STATE OF OHIO, PLAINTIFF-APPELLEE, v. JEFFREY C. ARNOLD, DEFENDANT-APPELLANT.
CASE NO. 13-13-27
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
March 24, 2014
[Cite as State v. Arnold, 2014-Ohio-1134.]
Appeal from Fostoria Municipal Court, Trial Court No. CRB1300116. Judgment Affirmed.
Gene P. Murray for Appellant
Timothy J. Hoover for Appellee
{¶1} Defendant-appellant Jeffery C. Arnold (“Arnold“) appeals the June 18, 2013, judgment of the Fostoria Municipal Court sentencing Arnold to 150 days in jail following Arnold‘s bench trial conviction for Domestic Violence in violation of
{¶2} The facts relevant to this appeal are as follows. On March 28, 2013, a complaint was filed against Arnold alleging that Arnold committed Domestic Violence in violation of
{¶3} On April 1, 2013, Arnold entered a plea of not guilty to the charge against him. (Doc. 7).
{¶4} On June 18, 2013, the case proceeded to a bench trial. At the trial, the State called four witnesses: Lester Arnold, the victim, Connie Arnold, the victim‘s wife and mother to Arnold, and two officers that responded to the scene. The State then rested its case. Arnold‘s counsel cross-examined all of the witnesses, but Arnold did not present any further evidence. Following closing
{¶5} The trial court then proceeded directly to sentencing, and sentenced Arnold to 150 days in jail. (Doc. 28). A judgment entry reflecting this was filed that same day, June 18, 2013. (Id.)
{¶6} It is from this judgment that Arnold appeals, asserting the following assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE TRIAL COURT ABUSED ITS DISCRETION AND THE PROSECUTING ATTORNEY WRONGLY AND IMPROPERLY ADVISED THE STATE‘S OWN KEY WITNESS THAT HE (LESTER ARNOLD, THE ALLEGED VICTIM) HAD NO RIGHT TO INVOKE HIS PRIVILEGE UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION, TO NOT TESTIFY, REGARDING LESTER ARNOLD‘S EXPRESSED UNDER OATH STATEMENT THAT “I HAVE A RIGHT FROM SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT AND I DO HAVE A RIGHT TO REFUSE TO TESTIFY,” WITH THE TRIAL COURT EFFECTUALLY AND REPEATEDLY DENYING SAME, AND OTHERWISE ADVISING THE WITNESS OF CONTEMPT OF COURT, THEREBY RESULTING IN REVERSIBLE ERROR.
ASSIGNMENT OF ERROR 2
DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, BY THE TRIAL COURT‘S REPEATED PATTERN OF DEMONSTRATING THAT IT HAD PREJUDICIALLY PRESUMED THE DEFENDANT-APPELLANT‘S GUILT THROUGHOUT THE COURSE OF THE TRIAL, THEREBY RESULTING IN REVERSIBLE ERROR.
THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, THEREBY RESULTING IN REVERSIBLE ERROR.
ASSIGNMENT OF ERROR 4
THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING STATE‘S WITNESS LESTER ARNOLD TO READ FROM HIS WRITTEN STATEMENT TO THE POLICE, OVER DEFENSE OBJECTION, INTO EVIDENCE AT TRIAL, THEREBY DENYING DEFENDANT-APPELLANT‘S FUNDAMENTAL RIGHT TO CONFRONT WITNESSES UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES, AS STATE‘S WITNESS LESTER ARNOLD HAD ALREADY INVOKED HIS FIFTH AMENDMENT PRIVILEGE AND HAD TESTIFIED THAT HE DIDN‘T REMEMBER WHAT HAD HAPPENED, AND THEREFORE COULDN‘T BE CROSS-EXAMINED OR OTHERWISE CONFRONTED ABOUT HIS WRITTEN STATEMENT, STATE‘S EXHIBIT A.
{¶7} For the sake of clarity, we elect to address the assignments of error out of the order in which they were raised.
Third Assignment of Error
{¶8} In Arnold‘s third assignment of error, he contends that the trial court‘s finding of guilt was against the manifest weight of the evidence. Specifically, Arnold argues that there were no signs of any physical harm to Lester and that Lester testified that he did not remember what happened.
{¶9} In reviewing whether the trial court‘s judgment was against the weight of the evidence, the appellate court sits as a “thirteenth juror” and examines the
{¶10} In this case, Arnold was charged with Domestic Violence in violation of
{¶11} At trial, both Lester and Connie testified that their son, Arnold, lived with them. Thus Arnold was a “household member” for purposes of
{¶12} Testimony at trial revealed that on the evening of March 25, 2013, Arnold was having dinner with his parents, Lester and Connie. Arnold “wasn‘t especially happy” with what Connie made for dinner and he became agitated. (Tr. at 23-24). Arnold “became threatening” so Lester got up and walked into “the
{¶13} Connie, who was not in the room at the time of the incident, heard a “commotion,” consisting of “a crashing sound” and “a struggling sound.” (Tr. at 24). At that point, Connie exited the residence along with her grandson. (Id. at 24-25). A neighbor happened to be outside, “so in the interest of safety [Connie] asked [the neighbor] to call the police.” (Tr. at 25).
{¶14} Subsequently, the police arrived at the residence. The officers approached the residence and spoke briefly with Arnold from outside. The officers asked Arnold if they could see Lester to make sure he was “okay.” (Tr. at 36). Arnold told the police that Arnold did not have to speak with them and then Arnold “slammed the door in [the officer‘s] face.” (Id.)
{¶15} The officers repeatedly tried to make contact with Arnold inside the residence. As the officers considered whether they were going to have to make a forced entry into the residence, Lester came out of the garage. Officers later learned from a neighbor that around this time Arnold also walked out of another exit from the residence.
{¶16} Officer Brett Bethel of the Fostoria Police Department testified that Lester seemed to be “very scared, [and] agitated about the situation.” (Tr. at 16). Officer Bethel testified that he did not see any injuries on Lester but he did notice
{¶17} On appeal, Arnold argues that his conviction was against the manifest weight of the evidence as there was no evidence of physical harm to Lester. In addition, Arnold contends that since the victim in this case, Lester, testified that he did not remember whether Arnold caused or attempted to cause him physical harm, the State could not prove its case beyond a reasonable doubt.
{¶18} While it is true that there was no testimony indicative of physical harm to Lester beyond Lester‘s hair being “disheveled” and the choking, the statute at issue does not require physical harm. It merely requires that Arnold cause or attempt to cause physical harm to a family or household member. Evidence was introduced that Arnold became agitated, and that he followed Lester out of the kitchen when Lester tried to remove himself from the situation. Evidence was introduced that Arnold grabbed Lester by the hair and “choked” him. Evidence was also introduced that Lester had a “ruptured disc in [his] neck,” which could have made him particularly vulnerable to injury. (Tr. at 9).
{¶19} At trial Arnold‘s counsel elicited testimony on cross-examination of Arnold‘s mother that Lester was easily agitated and “goes up like a rocket” in an attempt to establish that perhaps Lester was the aggressor. (Tr. at 31). However,
{¶20} Based on the testimony that was presented at trial, we cannot find that under these circumstances the trial court “lost its way” or that there was a “manifest miscarriage of justice.” Accordingly, Arnold‘s third assignment of error is overruled.
First Assignment of Error
{¶21} In Arnold‘s first assignment of error Arnold contends that the prosecutor improperly advised State‘s witness Lester Arnold that Lester could not invoke his Fifth Amendment right against self-incrimination to refuse to testify. In addition, Arnold argues that it was improper for the trial court to admonish Lester Arnold with the statement that Lester may face contempt of court if Lester did not answer the questions of the prosecutor.
{¶22} “There is no absolute right to invoke the Fifth Amendment.” In re High Fructose Corn Syrup Antitrust Litigation, 293 F.Supp.2d 854, 859 (C.D.Ill.2003) “‘To be privileged by the Fifth Amendment to refuse to answer a question, the answer one would give if one did answer it (and answer it truthfully) must have some tendency to subject the person being asked the question to
{¶23} In this case, Arnold contends that the State and the trial court made improper comments to State‘s witness Lester Arnold while he was on the stand during the following portion of Lester‘s testimony.
Q: Mr. Arnold, were the police dispatched to your residence on March 25th of 2013?
A: I don‘t remember the date.
Q: Were they dispatched there in the spring of this year?
A: Yes.
Q: Do you recall why?
A: Uhm, at this time, I‘d like to plead the Fifth and I‘m refusing to testify.
Q: Okay. Do you understand that you don‘t have the right to refuse to testify?
A: I have a right from self-incrimination under the Fifth Amendment and I do have a right to refuse to testify.
THE COURT: You also understand you also may be held in contempt for failing to answer?
THE WITNESS: Well, if that‘s the way that the rules work, yes.
* * *
Q: Did you speak with an officer on that spring day when they came to your house?
A: I refuse to answer on the grounds that it may tend to incriminate me.
Q: Did you make a written statement?
A: I refuse to answer based on my Fifth Amendment constitutional rights.
Q: So if an officer provides your written sworn statement that would be a statement you made to the court, correct, or to the officer, correct?
A: I don‘t remember. My blood sugar level was extremely high. My vision was distorted. The tinnitus in my ears were ringing so loud I couldn‘t hear anything, so. I – I couldn‘t see.
Q: I‘m gonna show you State‘s Exhibit A. Do you recognize this?
A: I know my Fifth Amendment rights.
Q: Is that your signature at the bottom of that –
A: I stand on my Fifth Amendment rights.
Q: -- statement?
THE COURT: You‘re refusing to answer, Mr. Arnold?
THE WITNESS: Yes, sir I am.
[PROSECUTOR]: I‘m gonna have you read the statement for the record.
THE COURT: Mr. Arnold?
THE WITNESS: Sir.
THE COURT: Will you read the statement?
MR. MURRAY [Defense Counsel]: Your Honor, I would object.
THE COURT: Basis?
MR. MURRAY: That the witness has invoked his Fifth Amendment privilege.
THE COURT: [Prosecutor]?
[PROSECUTOR]: He hasn‘t given a basis for invoking that privilege.
* * *
MR. MURRAY: In that he would be reading a statement in which he indicated that he was, couldn‘t remember being –
THE COURT: He‘s refused to answer. I don‘t see what the harm would be in having him read the statement. Objection overruled. Answer the – please read the statement, Mr. Arnold.
THE WITNESS: “Jeff [Arnold] became threatening at dinner. * * * I left the table and went into the computer room. Jeff came into the computer room. He grabbed me by the hair, then he choked me. I have a ruptured disc in my neck[.] * * * He continued to yell and would not let me out. * * *
[Prosecutor]: And who is that signed by?
A: The name on it is – I can‘t read the witness, but Lester C. Arnold is the name at the bottom.
Q: And you are Lester C. Arnold?
A: I am one of Lester C. Arnold‘s, yes.
* * *
Q: And is that – Is that the statement you made to the officer on March 25th?
A: I‘ve told you I‘m seeking the protection of the Fifth Amendment. I don‘t remember. And –
* * *
Q: Do you remember speaking with Officer Bethel?
A: Vaguely.
Q: And do you remember making a written statement for Officer Bethel?
A: I just – I just remember telling him that he asked me what I wanted done. I told him I did not want my son arrested. I did not want him charged. All we needed was some space between us.
(Tr. at 6-10).
{¶24} Contrary to all of the arguments raised by the dissent, the preceding portion of testimony makes clear that Lester never presented any basis for invoking his Fifth Amendment “privilege against self-incrimination.” To the contrary, it would appear his only reason for invoking the “privilege” was in order to not testify against his son, Arnold, as Lester did not want Arnold charged in the first place. Nothing in the record establishes how Lester was remotely in danger of giving testimony that would incriminate himself. Therefore, there was nothing improper, either in the State‘s questioning or the court‘s admonishment that Lester could be held in contempt for refusing to answer.
{¶26} Accordingly, for all of these reasons Arnold‘s first assignment of error is overruled.
Second Assignment of Error
{¶27} In Arnold‘s second assignment of error, Arnold contends that he did not receive a fair trial. Specifically, Arnold argues that the trial court “prejudicially presumed the Defendant-Appellant‘s guilt by its comments and conduct.” (Appt‘s Br. at 12).
{¶28} In this case, Arnold cites two instances where he contends that the trial court‘s actions were improper and erroneous. The first was during the following portion of testimony, when Officer Brett Bethel was on the stand as a State‘s witness.
Q [PROSECUTOR]: And what was the nature of that dispatch?
A [OFFICER BETHEL]: Possible domestic in progress.
Q: And what did you find upon your arrival?
A: Upon my arrival, uhm, a female was beginning – a female caller was speaking to her neighbors and she stated that her husband and her son –
MR. MURRAY: Objection, hearsay, Your Honor.
THE COURT: Ms. Dibble?
MS. DIBBLE: Present sense impression.
THE COURT: Mr. Murray?
MR. MURRAY: I would indicate that, uhm, it‘s still, it‘s not an excited utterance and it‘s still –
THE COURT: I‘m sure we‘ll be getting to some excited utterances soon.
MR. MURRAY: Well –
THE COURT: Anything else, Ms. Dibble?
MS. DIBBLE: No.
THE COURT: Objection sustained.
(Tr. at 14-15).
{¶29} Here, Arnold contends that the trial court‘s statement that there would probably be “some excited utterances soon” illustrated that the court was already prejudiced toward Arnold‘s guilt. However, the court sustained Arnold‘s counsel‘s objection, precluding the testimony that the State intended to offer. It is difficult for us to see how the court sustaining Arnold‘s counsel‘s objection establishes that the court had already presumed his guilt.
{¶30} Moreover, at this point in the trial, the court had already heard opening statements and the testimony of Lester Arnold. The court was aware of
{¶31} Arnold next contends that the trial court “improperly assumed an adversarial, prosecutorial role during the defense‘s closing argument[.]” (Appt‘s Br. at 12-13). During defense counsel‘s closing argument, the following exchange occurred between defense counsel and the court.
DEFENSE COUNSEL: And he also indicated that with regard to, there was no sign of physical harm upon [Lester]. And no sign – and his wife testified that, uh, that she didn‘t see any sign of physical harm upon [Lester].
And, therefore, we respectfully submit that the State – in fact, uhm, his father testified that he didn‘t, that Mr., that Jeffrey Arnold did not cause or attempt to cause physical harm.
THE COURT: Did he say that? I think he said he didn‘t remember.
DEFENSE COUNSEL: But he – with regard to not remembering, we respectfully submit, Your Honor, that is not the proof beyond a reasonable doubt. There‘s absolutely no forensic evidence, no photographs, no – no testimony of any one who claims to have seen any physical harm, any marks or cuts or abrasions of any physical harm –
THE COURT: Is that a requirement under the statute, Mr. Murray?
DEFENSE COUNSEL: I would respectfully submit that‘s indicative –
THE COURT: Is it a requirement under the statute?
DEFENSE COUNSEL: It‘s not a requirement under the statute, but I respectfully submit that it‘s evidence indicative that the State has not shown beyond a reasonable doubt that there was any physical harm to –
THE COURT: Which they‘re not required to do, right?
DEFENSE COUNSEL: They are required to prove proof beyond a reasonable doubt, Your Honor.
THE COURT: But they‘re not required to show harm.
DEFENSE COUNSEL: I respectfully –
THE COURT: Mr. Murray –
DEFENSE COUNSEL: The elements –
THE COURT: -- are we gonna talk in riddles here or are you gonna be – I mean, I understand what you‘re arguing for, but there is no requirement of a showing of physical harm, correct?
DEFENSE COUNSEL: Cause or attempt to cause physical harm –
THE COURT: Correct.
DEFENSE COUNSEL: -- is the requirement. And I‘m respectfully submitted –
THE COURT: No gushing blood. No broken bones. No bruises. No gunshot wounds, right?
DEFENSE COUNSEL: Your Honor, I respectfully submit that the State has not shown beyond a reasonable doubt that there was any attempt to cause harm or physical harm to Mr. Les Arnold. * * *
(Tr. at 46-48).
Fourth Assignment of Error
{¶33} In Arnold‘s fourth assignment of error, Arnold contends that the trial court erred by allowing Lester Arnold to read from his written statement to the police over defense counsel‘s objection. Specifically, Arnold contends that allowing Lester to read his prior statement violated the Confrontation Clause of the Sixth Amendment to the United States Constitution.
{¶34} “The Confrontation Clause to the United States Constitution provides that a defendant in a criminal prosecution has a right to confront the witnesses
{¶35} Confrontation Clause violations are subject to harmless error analysis. See State v. Kraft, 1st Dist. No. C–060238, 2007–Ohio–2247, ¶ 67, citing United States v. Summers, 414 F.3d 1287, 1303 (10th Cir.2005). “A constitutional error can be held harmless if we determine that it was harmless beyond a reasonable doubt.” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, ¶ 78 citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824 (1967).
{¶36} In this case, when Lester repeatedly attempted to invoke his “right against self-incrimination,” refused to answer the State‘s questions, and denied
{¶37} At the outset, we would note that it is unclear, how the inclusion of this evidence violates Arnold‘s Confrontation Clause rights when the witness, Lester Arnold, was present in open court to be confronted regarding his testimonial statement. “The Court in Crawford was explicit: ‘when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.‘” State v. Knauff, 4th Dist. Adams No. 10CA900, 2011-Ohio-2725, ¶ 43, quoting Crawford, supra, at 59, fn. 9, citing California v. Green, 399 U.S. 149, 158; (1970).
{¶38} Notwithstanding this fact, the information contained in the police report could properly have been used to impeach Lester, even though Lester was the State‘s own witness, as Lester repeatedly attempted to assert the privilege against self-incrimination and repeatedly stated he did not recall what happened. According to the dissent, this is apparently all any witness needs to say in order to avoid testifying—or to avoid even being cross-examined or impeached further by any prior inconsistent statement. However, such a rule would be, and always has
{¶39} At the very least the State is initially entitled to pursue the prior statement with the witness - both to give the witness the fullest opportunity to respond to the alleged prior statement and to more clearly determine whether the witness intends to specifically deny the statement. See State v. Hubbard, 7th Dist. Jefferson No. 01JE4, 2002-Ohio-6904, ¶¶ 13-14. At this stage, the issue is one of laying the proper foundation for possible impeachment about what the witness has already stated to another person and not a Fifth Amendment privilege involving something the witness is being asked to reveal for the first time at trial.
{¶40} Even assuming a more elaborate protocol was required by the prosecution in handling the prior statement or establishing any “affirmative
{¶41} Therefore, this argument is not well-taken.
{¶42} Arnold makes additional arguments to assert that his rights were violated, stating that the trial court erred in allowing the police report to be admitted into evidence, and that his trial counsel was ineffective for failing to object to the admission of the police report. However, the trial court, which was the trier-of-fact, had already heard the evidence and thus the admission of the exhibit was merely cumulative and therefore harmless. Accordingly, Arnold‘s fourth assignment of error is overruled.
{¶43} For the foregoing reasons, Arnold‘s assignments of error are overruled and the judgment of the Fostoria Municipal Court is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J., concurs in Judgment Only.
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STATE OF OHIO, PLAINTIFF-APPELLEE, v. JEFFREY C. ARNOLD, DEFENDANT-APPELLANT.
CASE NO. 13-13-27
{¶44} I respectfully dissent from the opinion of the majority.
{¶45} As to Arnold‘s first assignment of error, I disagree with the majority that Lester did not have an adequate basis to assert his Fifth Amendment Privilege against self-incrimination. I would observe that requiring a witness to explain, in open court and on the record, why he wishes to invoke his Fifth Amendment Rights is equivalent to requiring that witness to testify against himself, which is the very thing the Fifth Amendment prohibits. “A valid assertion exists where a witness has reasonable cause to apprehend real danger of incrimination.” State v. Landrum, 53 Ohio St.3d 107, 120 (1990). The claim of the witness is not enough. Id. The trial judge must determine from “‘the implications of the question in the setting in which it was asked‘” whether the answer may criminally implicate the witness or provide a link in a chain of evidence that would do the same. Id. at 120-21, quoting Hoffman v. United States, 341 U.S. 479, 486 (1951). Once the privilege has been properly asserted, the continued questioning of the witness for the purpose of getting before the trier of fact inferences and innuendos that could not otherwise be elicited through direct testimony is prejudicial to the defendant. State v. Dinsio, 176 Ohio St. 460, 467 (1964).
{¶46} Here, when Lester refused to testify, the prosecutor told Lester he had no right to invoke the Fifth Amendment, but that was not the State‘s
{¶47} Moreover, under the circumstances, it cannot be said that the refusal to testify was improper. The majority speculates that the only reason Lester wanted to invoke the Fifth Amendment was to avoid testifying against his son. The reason could just as well have been that Lester was in fact the aggressor and wanted to avoid implicating himself. No one other than Lester and Jeffrey observed what happened, and Connie testified that Lester was easily agitated and “goes up like a rocket.” Trial Tr., p. 31. Lester not only invoked his Fifth Amendment privilege on direct examination by the prosecutor, but continued to exert it upon cross examination by the defense, weakening the majority‘s assumption that he was attempting to avoid testifying against his son. As a result, Lester properly invoked his Fifth Amendment privilege, allowing him to refuse to testify.
{¶48} Once the privilege was properly invoked, it was improper for the trial court to allow the state to continue to ask Lester repeated questions about the events that transpired in the face of his repeated assertions of his Fifth Amendment privilege and refusals to testify. The State concedes that Lester invoked his Fifth
{¶49} However, in the face of repeated questions, and after repeated Fifth Amendment assertions, Lester stated that he did remember telling a police officer that he did not want his son arrested. This, coupled with Lester‘s silence, provides the innuendo that he was silent so that his son will not be found guilty, an inference made by the majority. Further, it was through this silence that the State entered Exhibit A, his prior written statement, into evidence. As the State specifically used Lester‘s silence in conjunction with his statements that he did not want his son in jail to imply he was refusing to testify for an illegitimate purpose, and as a tactic to admit prior written statements into evidence instead of eliciting testimony, it prejudiced the defendant.
{¶50} As to Arnold‘s fourth assignment of error, the majority asserts that the confrontation clause was not implicated by admitting Lester‘s written statement, as Lester was on the stand for the purpose of cross examination. However, a witness who refuses to testify by invoking the Fifth Amendment
{¶51} As to requiring the witness to read his written statement, there is no support for that action in any rule or statute. While the majority3 claims that the admission of the written statement was proper for impeachment purposes, the statement is inadmissible, even under a variety of evidentiary rules, such as, recollection refreshed, past recollection recorded, or excited utterance.
Impeachment
{¶52} The majority asserts that the statement could be offered to impeach the witness. However, for a party to be able to use a prior inconsistent statement to impeach its own witness, the party must prove surprise and affirmative damage.
Recollection Refreshed
{¶53} Under
{¶54} However, if after reading the prior statement the witness still has no current memory of the facts, the statement may be admissible as a past recollection recorded.
[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
Id.4 To properly lay the foundation for a past recollection recorded, the Ohio Supreme Court has noted:
A memorandum made by a witness may be admitted in evidence in a criminal case as ‘past recollection recorded’ if the witness had firsthand knowledge of the subject matter of the memorandum, the memorandum was made at or near the time of the event and while the witness had a clear and accurate memory of it, the witness lacks a complete present recollection of the event, and the witness testifies on the stand that the written memorandum is accurate.
State v. Scott, 31 Ohio St.2d 1 (1972), paragraph 1 of the syllabus. When the witness does not attest that the memorandum accurately reflects the knowledge of the witness at the time the memorandum was made, it is inadmissible. State v. Perry, 147 Ohio App.3d 164, 2002-Ohio-1171, ¶ 79 (6th Dist.). The
{¶55} Here, Lester repeatedly refused to answer any questions about his statement, asserting his Fifth Amendment privilege. When asked by the prosecution whether he remembered making a statement to the officers, he responded: “I just remember telling him that he asked me what I wanted done. I told him I did not want my son arrested. I did not want him charged. All we needed was some space between us.” Trial Tr., p. 10. Lester never attested to the accuracy of the statement at the time it was recorded. In fact, on cross examination, when asked whether it was a true and accurate representation of the events of that night, Lester stated that he did not know and did not remember. Id. at p. 11-12. Thus, Lester‘s statement, under the circumstances of this case, is inadmissible as a past recollection recorded, as the state did not lay the necessary foundation for its admission.
{¶56} Further, in order to offer a memorandum as a past recollection recorded, it is necessary that the witness be available for full and complete cross-examination. “The admission of a memorandum as ‘past recollection recorded’ in a criminal case does not deprive the defendant of his right of confrontation and cross-examination, where the witness is present on the stand and is available for
Excited Utterance
{¶57} The State also appears to argue that the statement was an excited utterance. Not true!
{¶58} As there are no evidentiary rules that would otherwise allow the prior written statement to be admitted, the defendant‘s right to confront his witnesses under the Sixth Amendment was violated, as Lester‘s statements were clearly
{¶59} The State argues that the error is harmless. Appellee‘s Br., p. 13-14. The Ohio Supreme Court has found that the impermissible admission of evidence over the constitutional rights of the defendant is harmless if the “remaining evidence, standing alone, constitutes overwhelming proof of defendant‘s guilt.” State v. Williams, 6 Ohio St.3d 281 (1983), paragraph six of the syllabus. However, a review of the record, without any of Lester‘s testimony and without his written statement, does not provide “overwhelming” evidence of guilt. It is undisputed that some sort of encounter happened between Arnold and Lester, but we have no indication as to who was the actual aggressor. We have an excited utterance by Lester that Arnold punched Lester in the head and attempted to choke him. Trial Tr., p. 17. However, the officer testified that Lester had no visible injuries at the time of incident. No witness actually witnessed the event in question, and no evidence was offered that Arnold was the aggressor. This is hardly “overwhelming” evidence of guilt.
{¶60} The overall tenor of this trial demands that the conviction be reversed and the matter remanded for a new trial.
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