CRIMINAL
APPEAL FROM HAMILTON MUNICIPAL COURT Case Nos. 16CRB01150 and
16CRB01151
Neal
D. Schuett, city of Hamilton prosecutor, for
plaintiff-appellee.
Christopher P. Frederick, for defendant-appellant.
OPINION
M.
POWELL, J.
{¶
1} Defendant-appellant, Wendell Proffitt, appeals
his convictions in the Hamilton Municipal Court for domestic
violence.
{¶
2} Appellant was charged with one count of domestic
violence in violation of R.C. 2919.25(A), a m isdemeanor of
the first degree, arising from an incident on January 11,
2016, and a separate count of domestic violence in violation
of R.C. 2919.25(C), a misdemeanor of the fourth degree,
arising from an incident on March 26, 2016. The alleged
victim of the offenses was Jennifer Morris
("Jennifer"), appellant's wife, with whom he
was residing at the time of the incidents. Appellant entered
pleas of not guilty and the charges proceeded to a bench
trial. At trial, the state called Jennifer and Hamilton
Police Officer Danielle Sorber as witnesses. The state
offered into evidence two separate statements Jennifer had
written concerning the January 11, 2016 incident and the
March 26, 2016 incident. The statements were written on
Hamilton Police Department statement forms (the two
statements will be respectively referred as the January
Statement and the March Statement, and collectively as
"the Statements"). Appellant testified on his own
behalf.
{¶
3} Officer Sorber testified that on January 11,
2016, she responded to a residence on Ross Avenue in
Hamilton, Ohio upon report of a fight. Upon arrival, the
officer found Jennifer and Jennifer's mother. Appellant
was not present. Officer Sorber observed red marks on the
right side of Jennifer's face consistent with fingernail
scratches. The officer denied independent knowledge of how
the scratches on Jennifer's face originated and
acknowledged they could have been self-inflicted. The officer
observed no other visible signs of injury or struggle upon
Jennifer's person. Jennifer reported to Officer Sorber
what had occurred. During the officer's investigation, it
was discovered that Jennifer was subject to an outstanding
warrant for "dog tags." Consequently, Officer
Sorber arrested Jennifer and took her to the police station
for booking and then to the county jail. During the booking
process, Officer Sorber obtained the January Statement from
Jennifer regarding what had transpired between Jennifer and
appellant on January 11, 2016. The January Statement stated
that appellant had accused Jennifer of cheating on him, began
screaming at her, dug his fingernails into the right side of
her face, and choked her. Officer Sorber stated that the
January Statement was consistent with what Jennifer had told
her about the incident at the scene.
{¶
4} Jennifer testified that she and appellant were
residing with their son at the Ross Avenue home on January
11, 2016. Jennifer stated that she and appellant "did
argue a little bit" on that day, but that she did not
remember if the argument became physical. Jennifer denied any
recollection of making the January Statement. Upon being
shown the statement, she acknowledged that it contained her
handwriting and signature. She confirmed that the Hamilton
Police Department statement form upon which the statement was
written provided above her signature that the statement was
true when it was made. However, when asked if the January
Statement was true when she made it, Jennifer replied,
"I'm not sure." Explaining, Jennifer stated
that she has severe anxiety and that "my panic disorder
makes everything seem a lot worse than it is."
{¶
5} At this juncture, the state moved the trial court
to allow the January Statement to be read into evidence
pursuant to Evid.R. 803(5), the recorded recollection
exception to the hearsay rule. Defense counsel had no
objection and the trial court directed Jennifer to read the
January Statement.
{¶
6} On cross-examination, Jennifer denied any memory
of what occurred on January 11, 2016, admitted that she
"over exaggerates sometimes, " and twice testified
that she did not believe the January Statement reflected what
happened. Jennifer acknowledged she understood it is
important to be truthful when speaking with the police and
that she tried to be truthful with them.
{¶
7} By March 26, 2016, Jennifer, appellant, and their
son had moved to a residence on Forrest Avenue in Hamilton,
Ohio. Jennifer stated that she and appellant had a verbal
altercation that day over a photograph depicting Jennifer and
a friend. The photograph upset appellant and he again accused
Jennifer of cheating on him. Jennifer denied any recollection
of appellant threatening her on that day. She recalled the
police responded to her home after being called by appellant.
Jennifer believed she made a written statement concerning her
television being broken. Jennifer did not remember how the
television was broken, but believed appellant must have
broken it because she did not break it herself and only she
and appellant were home at the time. Jennifer was then shown
the March Statement. She did not recognize the March
Statement but acknowledged it was in her handwriting and
contained her signature, and that the Hamilton Police
Department statement form provided above her signature that
the statement was true when it was made.
{¶
8} At this juncture, the state apparently moved the
trial court to allow Jennifer to read the March Statement
into evidence pursuant to Evid.R. 803(5). Once again, defense
counsel made no objection and the trial court directed
Jennifer to read the March Statement. In the March Statement,
Jennifer wrote that appellant had threatened to kill her when
she asked him to leave the home after appellant had thrown
the television into the wall.
{¶
9} On cross-examination, Jennifer denied
recollection of writing the March Statement. Jennifer stated
that appellant could have threatened to kill her, but that
she had no specific recollection of such a threat.
{¶
10} The state rested, and without objection, the
Statements were admitted into evidence. The trial court
subsequently denied appellant's Crim.R. 29 motion for
acquittal.
{¶
11} Appellant testified and admitted that he and
Jennifer have a tumultuous marriage, involving frequent
arguments and sometimes pushing and punching each other.
However, appellant specifically denied scratching and choking
Jennifer on January 11, 2016, and threatening to kill her on
March 26, 2016. Appellant stated the only threat he made on
March 26, 2016, was to end the marriage if Jennifer's
behavior continued. Appellant testified he left the premises
on March 26, 2016, because "it was best for me to leave
until she got * * * to a better place." Appellant
further testified he called the police on March 26, 2016, to
protect himself due to "other cases that [Jennifer] made
against me."
{¶
12} After the close of the evidence and following
closing arguments by the state and defense counsel, the trial
court considered the evidence and stated,
When [Jennifer] testified here today, um - she testified
about what she said was some kind of unusual medical
condition that she has where she can't remember things
and over exaggerates things so much though she's on
disability for it. * * * And I think that she said that today
because she was trying to explain why she was lying here
today and I felt like she was clearly lying everywhere that
she could here today. Um - because she's trying not to
have the defendant be convicted and she's trying to help
the defendant. In this case we heard statements that the
defendant made to the police the day that these incidents
happened and to the extent that these statements can be
verified. Well, there were marks on her face and they were
scratch marks on her face and says what she said in the
statement. The statement seemed to me the written statement
seemed to me to be truthful renditions of what happened close
in time to when they happened and based on both of these
statements I'm going to find the defendant to be Guilty
on both of these cases.[1]
{¶
13} Appellant appeals his convictions, raising three
assignments of error.
{¶
14} Assignment of Error No. 1:
{¶
15} MR. PROFFITT'S FEDERAL AND STATE
CONSTITUTIONAL RIGHTS TO DUE PROCESS AND FAIR TRIAL WERE
VIOLATED WHEN HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶
16} Appellant argues defense counsel was ineffective
at trial for failing to object to inadmissible hearsay
evidence, namely, defense counsel failed to object to
Jennifer reading the Statements into evidence and to allowing
the Statements to be admitted as exhibits.
{¶
17} To prevail on an ineffective assistance of
counsel claim, appellant must show his trial counsel's
performance was deficient, and that he was prejudiced as a
result. State v. Clarke, 12th Dist. Butler No.
CA2015-11-189, 2016-Ohio-7187, ¶ 49; Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052
(1984). Trial counsel's performance will not be deemed
deficient unless it fell below an objective standard of
reasonableness. Strickland at 688. To show
prejudice, appellant must establish that, but for his trial
counsel's errors, there is a reasonable probability that
the result of his trial would have been different.
Id. at 694. The failure to satisfy either prong of
the Strickland test is fatal to an ineffective
assistance of counsel claim. Clarke at ¶ 49.
Counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment. State v. Burns,
12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, ¶
7.
{¶
18} Before we address whether defense counsel's
failure to object to the Statements was ineffective
assistance of counsel, we first consider whether the
Statements qualified as a hearsay exception for recorded
recollection under Evid.R. 803(5).
{¶
19} Evid.R. 801(C) defines "hearsay" as
"a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted." A
"statement" is defined for hearsay purposes as
"(1) an oral or written assertion or (2) nonverbal
conduct of a person, if it is intended by the person as an
assertion." Evid.R. 801(A).
{¶
20} Pursuant to the above definitions, the
Statements were hearsay. The Statements were made by Jennifer
other than while testifying at trial, were assertions of what
had occurred on January 11, 2016, and March 26, 2016, and
were offered by the state to prove what occurred on those
days between Jennifer and appellant. The trial court
considered the Statements as substantive proof of what
occurred on January 11, 2016, and March 26, 2016.
{¶
21} Hearsay is generally inadmissible, unless it
falls within one of the numerous exceptions under Evid.R. 803
and 804. As pertinent to the instant case, Evid.R. 803(5)
provides a hearsay exception for recorded recollection:
A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient
recollection to enable him to testify fully and accurately,
shown by the testimony of the witness to have been made or
adopted when the matter was fresh in his memory and to
reflect that knowledge correctly. If admitted, the memorandum
or record may be read into evidence but may not itself be
received as an exhibit unless offered by an adverse party.
{¶
22} In order to admit a statement into evidence
under Evid.R. 803(5), a party must establish that (1) the
witness has a lack of present recollection of the recorded
matter, (2) the recorded recollection was made at a time when
the matter was fresh in the witness's memory, (3) the
recorded recollection was made or adopted by the witness, and
(4) the recorded recollection correctly reflects the prior
knowledge of the witness. State v. Scott, 31 Ohio
St.2d 1, 6 (1972); Dayton v. Combs, 94 Ohio App.3d
291, 300 (2d Dist. 1993). If Evid.R. 803(5) is satisfied, the
statement itself may be read into evidence. State v.
Trotter, 8th Dist. Cuyahoga No. 97064, 2012-Ohio-2760,
¶ 35.[2]
{¶
23} Under Evid.R. 803(5), the statement must
correctly reflect the knowledge the witness had at the time
it was recorded. Id. "[Evid.R. 803(5)] makes
explicit the requirement that the foundation for the
introduction of the statement under this exception must be
made by testimony of the witness himself." Evid.R.
803(5), Staff Notes; State v. Ross, 6th Dist. Huron
No. H-11-022, 2013-Ohio-1595, ¶ 17 ("The foundation
for the admission of such a statement under Evid.R. 803[5]
must be made through the testimony of the witness
himself"). Thus, the proponent of the statement must
produce affirmative proof, through the testimony of the
witness, that the statement correctly reflects the
witness's prior knowledge. The state failed in this
regard.
{¶
24} Jennifer testified she was "not sure"
if the January Statement accurately reflected what happened
on January 11, 2016, because her "panic disorder makes
everything seem a lot worse than it is." Jennifer
further testified she thought she had made a statement
concerning the March 26, 2016 incident, but did not recognize
the March Statement when it was presented to her at trial.
{¶
25} The state established through Jennifer's
testimony that the Statements were made in her handwriting
and that the Hamilton Police Department forms upon which she
had written the Statements provided above the signature line,
"I have read the statement and it is true and
correct."
{¶
26} However, Jennifer's mere acknowledgment that
the forms upon which the Statements were written contain the
aforementioned preprinted language does not satisfy the
requirement under Evid.R. 803(5) that the "testimony of
the witness" establish that the statement correctly
reflects the witness's prior knowledge. Jennifer never
testified that the Statements accurately reflected her prior
knowledge of the incidents, nor may her testimony be so
construed. Likewise, Jennifer's acknowledgment that the
Statements were made in her handwriting does not suggest that
they correctly reflect her prior knowledge of the incidents.
{¶
27} The trial court did not believe Jennifer's
testimony concerning the Statements. That is the trial
court's prerogative as the trier of fact and we should
defer to this determination. However, Jennifer's
unbelievable testimony that the Statements did not, or may
not, correctly reflect her prior knowledge of the incidents,
is not proof that the Statements correctly reflected her
prior knowledge. Rather, Jennifer's incredible testimony
leaves the issue unresolved. This does not satisfy the
affirmative foundational requirement under Evid.R. 803(5)
that the testimony of the witness show that the record
correctly reflects the witness's prior knowledge.
{¶
28} Furthermore, Evid.R. 803(5) is not satisfied by
Jennifer's expression of a general recognition of the
importance of being truthful with the police and that she
made an effort to do so.[3] Evid.R. 803(5) is clear that the
witness's testimony must affirmatively establish that the
statement correctly reflects prior knowledge of the witness.
Evidence extrinsic to the witness's testimony, even if it
tends to establish the trustworthiness of the statement, is
incompetent for purposes of determining admissibility under
Evid.R. 803(5).[4]
{¶
29} Based upon the foregoing, we find that the
Statements were not within the ambit of the Evid.R. 803(5)
hearsay exception. Had defense counsel objected to Jennifer
reading the Statements into evidence and to allowing the
Statements to be admitted as exhibits, the objection ought to
have been sustained and the Statements excluded.
{¶
30} We now consider whether defense counsel's
failure to object to the admission of the Statements ...