State v. Smith

141 N.E.3d 590

2019 Ohio 3257

STATE of Ohio, Plaintiff-Appellee,

v.Tyrone SMITH, Defendant-Appellant.

NO. C-180499

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: August 14, 2019

Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Jennifer Bishop, Assistant City Prosecutor, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant Public Defender, for Defendant-Appellant.

OPINION.

Bergeron, Judge.

{¶1} In this aggravated menancing case, a critical witness failed to show up for trial, so the state opted to present her "testimony" via the expediency of a police body-camera interview. This interview occurred well after the incident at hand and can only be characterized as "testimonial" in our Confrontation Clause lexicon. The court accordingly erred, both on constitutional and hearsay grounds, in admitting this evidence, and the error cannot be brushed aside as harmless because the court specifically relied on this interview to convict the defendant. We accordingly reverse the decision below and remand for a new trial.

I.

{¶2} On New Year's Day 2018, William Jeffreys and his girlfriend, Nadia Faulk, spent the day together running errands and planned to attend a concert later that night. At the same time, defendant-appellant Tyrone Smith (Ms. Faulk's former beau), arrived at Ms. Faulk's home with his own notion that the two would be spending time together that evening. When Mr. Smith arrived at Ms. Faulk's home, however, she was not there. While waiting, Mr. Smith's friend, Bryant Wilson, arrived at the house to join him, and shortly thereafter Mr. Jeffreys showed up to drop off Ms. Faulk.

{¶3} According to Mr. Jeffreys, upon arriving at her house, he pulled into the driveway next door and another car pulled up behind him, blocking his car. With the car blocked, Mr. Smith approached Mr. Jeffreys's car window and began threatening to kill Mr. Jeffreys with a gun. At some point, Ms. Faulk exited from the vehicle, imploring Mr. Smith to stop. Eventually, the vehicle blocking Mr. Jeffreys's car moved, and he left the scene.

{¶4} Upon returning home, Mr. Jeffreys testified that he called the police, and officers responded at 1:34 a.m., arriving to his house a few minutes later. After speaking with Mr. Jeffreys and gathering details about the incident, the officers and Mr. Jeffreys proceeded to Ms. Faulk's residence, approximately a mile away. Upon arriving at Ms. Faulk's house, the two officers approached the house and, once inside, began talking to Mr. Smith (who, notwithstanding the earlier altercation, succeeded with his plan to hang out with Ms. Faulk). Realizing that Mr. Smith was the alleged perpetrator, the police handcuffed him, and Mr. Jeffreys confirmed his identity as the perpetrator. The police then attempted to speak more with Mr. Smith, but he proved unwilling to cooperate, and thus the officers turned their attention to Ms. Faulk. Though she initially hestitated in responding, upon prodding and a directive to "tell the truth," Ms. Faulk stated that "I can't really even explain what really happened," but then conceded that "it happened." One of the officers then clarified: "[Mr. Smith] pulled a gun on you?" and Ms. Faulk confimed. The police then asked her about the location of the gun, and she responded that Mr. Smith's friend, Mr. Wilson, took the gun away from the premises. Ms. Faulk also asked rhetorically: "I swear why would I be lying?" and stated that she had tried to go to a neighbor's house to call the police. Ms. Faulk also reminded Mr. Smith that she had told him that she would call the police on him because it "was not cool." The police then formally placed Mr. Smith under arrest.

{¶5} At a bench trial, Ms. Faulk never appeared to testify, despite being subpoenaed. Because she was not present at trial to testify, and over the objections of defense counsel, the judge admitted into evidence the police body-camera footage of the officers' interview with her. The court deemed the video statements admissible in light of the "ongoing emotional situation that occurred and that qualifie[d] as an exception to the hearsay rule."

{¶6} The admission of Ms. Faulk's corroborating testimony would prove decisive at trial, as credibility issues plagued Mr. Jeffreys's testimony. At trial, Mr. Jeffreys maintained that the incident took place sometime between 5:00 p.m. and 7:00 p.m., when there was still daylight. Describing the interaction between himself and Mr. Smith, Mr. Jeffreys maintained: "I believe it was around 6:00, 6:30 or so, 5:30 - - between 5:00 and 7:00 in the evening, I know that," and "day was starting to get dark. But it wasn't all the way dark * * *. [i]t was still enough daylight to see." On cross-examination, he explained: "It was still light out, yes. * * * Just starting to get dark. I don't know what time it was to be sure, but I know it happened." But Mr. Jeffreys also testified that he drove directly home and called the police immediately, and the police received the dispatch at approximately 1:30 a.m. on January 2 and arrived at his home a few minutes later. Furthermore, Mr. Wilson and Mr. Smith both maintained that the incident occurred much later in the evening. Mr. Wilson testified that he arrived at the house to meet Mr. Smith at 11:00 p.m. and that Mr. Jeffreys and Ms. Faulk arrived approximately 20 minutes later. Similarly, Mr. Smith described Mr. Jeffreys and Ms. Faulk's arrival to have occurred around 11:30 or 11:40 p.m. The conflict on the timeline matters because if it had still been daylight, Mr. Jeffreys's testimony about seeing a gun would have been more credible.

{¶7} During closing arguments, defense counsel drew the court's attention to the discrepancies in Mr. Jeffreys's testimony regarding the timeline of events. Defense counsel implied that he could not keep his facts straight because he was lying to incriminate Mr. Smith:

[Mr. Jeffreys] knows how the system works; he's a convicted felon, violent felon. * * * And so he's got this story he is going to tell the police. You have two people that are interested in the same person; same woman, two men. So he's going to make sure * * * Mr. Smith gets locked up. So he says hey, he pulled a gun on me.

* * *

But he can't keep his facts straight because he said it happened between five and six o'clock. It's still light. How can there be such a discrepancy?

{¶8} The court took notice of this "new wrinkle" and ordered transcripts for review. When the court reconvened to render its verdict, the court informed defense counsel that, as to the discrepancies in Mr. Jeffreys's testimony: "Well I have to couple that with the video that we saw. * * * And in that video was one Nadia Faulk correct? * * * And she had some things to say in that video, and that causes me to find your client guilty." The court then found Mr. Smith guilty of the aggravated menacing charge.

{¶9} Mr. Smith now appeals and asserts two challenges to his conviction. Initially, he posits that the admission of Ms. Faulk's statements in the body-camera footage violated both the rule against hearsay and the Confrontation Clause of the Sixth Amendment to the United States Constitution. He also challenges the weight and sufficiency of the evidence supporting his conviction. We begin our analysis with the first assignment of error challenging the admission of Ms. Faulk's statements, considering the Confrontation Clause before turning to hearsay and harmless error.

II.

A.

{¶10} Ms. Faulk's statements do not withstand scrutiny under the Confrontation Clause. Although the rule against hearsay and the Confrontation Clause are "generally designed to protect similar ideals, * * * the Confrontation Clause may bar the admission of evidence that would otherwise be admissible under an exception to the hearsay rule." (Citations omitted.) State v. Issa , 93 Ohio St.3d 49, 60, 752 N.E.2d 904 (2001). Indeed, the Confrontation Clause's " ‘central concern * * * is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.’ " State v. Madrigal , 87 Ohio St.3d 378, 384, 721 N.E.2d 52 (2000), quoting Maryland v. Craig , 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Therefore, the Confrontation Clause prohibits "testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington , 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), paragraph (a) of the syllabus. As a result, we review objections to evidence based on the Confrontation Clause de novo. State v. Thomas , 2015-Ohio-5247, 54 N.E.3d 732, ¶ 14 (9th Dist.) ; State v. Burton , 2017-Ohio-322, 77 N.E.3d 449, ¶ 16 (4th Dist.).

{¶11} The parties do not dispute that Ms. Faulk's statements were uttered during the course of a police interrogation, which the United States Supreme Court teaches falls under the umbrella of "testimonial statements." Crawford at 68, 124 S.Ct. 1354 (testimonial statements at a minimum include "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and * * * police interrogations"). Not all statements made in response to police questioning, however, are testimonial. Instead, statements made during a police interrogation become testimonial when "the circumstances objectively indicate that there is no * * * ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later prosecution." Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). In Michigan v. Bryant , 562 U.S. 344, 374-376, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), the Supreme Court elaborated on this point, and explained that the evaluation should consider both the questions by...