On September 5, 2013 the Supreme Court of Ohio handed down a merit decision in State v. Ricks, 2013-Ohio-3712. The issue was whether it was proper in this case to admit a non-testifying accomplice’s out-of-court statements through the testimony of an investigating police officer. Although the Court unanimously held the admission of the statements in this case was improper, the Court split 4-3 on the reasons for its ruling. Justice Pfeifer wrote the lead decision for himself and Justices O’Donnell, Kennedy, and O’Neill. Pfeifer’s opinion found the admission of the statements violated the defendant’s confrontation rights under the state and federal constitutions. Justice French wrote the separate concurrence for herself, Chief Justice O’Connor, and Justice Lanzinger. The concurrence would find the statements inadmissible only because they violated Evid. R.403. The case was argued January 23, 2013. Read the oral argument preview here and the analysis of the oral argument here.
I am tempted to turn this case over to my colleagues who teach evidence. It could be a complete semester’s workout. Justice Pfeifer went into minute detail of the facts of the case, which I will try to distill. This is difficult because the case is intensely fact specific and has no syllabus.
A known drug dealer named Calvin Harper was murdered at his residence in Sandusky, Ohio. Preliminary investigation led police to learn of the involvement of Aaron Gipson, a Michigan resident. Witnesses confirmed that Gipson was in Sandusky the day of the murder. He and another man, then unknown, had visited Harper’s sister Chanel and a friend at Chanel’s house. Both Chanel and her friend knew Gipson. Neither knew the other man, although Chanel gave the police a description of him, as did a neighbor who found the body. The neighbor had apparently been visited accidentally by the unknown man who had been looking for Harper.
Sandusky police found and questioned Gipson, who was in custody on another matter in Canton, Michigan. Somehow, the Sandusky police came up with the name “Peanut” as the man with Gipson (how this came to pass did not come out at trial) and passed this information on to Canton Police Officer Michael Steckel. Steckel, another officer, and Gipson drove to the neighborhood where the second man lived. Gipson saw the man and identified him to the police as “Peanut.” The police later described Gipson as terrified when he saw “Peanut.”
Steckel was able to identify “Peanut” as Thomas Ricks by making a phone call to the address where they had seen him, and asking for his real name. The police were then able to get a photograph of Ricks from another jurisdiction. From the photograph, Gipson identified Ricks as “Peanut. ” Back in Sandusky, both Chantel and the neighbor picked Ricks’ photo out of a photo array as the man who had been with Gipson.
At Ricks’ trial, Officer Steckel testified about Gipson’s statements to him identifying Ricks. Those statements form the basis of this appeal. Ricks moved to exclude these statements of identification. The trial court allowed the statements to come in, with a limiting instruction that the statements were made for the sole purpose of explaining the officer’s conduct, and not for their truth.
The jury found Ricks guilty of a number of charges, including two counts of aggravated murder and robbery. He was sentenced to life without the possibility of parole, plus twenty-six years. 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. The Supreme Court accepted the case on discretionary review.
Sounds innocuous, huh? Not so fast… Why exactly did Officer Steckel testify that Gipson said this to him when he saw the defendant? Was it just to explain to the jury the purpose of his investigation? Or was it to finger Ricks as the accomplice to murder? The gravamen of this appeal is Ricks’ challenge to the admission of Gipson’s statements through the testimony of Officer Steckel.
The Crawford issues
In 2005, in Crawford v.Washington the U.S. Supreme Court held that testimonial statements from witnesses absent from trial can only be admitted where the declarant is unavailable and the defendant has had a prior opportunity to cross examine the witness. There is no dispute that Gipson’s statements in this case were testimonial statements. But the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted therein.
The testimony offered by Officer Steckel was not offered to prove Ricks’ involvement in the crime, but only to explain the police conduct while investigating the case, and as such, was not hearsay. Thus there was no Confrontation Clause violation. The statements explain what led the police to obtain a photograph of Ricks to show to witnesses.
Relevant Precedent and Rules
State v. Thomas, 61 Ohio St.2d 223 (1980) “Extrajudicial statements made by an out-of-court declarant are properly admissible to explain the actions of a witness to whom the statement was directed.”
State v. Blevins, 36 Ohio App.3d 147 (10th Dist. 1987) “Where statements are offered to explain an officer’s conduct while investigating a crime, such statements are not hearsay.”
State v. Humphrey, 2008-Ohio-6302 (10th Dist.) Warning courts of the danger of unfair prejudice in allowing statements to explain an officer’s conduct in the course of investigating a crime, cautioning in particular that statements connecting the accused with the crime charged should be excluded.
State v. Richcreek, 2011-Ohio-4686 (6th Dist.) In evaluating whether a statement is offered for the truth, a secondary assessment must be made to determine if the probative value is outweighed by the prejudicial effect.
State v. Issa, 93 Ohio St.3d 49 (2001) “An alleged accomplice’s out-of-court statement incriminating a defendant is ‘particularly deserving of cross examination.’”
Evid. R. 403 Relevant evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice.
“That’s Peanut”: Explanation of Police Investigation or Nailing Ricks as an Accomplice to Murder?
Short answer—the latter. And improperly so. The key holding of the lead opinion on this point is in paragraph 27:
“In sum, in order for testimony offered to explain police conduct to be admissible as nonhearsay, the conduct to be explained should be relevant, equivocal, and contemporaneous with the statements; the probative value of statements must not be substantially outweighed by the danger of unfair prejudice; and the statements cannot connect the accused with the crime charged.”
Application of this principle to the facts of this case
The lead opinion held that while the police conduct in obtaining the photo of Ricks was relevant, and it was equivocal because it required an explanation as to what led the police to get a photo of Ricks, and the police identification of “Peanut” was contemporaneous with Gipson’s statements, the nonhearsay reason given for introducing the statements was just a pretext to connect Ricks to the crime—an improper, highly damaging, and prejudicial reason.
The admission of the statements through Officer Steckel was improper and violated Ricks’ right of confrontation. Steckel’s testimony tied Ricks to Gipson and to the crime. In particular, Gipson’s statement—“that’s Peanut”—was a statement identifying Gipson’s accomplice to murder, not an explanation of why the police had gotten the photo to show other witnesses. The statement was offered for the truth of the matter asserted, and used by the state as evidence that the person in the photo committed the crime.
A couple of other important points
The court of appeals stated in its decision that “Gipson was made available for questioning but appellant declined.” The high court issued a firm reminder that the burden was on the prosecution, not the defendant, to bring Gipson to the stand. Sometimes these fundamentals get lost.
At oral argument Ricks had strongly argued that the prosecution made improper use of the statements of identification as substantive evidence in closing argument. The high court agreed the statements were not used to explain how the police went about their investigation, but for their truth—that Ricks was Gipson’s accomplice to the murder. The closing argument underscored the fact that Gipson’s statements were to nail Ricks as an accomplice in the murder, not as an explanation of police investigation.
Officer Steckel’s testimony where he related that Gipson had said “That’s Peanut” was a violation of the defendant’s constitutional rights under the Confrontation Clause of the state and federal constitutions. But constitutional error can be harmless if it is deemed harmless beyond a reasonable doubt. A lot of error falls under the bridge with this principle. But in this case the Court found the disputed testimony could well have contributed to Ricks’ conviction, and therefore was not harmless. The case was sent back for a new trial.
The separate concurrence, authored by Justice French, was far more limited in scope than the majority, avoiding the Confrontation Clause issues. The justices who concurred separately did so solely because they believed that Gipson’s out-of-court statements identifying Ricks as “Peanut” were inadmissible under Evid. R 403 because their prejudicial effect outweighed any probative value. The concurrence also found the court’s limiting instruction in the case inadequate to ensure that the jury did not use Gipson’s out-of-court statements for an impermissible purpose. “The fact that a limiting instruction can be given regarding certain relevant evidence, however, does not guarantee its admissibility,” wrote French.
There’s been a lot of fallout from the U.S. Supreme Court decision in Crawford, and this is just one of several cases from the Supreme Court of Ohio on this. Justice Pfeifer is the hawk on Confrontation Clause rights (putting him in alliance with Justice Scalia on this topic). And he has been particularly enamored of the interplay between hearsay violations and Confrontation Clause violations. That was apparent at the end of last year in the case of State v. Hood, 2012-Ohio-5559, reconsideration granted inHood II, 2012-Ohio-6208.
In this case, Pfeifer continues to take a broader view of this entire issue than some of his colleagues. At oral argument in Ricks he telegraphed his feelings when he said this: “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.”
As far as the Ricks case is concerned, I found the disputed statement was clearly offered for its truth and exactly the kind of statement Crawford would ban, in the absence of an opportunity for cross-examination of the declarant. I thought there would be a majority for this point of view, but didn’t think Chief Justice O’Connor would go as far as Justice Pfeifer on this. I also had trouble with the curative instruction. Apparently the justices, particularly Justice French, did as well.
At oral argument Justice French asked whether the admissibility determination should be based on how prejudicial the admission was. Ultimately, the concurrence she authored went exactly in that direction.
We are far from done with these issues. For example, in State v. Darius Clark, also argued in January, the issue is whether a child’s statement to his teachers about physical abuse constitutes testimonial evidence barred by the Confrontation Clause when the child has been found incompetent to testify. That decision should be released soon.