2016 Ohio 7497
Ohio Ct. App.2016Background
- On Sept. 15, 2015 a confidential informant (CI) working with a drug task force arranged a buy from Eric Suber; the transaction was recorded and yielded 11.87 grams of methamphetamine.
- The amount exceeded the statutory "bulk" amount for meth but was less than five times bulk; BCI tested and confirmed methamphetamine.
- Suber was indicted for aggravated trafficking (third-degree felony) with mandatory prison exposure and fines; he was later convicted by a jury and sentenced to 30 months’ imprisonment plus license suspension and post-release control.
- At trial the State introduced audio recordings of the telephone calls and the controlled buy; the CI did not testify and was not identified at trial.
- Suber objected, arguing admission of the CI’s recorded statements violated his Sixth Amendment Confrontation Clause rights under Crawford v. Washington because the CI’s out-of-court statements were testimonial hearsay.
- The trial court admitted the tapes; on appeal the court evaluated (1) whether the CI’s recorded statements were hearsay and (2) whether they were testimonial such that Crawford forbids their admission without cross-examination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admission of recorded CI statements violated Confrontation Clause | The recordings are not offered for their truth but to provide context for Suber’s own admissions; therefore not hearsay or testimonial | The CI’s out-of-court statements on the tape are hearsay/testimonial and admission without CI testimony violated Crawford rights | The CI’s statements were not offered for truth but to provide context to Suber’s statements, thus not hearsay or testimonial; no Confrontation Clause violation. |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (testimonial hearsay admitted without opportunity for cross-examination violates the Sixth Amendment)
- Davis v. Washington, 547 U.S. 813 (2006) (statements made unwittingly to an informant are nontestimonial)
- State v. Syx, 190 Ohio App.3d 845 (Ohio App. 2010) (discussing Crawford testimonial framework in Ohio appellate decisions)
- State v. Smith, 162 Ohio App.3d 208 (Ohio App. 2005) (informant’s taped statements provided context and were not testimonial)