THE STATE OF OHIO, APPELLANT, v. SILVERMAN, APPELLEE.
No. 2008-0582
Supreme Court of Ohio
Submitted February 3, 2009—Decided April 9, 2009.
[Cite as State v. Silverman, 121 Ohio St.3d 581, 2009-Ohio-1576.]
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
William D. Mason, Cuyahoga County Prosecuting Attorney, and Thorin Freeman, Assistant Prosecuting Attorney, for appellant.
Timothy Young, Ohio Public Defender, and Kelly K. Curtis, Assistant Public Defender, for appellee.
O‘CONNOR, J.
{1} Today we determine whether the statements of a child whose testimony is not reasonably obtainable are admissible when the trial court has not deter-
Relevant Background
{2} During Memorial Day weekend in 2006, appellant Doron Silverman and his family1 visited his parents and sister Batya Silverman in Indianapolis. After dinner, Batya went back to her apartment with Silverman‘s four-year-old son, M.S., who stayed the night with her.
{3} Batya and M.S. spent the next day at the apartment complex‘s swimming pool. After going back to her apartment, Batya decided to bathe M.S. to wash off the chlorine from the pool. Batya, whom M.S. called “Poti,” was undressing M.S. when he pulled on his penis, рointed to it, and said to her, “Poti, put your mouth on it.”
{4} Batya was shocked by this statement because it was the first time M.S. had ever said anything like that to her. She asked her boyfriend, Joe Farber, to come in and hear what M.S. had said. Farber first asked M.S., to no avail, why he said that to Batya. He then questioned M.S. whether he had ever seen that in a movie; M.S. answered no. M.S. also said no when Farber inquired whether he had ever seen his parents do that. Finally, when Farber asked where M.S. learned it, M.S. responded, “Daddy did it. No more talk.” With that, Batya and Farber decided not to pressure M.S. any more at that time, and they finished up the bath.
{5} Silverman and his wife came over to Batya‘s that night, but M.S.‘s earlier comment was not mentioned. M.S. again stayed the night at Batya‘s, and the next day Farber and Batya asked M.S. if he remembered what he had told them in the bathroom the previous day. M.S. said that he did, and they asked M.S. again if he had learned it from watching a movie or his parents, to which M.S. replied that his daddy had done it. When asked if he did it to his father too, M.S. said yes. Batya explored this line of questioning, and when she asked M.S. if he had kissed his father‘s penis, he answered, “No, I lick it.” M.S. further indicated that Silverman was the only person who did this to him, that it was a secret, and that he did not want to talk any more because hе would get in trouble. By the end of the conversation, M.S., who had been coloring, was stabbing the paper with his pen and shaking his clenched fists.
{6} Batya‘s mother then arrived unannounced at Batya‘s apartment. Batya relayed to her what M.S. had said. They left M.S. with Farber and another friend of Batya‘s and went back to Batya‘s parents’ house. When Silverman
{7} After further conversation, the family decided not to call the police and that M.S. and his sister would remain in Indiana for several days while Silverman received help. However, Batya learned about а week later that the children had been returned to Silverman‘s care, which was sooner than the family had originally planned. Soon thereafter, she contacted the Montgomery County children services agency and the West Carrollton police department.
{8} The police interviewed Silverman and his wife on June 13. During the interview, Silverman explained that because his wife was a stay-at-home mother, his only responsibility with the children was to bathe them. He told the detective that when he would get home from working at Chuck E. Cheese, he would take off his clothes and put on a robe—sometimes tying it, sometimes not. He and the kids would then take a bath together, and Silverman claimed that M.S. would climb over him like a “jungle gym.” On one occasion, Silverman claimed that M.S. pulled on Silverman‘s penis in the bath, and Silverman responded by pulling on M.S.‘s. Silverman also told the detective that one time when M.S. was climbing on him, M.S. bit Silverman‘s penis while it was erect. When asked how many times Silverman had his mouth on M.S.‘s genitals, Silverman said two or three times for about a second each time. When the interview was over, Silverman agreed to write down a statement.
{9} On July 21, 2006, the Montgomery County Grand Jury returned a three-count indictment against Silverman for rape and gross sexual imposition. Prior to the indictment, however, Silverman‘s wife set fire to their residence. M.S. and K.S. were killed in the fire.2
{10} Because of M.S.‘s death, the state moved to declare M.S. unavailable for trial and to admit into evidence the statements that he had made to Batya and Farber. After conducting a hearing pursuant to
{11} Silverman appealed to the Second District Court of Appeals, arguing that the trial court erred by admitting M.S.‘s statement. Relying upon this court‘s decision in State v. Said (1994), 71 Ohio St.3d 473, 644 N.E.2d 337, the appellate court reversed and overturned the conviction. State v. Silverman, 176 Ohio App.3d 12, 2008-Ohio-618, 889 N.E.2d 1034.
{12} We accepted jurisdiction over the state‘s appeal. State v. Silverman, 118 Ohio St.3d 1505, 2008-Ohio-3369, 889 N.E.2d 1024. The state now asks us to overrule Said in its entirety or, in the alternative, to limit its holding. Barring that, the state urges us to find that a child‘s competence can be established through extrinsic evidence. Because we find that admissibility under
Analysis
{13} We begin our analysis by examining
{14} The rule provides an exception to the general exclusion of hearsay statements when a child under the age of 12 at thе time of trial or hearing makes an out-of-court statement describing any sexual act that is performed on, with, or by the child.
{15} In Said, we were confronted primarily with the trial court‘s failure to record the hearing determining the competence of a five-year-old witness. The majority held that the failure to record the hearing was reversible error. Id. at 475, 644 N.E.2d 337. Having found error, the majority should have stopped there. However, the majority sweepingly declared, without any authority, that ”
{16} The dissent in Said foresаw the problems with the majority‘s rationale and noted that the competence requirement established by the majority “exceed[ed] the boundaries of
{17} The prescience of the dissent was borne out in State v. Meadows (Feb. 12, 2001), 4th Dist. No. 99CA2651, 2001 WL 803822. In that case, a jury convicted the defendant of murdering his three-year-old daughter. The state introduced testimony from several witnesses relating comments made to them by the daughter that the defendant had abused her. The defendant argued that the testimony was not admissible because the state had failed to satisfy the requirements of
{18} The court of appeals rejected that argument, finding that ”Said * * * exclude[d] hearsay statements that
{19} The distinction that the Fourth District Court of Appeals drew in an attempt to evade Said is artificial and does not withstand close scrutiny in light of Said‘s far-reaching holding. In Said, this court held in no uncertain terms that a competence hearing was required for the statements to be admissible under
{20} We now hold that the better approach is to return to the plain text of
{21} The Supreme Court of Washington recently confronted the same problem we do today. In State v. C.J. (2003), 148 Wash.2d 672, 63 P.3d 765, the court examined the relationship between its competence and child-hearsay-exception statutes. In doing so, the court implicitly overruled its prior decision in State v. Ryan (1984), 103 Wash.2d 165, 691 P.2d 197. See C.J., 148 Wash.2d at 694, 63 P.3d 765 (Sanders, J., dissenting). In Ryan, the court had held that a “declarant‘s competency is a precondition to admission of his hearsay statements.” Id., 103 Wash.2d at 173, 691 P.2d 197. In reaching this conclusion, Ryan relied on the same authority as this court did in Said—5 Wigmore on Evidence (Chadbourn Rev.1974) 255, Sectiоn 1424.
{22} In contrast, the court in C.J. found that the prerequisites of Washington‘s child-hearsay-exception statute,
{23} Likewise, the Supreme Court of Colorado has recognized that there is a “flawed assumption that a determination of incompetency at the time of the hearing invariably establishes that the child‘s statement was not reliable.” People v. Dist. Court of El Paso Cty. (Colo.1989), 776 P.2d 1083, 1088.3 The issue before the court was whether the trial court properly excluded a four-year-old victim‘s hearsay statements regarding her father‘s alleged sexual abuse after determining that she was incompetent to testify as a witness.
{24} As does the Washington statute previоusly discussed and
{25} The court in El Paso distinguished the purpose of a hearing on competence, which “determines only whether a child can accurately recollect and narrate at trial the events of abuse,” id., 776 P.2d at 1087, from the purpose of the hearsay-exception statutе, which permits admission of the statement, without the need to determine competence, when the trial court determines that the “statement is supported by sufficient safeguards of reliability under [
{26} The plain text of
{27} First, the court must consider a host of factors “surrounding the making of the statement, including but not limited to spontaneity, the internal consistency of the statement, the mental stаte of the child, the child‘s motive or lack of motive to fabricate, the child‘s use of terminology unexpected of a child of similar age, the means by which the statement was elicited, and the lapse of time between the act and the statement.”
{28} Applying these requirements to the case at hand, the trial court carefully reviewed the totality of the circumstances surrounding M.S.‘s statements and appropriately determined that there were sufficient indicia of reliability and particularized guarantees of trustworthiness that made the statements as reliable as those admitted under
{29} Furthermore, the remaining criteria of
{30} We are mindful that today‘s holding entails limiting Said to the extent that Said requires that a child be found competent prior to admitting the statement under
{31} In Galatis, we recognized this tension and adopted a test for overruling precedent. However, “[c]onsiderations in favor of stare decisis are at their acme * * * where reliance interests are involved,” Payne, 501 U.S. at 828, 111 S.Ct. 2597, 115 L.Ed.2d 720. Individuals conducting their affairs must be able to rely on the law‘s stability. See, e.g., United States ex rel. Fong Foo v. Shaughnessy (C.A.2, 1955), 234 F.2d 715, 719. Thus, Galatis must be applied in matters of substantive law.
{32} “[T]he opposite is true in cases * * * involving procedural and evidentiary rules,” Payne, 501 U.S. at 828, 111 S.Ct. 2597, 115 L.Ed.2d 720, because a procedural or evidentiary rule “does not serve as a guide to lawful behavior.” United States v. Gaudin (1995), 515 U.S. 506, 521, 115 S.Ct. 2310, 132 L.Ed.2d 444. In fact, “as to such rules, stare decisis has relatively little vigor.” Shaughnessy, 234 F.2d at 719; see also Williams v. Kidd (1915), 170 Cal. 631, 650, 151 P. 1 (“There is * * * nothing, of course, in the doctrine of stare decisis which can apply to a mere rule of evidence in which no one has а vested right“).
{33} The instant case addresses an evidentiary rule and procedure “that do[] not alter primary conduct.” Hohn v. United States (1998), 524 U.S. 236, 252, 118 S.Ct. 1969, 141 L.Ed.2d 242. Said‘s expansive holding did not affect Silverman‘s conduct in this matter, so overruling Said will not disrupt any reliance interest. See Pearson v. Callahan (2009), — U.S. —, 129 S.Ct. 808, 816, 172 L.Ed.2d 565 (“Like rules governing procedures and the admission of evidence in the trial courts, [the] two-step protocol [established in Saucier v. Katz (2001), 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272] does not affect the way in which parties order their affairs. Withdrawing from Saucier‘s categorical rule would not upset settled expectations on anyone‘s part“). Galatis therefore is inapplicable because this matter involves an evidentiary rule, and so stare decisis plays a reduced role. Gaudin, 515 U.S. at 521, 115 S.Ct. 2310, 132 L.Ed.2d 444.
Conclusion
{34} For the foregoing reasons, we limit Said and hold that a hearsay statement of a child declarant can be admitted under
Judgment reversed.
LUNDBERG STRATTON, O‘DONNELL, and CUPP, JJ., concur.
MOYER, C.J., and PFEIFER and LANZINGER, JJ., dissent.
MOYER, C.J., dissenting.
{35} I concur in Justice Lanzinger‘s dissent, which argues that the judgment of the court of appeals should be affirmed. But I do not agree with the dissent‘s rejection of Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256. First, I am not prepared to abandon application of the Galatis test in criminal cases. The ability to rely on a stable legal framework is, if anything, more important in criminal matters where an individual‘s liberty may be at stake. Second, I do not agree with the majority that we should abandon the Galatis test in these circumstances. The majority argues that stare decisis plays a “reduced role” here because the issue before us involves a rule of evidence rather than a substantive rule of law and there are no reliance interests at stake. Majority opinion at ¶ 33. The majority goes on, however, to reduce to zero the role of our precedent, offering little more than disagreement with our prior reasoning for why State v. Said (1994), 71 Ohio St.3d 473, 644 N.E.2d 337, should be limited or abandoned. The majority relies on United States Supreme Court opinions for the contention that stare decisis is less important in procedural matters. See, e.g., Pearson v. Callahan (2009), — U.S. —, 129 S.Ct. 808, 172 L.Ed.2d 565. This approach is certainly not binding on us, and I refrain from either adopting or rejecting it at this point.
{36} I would note, however, that the majority overstates the arguments from the United States Supreme Court cases. Beyond contending that reliance interests are not implicated by procedural rules, the court in Pearson also noted abundant criticism of the precedent at issue as well as its inconsistent application by the lower courts. Id. at —, 129 S.Ct. at 816-818, 172 L.Ed.2d 565. The court in Payne v. Tennessee (1991), 501 U.S. 808, 828-830, 111 S.Ct. 2597, 115 L.Ed.2d 720, similarly overruled two cases after acknowledging that several justices had questioned the precedent and that it had “defied consistent appliсation by the lower courts.” The opinion in Hohn v. United States (1998), 524 U.S. 236, 252, 118 S.Ct. 1969, 141 L.Ed.2d 242, pointed to inconsistent application of the precedent at issue within United States Supreme Court cases themselves. The majority additionally cites United States v. Gaudin (1995), 515 U.S. 506, 521, 115 S.Ct. 2310, 132 L.Ed.2d 444, which does not specifically rely on the inconsistent application of a prior rule to overturn precedent but does emphasize that the precedent relied on an interpretation of the United States Constitution that had since been eroded by subsequent decisions.
{37} Although these cases from the United States Supreme Court do not directly adopt a multipart framework for overruling precedent, they consistently rely on essentially the same factors that we outlined in Galatis. Galatis held that “[a] prior decision of the Supreme Court may be overruled where (1) the decision was wrongly decided at that time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it.” Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, at paragraph one of the syllabus. In Pearson, for example, the United States Supreme Court correspondingly relied on arguments that the prior cases were to at least some extent wrongly decided, that the precedent had been inconsistently applied, and that reliance interests were lessened because the case involved a procedural rule. Pearson, — U.S. at —, 129 S.Ct. at 816-821, 172 L.Ed.2d 565.
{38} The majority misconstrues the United States Supreme Court opinions, ignoring the factors, other than reliance interests, that were considered by the court before it overruled a prior decision. A thorough examination of the cases cited by the majority actually confirms the prudence of our test in Galatis. Because I believe Said was rightly decided and should be followed here, I find it unnecessary to apply Galatis. But evеn if one disagrees, as the majority does, our well-established test for overturning precedent should be fully applied. The majority‘s opinion actually indirectly applies the first and third steps of the Galatis test, though it comes to the wrong conclusion, in discussing the purported problems with Said and the lack of reliance interests at stake. It nevertheless neglects to apply the second step and concludes that Galatis is inapplicable based only on the third step. For these reasons, as well as those offered by Justice Lanzinger, I dissent.
LANZINGER, J., dissenting.
{39} Because
{40} The majority concludes that the text of
Competence of a witness is governed by Evid.R. 601
{41} While it is true that
{42} “Every person is competent to be a witness except
{43} “(A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.” (Emphasis added.) This rule, therefore, presumes that children under ten are incompetent unless certain factors have been met.
{44} A trial court must conduct a voir dire examination of a child under ten years of age to determine the child‘s competence to testify. In making this determination, the court must consider “(1) the child‘s ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child‘s ability to recollect those impressions or observations, (3) the child‘s ability to communicate what was observed, (4) the child‘s understanding of truth and falsity, and (5) the child‘s appreciation of his or her responsibility to be truthful.” State v. Frazier (1991), 61 Ohio St.3d 247, 251, 574 N.E.2d 483.
{45} Competence is an issue separate from any hearsay exception.
Ohio‘s child hearsay exception rule is Evid.R. 807
{46}
{47}
{48}
{49} “An out-of-court statement made by a child who is under twelve years of age at the time of trial or hearing describing any sexual act performed by, with, or on the child or describing any act of physical violence directed against the child is not excluded as hearsay under
{50} “(1) The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted pursuant to
{51}
{52} Far from imposing a judicially created requirement onto the rule, the majority in Said explained how
{53} “Competency under
{54} “Out-of-court statements that fall within
{55} This court‘s rationale for requiring competence determinations shows that the principle established in Said was well grounded and was hardly made “without authority.”
Child-hearsay exceptions in other jurisdictions
{56} Other states havе handled the concern over competence by statute, establishing that children under ten are competent if they are victims of certain offenses. See, e.g.,
{57} Similarly, in federal courts, child victims are presumed competent to testify.
{58} The majority cites cases from Washington and Colorado to bolster its conclusion that a competence determination is not needed in Ohio. State v. C.J. (2003), 148 Wash.2d 672, 63 P.3d 765; People v. Dist. Court of El Paso Cty. (Colo.1989), 776 P.2d 1083. But the law of both states differs from Ohio‘s in significant ways. Unlike
{59}
Changes to the competence rules are a matter for the Rules Committee
{60} The court of appeals followed Said‘s mandate that “a trial court must find that a declarant under the age of ten was competent at the time she made the statement in order to admit that statement under
{61} These are good policy arguments. But
{62} I also disagree with the majority‘s discussion of Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256. I would not apply the precedent-changing rules to criminal cases, because those rules were created in the context of substantive civil rather than criminal law. In addition,
{63} State v. Said, 71 Ohio St.3d 473, 644 N.E.2d 337, remains good law in Ohio. The General Assembly has provided a child-hearsay exception by approving changes to the Ohio Rules of Evidence offered by the Supreme Court‘s Rules Committee. But until there is a presumption of competence for child witnesses
PFEIFER, J., concurs in the foregoing opinion.
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and R. Lynn Nothstine and Carley J. Ingram, Assistant Prosecuting Attorneys, for appellant.
Michael T. Columbus and Frank Malocu, for appellee.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, urging affirmance for amicus curiae, Ohio Public Defender.