No. 20368. | Ohio Ct. App. | Jan 21, 2005
{¶ 2} The facts underlying this appeal are set out in the State's brief and are not disputed.
{¶ 3} "Lavon Howard was shot in the street in front of 1341 Morris Avenue in Dayton, Ohio on September 9, 2003. His stepson, James DeMarco Williams, was charged with the crime. By the time the case went to trial, Lavon Howard had stopped cooperating with police and prosecutors, as had his wife Shirley Howard, who was James DeMarco Williams' mother. That Howard was very badly injured was not an issue; the first officer on the scene and a paramedic who treated him testified that he had been shot in the side and was in very bad shape when they put him in the ambulance to go to the hospital. The question for the jury was who had shot him, and the State was in a different position because the State's key witnesses — the victim and his wife — stopped cooperating with the police and prosecutors sometime after grand jury, and did not honor the subpoena ordering them to appear at the trial.
{¶ 4} "To prove Williams's guilt, the State relied upon statements Lavon and Shirley Howard made to others at the scene, which were either excited utterances or statements for medical treatment or diagnosis under Evid. R. 803(2) and 803(4). When Eric Hamby, the first police officer on the scene, saw Lavon Howard, Howard was laying in the street, curled up and moaning in pain from an obvious gunshot wound to the side. Howard told Hamby, in answer to Hamby's question, that James Williams had shot him. Paramedic Thomas Rice arrived shortly after Hamby did, and he began treating Howard. Howard told him that his son had shot him with a.38 caliber revolver. The defense did not object to the admission of Howard's statements to Officer Hamby and Paramedic Rice.
{¶ 5} "The State also introduced a tape of Shirley Howard's 911 call, in which she reported the shooting, asked the operator to please send someone, and said that her son James had shot her husband. Her voice and speech on the 911 call show that she was distraught when she called. Officer Hamby talked to Shirley a few minutes after he talked to Lavon, and she was still beside herself. She told him the same thing she had told the 911 operator — that Williams had shot Lavon Howard.
{¶ 6} "The State also produced other evidence to prove that Williams had shot his stepfather. Williams fled in his mother's car right after the shooting and hid out until police found him, six weeks later, living in a motel in Butler Township. He lied about his identity when he was caught, and he told different stories about the shooting when he talked to the police.
{¶ 7} "The trial court heard argument on the admissibility of Shirley Howard's out-of-court statements, decided to admit them, but then changed his mind after researching Ohio's Confrontation Clause and State v.Storch (1993), 66 Ohio St. 3d 280" date_filed="1993-05-19" court="Ohio" case_name="State v. Storch">66 Ohio St. 3d 2806,
{¶ 8} The State of Ohio has presented one argument in this appeal. It is as follows:
{¶ 9} "In a criminal trial, the admission against the defendant of excited utterances and statements made for medical diagnosis does not violate Ohio's Confrontation Clause. Nor does admission of such statements violate the
{¶ 10} The State argues that the trial court should have ordered a mistrial rather than granting the defendant's motion for an acquittal when it determined that it had improperly admitted evidence which violated Williams' right to confront his accuser under the Ohio Constitution. The State argues that the trial court's action denied it the right to pursue a mid-trial appeal of an evidentiary ruling which eviscerated the State's case.
{¶ 11} We disagree with the State that the trial court was obligated to grant a mistrial when it determined that it had admitted improper evidence. Crim. R. 12(K) allows for expedited prosecution appeals from evidentiary rulings during trial without impermissibly infringing upon a defendant's interest in an uninterrupted trial because of the procedural safeguards provided by the certification. State v. Malinovsky (1991),
{¶ 12} On this record, it is not clear whether the prosecutor was aware that the court was prepared to reconsider its prior ruling or to grant a judgment of acquittal as a result of its reconsidered ruling. However, even if the State was unaware of that prospect, the State may not appeal from the judgment of acquittal because it is the final verdict of a trial court in a criminal case. R.C.
{¶ 13} In State v. Storch (1993),
{¶ 14} The trial court concluded that admitting excited utterances against a defendant in a criminal trial violated Ohio's Confrontation Clause unless the State has shown that the declarant is unavailable and the State had not shown that the declarants were unavailable. We disagree with the trial court's conclusion in both respects.
{¶ 15} Evid. R. 803(2) provides that the following are not excluded by the hearsay rule, even though the declarant is available as a witness.
{¶ 16} "(2) Excited utterances. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."
{¶ 17} In establishing exceptions to the hearsay rule there are two aspects that have predominated common law development. These are necessity and a circumstantial guaranty of trustworthiness surrounding the hearsay declaration that tends to assure truthfulness of the hearsay testimony despite the absence of the oath and cross-examination. Staff Note to Evid. R. 803. Indeed, Ohio has long recognized the admissibility of excited utterances as an exception to the hearsay rule without the State demonstrating that the declarant was unavailable as a witness.Potter v. Baker (1955),
{¶ 18} The Court in Storch noted that the circumstances under which extra judicial statements can be admitted into evidence are few.
{¶ 19} The trial court did not ground its ruling upon the recent United States Supreme Court case of Crawford v. Washington (2004),
{¶ 20} Recently, a New York trial court ruled that a 911 emergency call made by a domestic assault victim is not testimonial in nature and, provided it meets the excited utterance exception to the hearsay rule, it may be admissible against the defendant without violating the
{¶ 21} Judge Ethan Greenberg observed in People v. Moscot:
{¶ 22} "But the analogy should not be extended too far. The 911 call — usually, a hurried and panicked conversation between an injured victim and a police telephone operator — is simply not equivalent to a formal pretrial examination by a justice of the peace in Reformation England. If anything, it is the electronically augmented equivalent of a loud cry for help. The Confrontation Clause was not directed at such a cry.
{¶ 23} "Moreover, a 911 call can usually be seen as part of the criminal incident itself, rather than as part of the prosecution that follows. Many 911 calls are made while an assault or homicide is still in progress. Most other 911 calls are made in the immediate aftermath of the crime. Indeed, the reason why a 911 call can qualify as an `excited utterance' exempt from the rules of evidence barring hearsay is that very little time has passed between the exciting event itself and the call for help; the 911 call qualifies as an excited utterance precisely because there has been no opportunity for the caller to reflect and falsify her (or his) account of events."
{¶ 24} We need not decide whether the State's introduction of the 911 call by Sharon Howard violated Williams' Confrontation Rights under the United States Constitution because the trial court did not reach that issue. We find, however, that the court's ruling that excited utterances are inadmissible under Section
{¶ 25} The Fourth District Court of Appeals did not construe Storch to impose an availability requirement on the firmly rooted hearsay exception of excited utterances. See, State v. Johnson (December 26, 1995),
{¶ 26} We decline to decide whether Lavon Howard's statements to the police officer and the paramedic qualified as statements made for medical diagnosis and as admissible hearsay because the defendant interposed no objection to that testimony when that testimony was presented.
{¶ 27} The State's argument or assignment of error is Sustained in part. The judgment of the trial court is affirmed.
Grady, J., and Young, J., concur.