s Argument

Thomas Ricks was never identified by Gipson as the person involved in the murder and the robbery. The only out-of-court statement by Gipson was “that’s Peanut.” That statement was then used to get a photo of Ricks, which was later used in a photo array. Anything else incriminating came from other witnesses in the case who took the stand.  It’s true that since Crawford, testimonial out-of-court statements are subject to the Confrontation Clause, and Gipson’s statement was testimonial.  But Crawford also held that out-of-court statements do not trigger the Confrontation Clause when they are offered for a purpose other than the truth. That is what happened in this case—the statement was used only to explain the police investigation. Investigations have to make sense to jurors; they cannot have unexplained gaps.  This statement was needed for that purpose.  As far as closing argument was concerned, the statement just mirrored the testimony that was given.

What Was on their Minds

The Intersection of Hearsay and the Confrontation Clause

Justice Lanzinger seemed the most concerned and the most on top of this. Did the court mistake a hearsay problem with the confrontation problem, she asked?  Could you have a curative instruction when the matter is not offered for its truth, but still have a confrontation problem because of the testimonial nature of the statement? There are evidentiary problems with what is or isn’t hearsay, and then there is this overlay of constitutional concerns about confrontation and cross examination.

“The Path to Hell?”

What was the purpose of offering the statements? Were they introduced by the officer for their truth, and not to show the direction of the investigation, asked Chief Justice O’Connor? Did the officer just go into too much detail? Is it the process of identifying Ricks from the identification of “Peanut” that was objectionable—which was more than just a co-defendant identifying an accomplice?

Why did we even need to get into this, asked Justice Pfeifer? Why wasn’t the trial just about the evidence that the state knew about the defendant? Why not just have the officer take the stand and say “at some point in our investigation Ricks came to our attention.  In the key exchange of the day, Justice Pfeifer said, “a rule that lets in otherwise impermissible testimony because it is not offered for the truth of the matter—that just seems like a path to hell.”  If you’ve got this great case without this testimony, why use it?

Was the statement offered for something other than for identity, asked Justice Lanzinger?

“That’s Him”

How can “that’s him” be anything other than testimonial, asked Justice O’Neill? Isn’t the only reason Ricks’ picture was put into the array was because his co-defendant said, “that’s him?”

“That’s Peanut,”or “that’s him”—those are statements of identity—hasn’t the U.S. Supreme Court said that under that circumstance you have to put the individual on the stand subject to cross examination, asked Justice Lanzinger?

Apart from Gipson’s testimony, how did the police learn that “Peanut” was Ricks, asked Justice O’Donnell?

If the statement had been, that’s the guy who was part of the robbery, could that have come in, asked Justice French?

The Curative Instruction

What was wrong with the curative instruction, asked Chief Justice O’Connor?

Even if a curative instruction cleans all this up, isn’t it a big problem when the prosecutor then uses the statement as substantive evidence in final argument, asked Justice O’Neill?

Prejudice

Should the admissibility determination be based on how prejudicial the admission was, asked Justice French? Isn’t that determination still quite discretionary?

A Bright Line Rule?

Are you looking for a bright line rule, Justice French asked defense counsel?

Justice Lanzinger asked if that bright line rule would be that a co-defendant’s statement identifying a perpetrator could never be offered through someone else. (answer–that wasn’t the propostion of law put forth by the defense, but it would be happy with it)

If There is a Retrial

What happens if Gipson then comes forward and testifies, asked Justice O’Donnell?

How it Looks from the Bleachers

To Professor Bettman

The prosecutor gave more of a jury speech than an appellate argument, to my way of thinking. Justices Pfeifer (clearly), O’Neill and Lanzinger seem ready to reverse, and probably can pick up another vote. Chief Justice O’Connor was hard to read on this one, pushing each side back some. Justice Lanzinger expressed the most concern about the interplay between hearsay issues and Confrontation Clause issues—a subject on which the Court recently granted reconsideration in State v. Hood (see this post.) To me, the disputed statement was clearly testimonial, (that really isn’t disputed), and clearly offered for its truth, even though it may have taken several steps to get from “Peanut” to Ricks. This looks like exactly the kind of statement Crawford would ban in the absence of an opportunity for cross-examination of the declarant. I’ve always had trouble with a curative instruction explaining why something was offered for a purpose other than its truth.  And the use of that statement in final argument is troubling.

To Student Contributor Elizabeth Chesnut

Both parties met with resistance at oral argument, as one justice went so far as to suggest that the prosecution’s proposition of law was a “path to hell.” With the constitutional rights of future criminal defendants in the balance, it is clear that justices will not take their decision lightly. While it may come down to an interpretation of Crawford, it seems unlikely that the Supreme Court of Ohio will allow prosecuting attorneys to fill gaps in their cases with potentially unconstitutional testimony.

 

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