Submitted January 23, 2013.
Appeal from the Court of Appeals for Erie County, No. E-10-022, 196 Ohio App.3d 798, 2011-Ohio-5043.
Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Kristopher A. Haines, Assistant Public Defender, for appellant.
(¶ 1} In this case, we are asked to determine whether the testimonial, out-of-court statements of an alleged accomplice who is not testifying at a defendant's trial may be admitted through the testimony of an investigating officer for the purpose of explaining the officer's conduct during the course of an investigation. Under the particular facts of this case, we hold that the admission of the alleged accomplice's statements through the testimony of an investigating officer violated the defendant's right to confront the witnesses against him under the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Section 10, of the Ohio Constitution.
Factual and Procedural Background
(¶ 2} On March 11, 2008, Calvin Harper was robbed and murdered in his residence in Sandusky, Ohio. Harper was a known drug dealer. Aaron Gipson, a Michigan resident, was an associate of Harper's in the drug trade. The state alleged that appellant, Thomas Ricks, traveled with Gipson from Michigan and participated in Harper's murder. Testimony regarding statements that Gipson made to law enforcement about Ricks is at issue in this appeal.
Murder of Calvin Harper
(¶ 3} Harper's body was found on March 12, 2008, by Rhonda Farris, who was Harper's neighbor and who sometimes facilitated his drug-trafficking business by allowing Harper to keep his drugs at her house. The police were called; detectives soon learned that immediately before his murder, Harper was to have participated in a drug deal. They checked Harper's phone to determine who might have been involved in that deal and were led to Gipson. Gipson's cellphone records indicated that he was in Sandusky on both March 10 and 11. The murder occurred at some point after 5:42 p.m. on March 11.
(¶ 4} Witnesses confirmed that Gipson was in Sandusky on March 10 with another man, who the state alleges was Ricks, and that on that day, they visited with Chanel Harper, the victim's sister, and Chanel's friend Crystal Pool at Chanel's residence; both Chanel and Crystal knew Gipson, but neither had previously seen the man who was with him on March 10. Chanel was able to give detectives a description of the man who was with Gipson; Crystal was unable to give a description but said that she would be able to point him out if she were to see him again. Both later pointed out Ricks in photo arrays as the man who was with Gipson in Sandusky on March 10.
(¶ 5} Cell-phone records show that Gipson went back to Michigan the evening of March 10 and that he returned to Sandusky late the following afternoon. Those records established that Gipson was in Port Clinton, Ohio, about 20 minutes from Harper's home, when he phoned Harper at 5:15 p.m. on March 11; cell-phone records indicated that at 5:52 p.m. he had begun to leave the Sandusky area and that by 7:06 p.m. he was in Michigan.
(¶ 6} Farris testified that on the day of the murder, a man had come to her house by mistake and told her he was looking for Harper. Farris called Harper to warn him of the stranger coming to his home, but according to Farris, Harper reassured her by saying, "[T]hat's my dude, he cool, he cool, good lookin' out." Phone records indicate that there was a call between Farris and Harper at 5:42 p.m. that day. Farris never heard from Harper again. She was able to give the police a description of the man who had come to her door the day of the murder, and she later picked Ricks's photo from a photo array. However, Farris was acquainted with every other person in the photo array.
Officer Steckel's Testimony
(¶ 7} Sandusky police located Gipson in Canton, Michigan, where he was in police custody for his alleged involvement in another crime. Two Sandusky officers and a detective went to Canton to interview him. The Sandusky police officers did not testify regarding anything that Gipson told them. However, Officer Michael Steckel of the Canton police department testified at the trial regarding statements that Gipson had made to him, and those statements are the focus of this case.
(¶ 8} Throughout the trial, Ricks attempted to have excluded as inadmissible Steckel's testimony regarding Gipson's statements identifying Ricks. Before the trial, Ricks's counsel filed a motion in limine regarding "any acts of allegedly Mr. Gipson pointing out this gentleman, Mr. Ricks, to police officers in Michigan." The court ruled: "[T]he identification procedure, the steps the officers took in their investigation would come in, and I'll give a curative instruction to the jury at that time, if you want." The trial court determined that that process would comply with State v. Blevins, 36 Ohio App.3d 147, 149, 521 N.E.2d 1105 (10th Dist.1987), which holds that "where statements are offered to explain an officer's conduct while investigating a crime, such statements are not hearsay."
(¶ 9} Steckel testified that the Sandusky police officers had interviewed Gipson before he had. Steckel subsequently learned from the Sandusky police that two people had been involved in killing Harper: Gipson and another man, who went by the name "Peanut." There was no testimony during the trial as to how the Sandusky police came up with the name "Peanut"; in a pretrial suppression hearing, a Sandusky police officer testified that Gipson had told the police that Peanut had killed Harper. No other witness testified that anyone named Peanut was in Sandusky either the day of the murder or the evening before.
(¶ 10} Steckel and Sergeant Pomorski of the Canton police department spoke with Gipson, who gave them a general physical description of Peanut. Steckel testified that he, Pomorski, and Gipson traveled by car to Ricks's neighborhood so that Gipson could point out Peanut's house. Gipson identified a house on Strathmoor Street as the place where Peanut was staying. By chance, Peanut was in front of the residence at that time. Steckel testified that Gipson had stated, " '[T]hat's Peanut.' " Steckel testified that he had been concerned that Peanut might see Gipson in the vehicle and that Gipson, who was "upset and * * * scared" upon seeing Peanut, had dropped down in the seat so that Peanut could not see him. The officers and Gipson were unable to locate Peanut upon subsequent passes through the neighborhood.
(¶ 11} Steckel testified that he and Pomorski were able to identify "Peanut" as Thomas Ricks by making a telephone call to the address where they had seen him. Steckel was then able to obtain a photograph of Ricks from another jurisdiction. He testified that he had taken that photograph to Gipson in his cell and that Gipson had said, " '[T]hat's Peanut.' " Steckel then forwarded the photograph to the police in Sandusky, and they used it in a photo array they presented to witnesses.
(¶ 12} After Steckel's testimony regarding Gipson's statements identifying Ricks as Peanut, to which Ricks had objected, the trial judge gave a limiting instruction to the jury:
Ladies and gentlemen of the jury, one of the things that you just heard a few seconds ago from the State was-was hearsay, and there's a concern all the time that statements are made outside of Court and that actual person doesn't come into Court and testify and is not subject to cross examination. There are certain exceptions in the law and that deals with the Evidence Rules that I spoke about yesterday, that we have to comply with those rules.
Sometimes in allowing in information such as that, information that comes in from someone that (inaudible) testify in open Court, there's a purpose for that, and in this case the evidence about Mr. Gipson going with police detectives and, first off, pointing out a residence; second, pointing out the person on the street known as Peanut, and saying that's Peanut, and then later showing the photograph to Mr. Gipson and him saying that's Mr. Ricks, all those are not for the truth of the matter asserted. In other words, they don't necessarily mean that that was Peanut, that man walking down the street, that that was the residence he lived at or that's the photograph, but they're really brought in for the purpose to explain this officer or that department's investigation, why they were doing what they were doing, and the State has laid a foundation, what was your purpose of going out there and those kinds of things. So understand when you're hearing this testimony that it's to describe this officer and that department's investigation in conjunction with the Sandusky Police Department.
Verdict and Appeal
(¶ 13} The jury found Ricks guilty of one count of aggravated murder, in violation of R.C. 2903.01(A), one count of aggravated murder, in violation of R.C. 2903.01(B), one count of aggravated robbery, in violation of R.C. 2911.01(A)(1), one count of complicity to trafficking in marijuana in the vicinity of school premises, in violation of R.C. 2925.03(A)(1) and (C)(3)(c) and R.C. 2923.03, and one count of complicity to trafficking in cocaine in the vicinity of school premises, in violation of R.C. 2925.03(A)(1) and (C)(4)(e) and R.C. 2923.03. The trial judge sentenced Ricks to an aggregate term of imprisonment for life without parole, plus 26 years.
(¶ 14} Ricks appealed. The court of appeals vacated Ricks's convictions for complicity to trafficking in cocaine and marijuana, finding insufficient evidence to support them. 196 Ohio App.3d 798, 802, 2011-Ohio-5043, 965 N.E.2d 1018, ¶ 70-96, 102 (6th Dist.). Further, the court agreed with the parties that Ricks's firearm-specification convictions should have merged for the purposes of sentencing, and it therefore ordered the trial court to resentence Ricks as to those specifications. Id . at ¶ 97.
(¶ 15} However, the appellate court overruled Ricks's argument that the trial court's admission of Gipson's statements through the testimony of Officer Steckel violated Ricks's rights under the Confrontation Clause. The court noted that the trial court had relied upon State v. Blevins, 36 Ohio App.3d 147, 521 N.E.2d 1105, in ruling that Steckel's testimony was admissible. Ricks at ¶ 67. The court also cited State v. Williams, 10th Dist. Franklin Nos. 02AP-730 and 02AP-731, 2003-Ohio-5204, another case in which the court allowed a police officer to testify regarding the out-of-court statement of a declarant because the statement involved was offered to explain why officers had acted the way they had rather than for the truth of the matter asserted. Ricks at ¶ 68. The appellate court in this case concluded:
In the present case, we have a co-defendant who identified an individual he believed to be Peanut. There is no evidence that Gipson used the opportunity to exonerate himself and implicate appellant. Once Peanut was identified as appellant, the Sandusky officers were able to compile a photo array. Further, the court issued a lengthy curative instruction to ensure that the jury properly interpreted the testimony. Finally, Gipson was made available for ...