2019 Ohio 130
Ohio Ct. App.2019Background
- Hakeem Henderson was convicted in Mahoning County of a pattern of corrupt activity and two counts of aggravated murder; this court affirmed the convictions on November 30, 2018.
- Henderson timely filed an application for reconsideration and for en banc review alleging error in admitting a witness’s hearsay statement under the forfeiture-by-wrongdoing exception to the Confrontation Clause.
- Henderson argued there was no proof he knowingly participated in a conspiracy or otherwise colluded to procure the witness’s absence from trial.
- The panel previously applied the forfeiture-by-wrongdoing doctrine, finding the State met the preponderance standard that Henderson intentionally procured the witness’s unavailability, including through intermediaries and threats.
- Henderson also challenged the use of hearsay at the pretrial forfeiture hearing and claimed a conflict with this court’s earlier Irwin decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether application for reconsideration / en banc review should be granted | State implicitly argues no basis for reconsideration or en banc because panel applied correct law | Henderson says panel erred and (for en banc) that panel decision conflicts with Irwin | Denied: no obvious error, no conflict with Irwin, en banc not warranted |
| Whether forfeiture-by-wrongdoing requires defendant personally to contact or directly threaten witness | State relied on precedent that wrongdoing need not be a physical act or direct contact; intermediary conduct suffices | Henderson contends exception requires proof of his knowing participation or direct collusion to procure absence | Held: No, defendant need not personally contact witness; procuring can be through others acting on defendant’s behalf |
| Whether the evidence met preponderance standard that Henderson intentionally procured witness’s unavailability | State presented circumstantial evidence, reports of threats/fear, and investigative attempts to contact witness | Henderson argued evidence was insufficient, vague ("they say"), and did not identify who threatened witness | Held: Preponderance of evidence supported finding Henderson participated in procuring witness’s absence; circumstantial proof allowed |
| Whether hearsay was improperly relied on at the admissibility hearing | State relied on evidence presented at pretrial forfeiture hearing to show witness’s fear and procurement | Henderson argued hearsay cannot be used to prove wrongdoing at such hearings | Held: Trial court may consider hearsay and other out-of-court statements at preliminary admissibility hearings; rules of evidence are not strictly binding at such hearings |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause framework recognizing forfeiture-by-wrongdoing exception)
- Davis v. Washington, 547 U.S. 813 (forfeiture doctrine covers acts that seek to undermine judicial process)
- Giles v. California, 554 U.S. 353 (forfeiture applies where defendant’s wrongdoing procures witness’s absence; intermediary use discussed)
- United States v. Matlock, 415 U.S. 164 (rules of evidence do not fully apply at preliminary admissibility/suppression hearings)