STATE OF OHIO v. LAVERT HALL
No. 96680
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 26, 2012
2012-Ohio-266
JOURNAL ENTRY AND OPINION
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-540908
BEFORE: Cooney, J., Celebrezze, P.J., and Jones, J.
RELEASED AND JOURNALIZED: January 26, 2012
Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Oscar E. Albores
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{1} Defendant-appellant, Lavert Hall (“Hall“), appeals his convictions of felonious assault and improperly discharging a firearm at a habitation. We find some merit to the appeal but affirm.
{2} Hаll was indicted on four counts of felonious assault and four counts of improperly discharging a firearm at a habitation. All charges included one-, three-, and five-year firearm specifications. The case proceeded to jury trial where the following evidence was presented.
{4} The following evening, Michelle‘s brother, David Flowers (“David“), was sitting on the porch of the family home on East 90th Street, when he observed two vehicles approach the house with guns pointed at him through the vehicle windows. He heard four gunshots as he ran into the house. David testified that Hall was one of the gunmen. David immediately called 911, and Anthony, his father, reported that Hall was one of the shooters.
{5} Det. Darryl Johnson (“Johnson“) testified that he found five spent casings in the street and one 9-millimeter casing on the front porch. However, Johnson testified that there was no physical evidence linking Hall to the crime.
{6} Michelle testified that about one-half hour after the shooting, Hall called her and confessed to shooting the house on East 90th Street where her family lived. The State provided phone records to corroborate her statement that he called her, but there was no recording of the actual conversation to verify what was said. Michelle‘s father, Anthony Flowers, testified that he was upstairs when the shots were fired and he heard Hall‘s laughter after the shots were fired.
{7} The defense called the lead detective, Artara Adams (“Adams“). Hall‘s lawyer used the police report to examine Adams over the State‘s objection. The State used the same police report to cross-examine Adams, who admitted that Hall was the only
{8} The court granted Hall‘s motion to dismiss two of the eight counts pursuant to
{9} Hall now appeals, raising two assignments of error.
{10} In the first assignment of error, Hall argues the trial court violated his due process rights and abused its discretion when it admitted the police report into evidence in violation of
{11} A trial court has broad discretion in the admission and exclusion of evidence, and an appellate court must not interfere with that determination “[u]nless the trial court has clearly abused its discretion.” State v. Apanovitch, 33 Ohio St.3d 19, 25,
{12} Police reports are generally inadmissible hearsay and should not be submitted to the jury. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229; State v. Ward, 15 Ohio St.3d 355, 358, 474 N.E.2d 300 (1984).
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcеment personnel, unless offered by defendant, unless the sources of information or other circumstances indicate lack of trustworthiness. (Emphasis added.)
{13} The admission of the police report allowed the State to introduce hearsay from witnesses who never appeared at trial. The рolice report not only allowed the State to improperly corroborate Michelle‘s testimony (where there was no express or implied charge against her of recent fabrication or improper influence or motive),1 but also allowed the State to present hearsay statements that were never subject to
{14} For example, on the second page of the report, under the heading “Details of Offense,” the report stated, “ON 7.24.2010, THE ABOVE MALE TOLD M. FLOWERS THAT HE WAS GOING TO KILL HER.” Michelle never testified that Hall threatened hеr before the shooting incident.
{15} Further, in the “Original Narrative,” the report stated:
Speaking with the reporting person #1 [David Flowers], stated his sister and suspect recently had a physical fight, suspect called stated, “I‘m going to shoot up your house,” and hung up the phone.
FURTHER INVEST REVEALS
Suspect called 2130 hours, advising – after the рolice leave he‘s returning to do more shooting.
{16} There was no testimony that Hall ever called David Flowers to communicate his intention to shoot the house either before or after the incident. This evidence was presented to the jury for the first time during deliberations. As such, Hall did not have an opportunity to cross-examine the witnesses who made those statements.
{17} Furthermore, the admission of the police report violated Hall‘s right to confront witnesses. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause applies to exclude “testimonial” as opposed to “non-testimonial” evidence. Although the Crawford court did not define “testimonial,” it discussed three possible definitions of that
{18} In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the United States Supreme Court further defined the meaning of the term “testimonial.” In that case, the court held that the Confrontation Clause applies only to testimonial hearsay and not to statements made “to enable police assistance to meet an ongoing emergency.” Id. at 2277. In Davis, the victim had made a 911 emergency call and, in the course of that call, incriminated the defendant. In affirming the lower court‘s admission of the statements, the Davis court distinguished statements made during an emergency situation from statements made during the course of an investigation after the crisis situation has passed. Specifically, the Davis court held:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later prosecution. Id. at 2273-2274.
{20} Further, in Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 1157, 179 L.Ed.2d 93 (2011), a testimonial exception was more discretely defined as follows:
The existence of an ongoing emergency is relevant to determining the primary purpose of the interrogation because an emergency focuses the participants on something other than “prov[ing] past events potentially relevant to later criminal prosecution.” * * * Davis, 547 U.S., at 822, 126 S.Ct. 2266. Rather, it focuses them on “end[ing] a threatening situation.” Id. at 832, 126 S.Ct. 2266. Implicit in Davis is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination. (Footnote omitted.)
{21} This court has held that although appellate courts generally review decisions on the admission of evidence for an abuse of discretion, we apply a de novo standard of review to evidentiary questions raised under the Confrontаtion Clause. State v. Worley, 8th Dist. No. 94590, 2011-Ohio-2779, ¶ 11, citing State v. Babb, 8th Dist. No. 86294, 2006-Ohio-2209, ¶ 17; State v. Simuel, 8th Dist. No. 89022, 2008-Ohio-913, ¶ 35; State v. Steele, 8th Dist. No. 91571, 2009-Ohio-4704, ¶ 18.
{23} The police reports furthеr indicate that the police were investigating Hall for crimes of menacing and intimidation of a crime victim or witness. Such statements are unfairly prejudicial since he was not on trial for these offenses. The admission of the police reports violated
{24} However, because the evidence of Hall‘s guilt is overwhelming, we find this error harmless. Although there was no physical evidence linking Hall to the crime, David Flowers testified that he observed the two vehicles pull up in front of the house, and Hall held a gun pointed at him. In addition, Anthony Flowers testified that he heard Hall‘s laughter after the shots were fired.
{26} Hall‘s two assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleаs court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
COLLEEN CONWAY COONEY, JUDGE
FRANK D. CELEBREZZE, JR., P.J., CONCURS;
LARRY A. JONES, J., DISSENTS (WITH SEPARATE OPINION ATTACHED).
LARRY A. JONES, J., DISSENTING:
{27} Respectfully, I dissent. The majority correctly finds that the admission of police reports in this case violated
Whether a Sixth Amendment error was harmless beyond a reasonable doubt is not simply an inquiry into the sufficiency of the remaining evidence. Instead, the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. State v. Conway, 108 Ohio St.3d 214, 228, 2006-Ohio-791, 842 N.E.2d 996, citing Chapman at 24.
{29} “““When a claim of harmless error is raised, the appellate court must read the record and decide the probable impact of the error on the minds of the average juror.““” Obasohan at 397, quoting State v. Auld, 4th Dist. No. 2006-CAC-120091, 2007-Ohio-3508, 2007 WL 1977748, quoting State v. Young, 5 Ohio St.3d 221, 226, 450 N.E.2d 1143 (1983).
{31} Based on these facts, I cannot conclude that the information in the poliсe reports did not contribute to Hall‘s conviction. Not only did the jury learn that Michelle had a restraining order against Hall, but also that Hall had been arrested and jailed for another crime. Simply put, the admission of the police reports allowed the state to improperly bolster its witnesses’ testimony without giving Hall the benefit of cross-examination.