State v. HendersonState v. Henderson
- Reporters:
- ,
- Before:
- Carol Ann Robb, Gene Donofrio, Kathleen Bartlett (per curiam)
JUDGMENT: Denied.
Atty. Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee and
Atty. Rhys B. Cartwright-Jones, 42 N. Phelps St, Youngstown, OH 44503 for Defendant-Appellant.
{¶1} For the following reasons, this court hereby denies Defendant-Appellant Hakeem Henderson’s application for reconsideration and his request for en banc consideration.
{¶2} Appellant was convicted in the Mahoning County Common Pleas Court of engaging in a pattern of corrupt activity and two counts of aggravated murder. On appeal, one of Appellant’s assignments of error contended the trial court erred in admitting the hearsay statement of a witness under the forfeiture by wrongdoing exception to the confrontation clause, arguing nothing implicated Appellant in wrongdoing with regards to the witness. We overruled Appellant’s argument and affirmed his conviction on November 30, 2018. State v. Henderson, 7th Dist. No. 16 MA 0057, 2018-Ohio-5124. The clerk noted service of our judgment on the docket on December 6, 2018.
{¶3} Appellant filed this timely application for reconsideration on Monday, December 17, 2018. See
{¶5} Appellant’s application for reconsideration argues the forfeiture by wrongdoing exception to the confrontation clause requires some evidence of a defendant’s knowing participation in an alleged conspiracy to prevent a witness from testifying and there was no proof of his collusion in procuring the witness’s absence. He states en banc reconsideration is appropriate based on a perceived conflict with ¶ 18 of this court’s Irwin case. However, there is no conflict.
{¶6} In Irwin, the victim was dying of a disease when the defendant assaulted him; the court allowed the victim’s testimony to be preserved via deposition where the defendant’s attorney was present for cross-examination; the victim died before the defendant’s felonious assault trial; and the deposition transcript was read to the jury at trial. State v. Irwin, 7th Dist. No. 06 MA 20, 2007-Ohio-4996. On appeal, the defendant raised a confrontation issue with regards to the leading questions asked at deposition by the state and the inability to cross-examine the court reporter who took the deposition. Id. at ¶ 9, 11, 19. We overruled these arguments. Id. at ¶ 23. We also noted the defendant’s trial attorney objected to the deposition on the grounds that he was not able to meaningfully question the victim at deposition due to the victim’s condition. Although this argument was not raised on appeal, this court pointed out a defendant forfeits his confrontation right where his “own misconduct is responsible for the witness’s unavailability.” Id. at ¶ 18 (pointing out the defendant’s conduct was said to have contributed to the victim’s deterioration).
{¶7} Initially, we note the topic was dicta in that case. (We also note that case did not analyze the element requiring intent to procure the witness’s unavailability at
{¶8} As pointed out while affirming Appellant’s conviction, the wrongful procurement of the witness’s absence need not consist of a criminal act. Henderson at ¶ 21. Since threats, intimidation, bribery, and encouragement to flee the jurisdiction can satisfy the exception, the wrongdoing need not consist of a physical act (as happened to be the factual situation in Irwin). See id. at ¶ 21. The defendant need not have direct contact with the witness. Id. at ¶ 24. The elements of the test, to “seek to undermine the judicial process by procuring or coercing silence from witnesses” as set forth by the United States Supreme Court, do not require the defendant himself to be the one who personally contacts the witness. Id., quoting Davis v. Washington, 547 U.S. 813, 833, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and Giles v. California, 554 U.S. 353, 361, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008) (discussing the situation where the defendant uses an intermediary for the purpose of making the witness absent).
{¶9} We specifically concluded that a defendant’s intentional procuring of a witness’s availability from trial may be performed by others acting on his behalf. Henderson at ¶ 24, citing Rice v. Marshall, 709 F.2d 110, 1104 (6th Cir.1983). There was no obvious error in our recitation of the law, which we then applied. Contrary to Appellant’s suggestion we then analyzed his case to determine whether there was adequate evidence showing Appellant intentionally procured the witness’s unavailability.
{¶10} Appellant next contends there was insufficient evidence that the witness was threatened and by whom or that Appellant participated in procuring the witness’s absence. Appellant initially alleges there was no attempt to bring the witness to an in chambers hearing to specify why he was afraid to testify. Yet, there was a plethora of
{¶11} Appellant also criticizes the use of hearsay in proving the wrongdoing and the witness’s fear to the trial court. However, the rules of evidence do not apply at hearings to determine the admissibility of evidence. See
{¶12} Appellant complains the declarant provided a “misty” reference to “they say” when disclosing the defendants threatened to kill him. As pointed out, this reference was made in the context of discussing the trial of Appellant and his co-defendant who was his brother. We emphasized how circumstantial evidence inherently possesses the same probative value as direct evidence and rational inferences are permissible. Henderson at ¶ 32, citing State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2000), and State v. Filiaggi, 86 Ohio St.3d 230, 247, 714 N.E.2d 867 (1999). Such rules apply even when evaluating whether the state presented sufficient evidence to find a defendant guilty beyond a reasonable doubt. See Treesh, 90 Ohio St.3d at 485; Filiaggi, 86 Ohio St.3d at 247. Appellant must remember the standard at the evidentiary hearing was only preponderance of the evidence, which means “more likely than not” and does not require a firm conviction or belief, let alone proof beyond a reasonable doubt. Henderson at ¶ 25, 32, citing State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 87, and State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 54.
JUDGE CAROL ANN ROBB
JUDGE GENE DONOFRIO
JUDGE KATHLEEN BARTLETT
NOTICE TO COUNSEL
This document constitutes a final judgment entry.