An Ohio appeals court ordered a new trial for a Dayton-area woman sentenced to life without parole who was accused of manipulating her then 10-year-old stepson into shooting his father to death, and plotting to cover it up to collect life insurance.

The Third District Court of Appeals on March 28 reversed Judith Hawkey’s sentence from a Defiance County Common Pleas Court in 2013. Hawkey was charged with the murder of her ex-husband Robert Breininger after his son, Corey Breininger, revealed to a teacher nearly a decade after the shooting that it wasn’t an accident. Corey told the teacher he was forced to kill his father by his stepmother.

Writing for the Third District, Judge John R. Willamowski wrote the evidence of guilt in the case wasn’t overwhelming and the testimony of three witnesses, the teacher who reported the accusation by Corey about Hawkey and two psychologists, shouldn’t have been admitted and tainted the outcome.

“The shooting was ruled an accident based solely upon Corey’s statements to the police despite the contradictory physical evidence,” he wrote. “Nine years later, Corey changes his story and indicates for the first time that the shooting was intentional and that he did it because he was forced to do so by Hawkey. All of the evidence is based upon the statements of one person, Corey.”

Cause of Death Changed 10 Years Later
In 2003, Hawkey was taking her two other children to a relative while Corey stayed home with his father, who worked evenings and was resting on a bed when Corey shot him in the head with a shotgun. Corey called 9-1-1 to alert them to the accident at their Mark Center home in Defiance County, and told the investigating sheriff’s deputies he accidentally shot his father. The death was ruled accidental, but in March 2012, Lauren Beck, a former teacher of Corey’s, reported to police the Corey told her Hawkey physically and emotionally abused and forced him to shoot his father.

In March 2013, Hawkey was indicted on one count of aggravated murder, four counts of child endangering, and one count of insurance fraud. Prior to the trial, Hawkey’s defense attorneys sought to exclude the evidence of Dr. Barbara Knox, arguing her testimony included the conclusion that Corey was the victim of “child torture, ” which wasn’t supported scientifically or medically under the standards set by the U.S. Supreme Court in its 1993 Daubert v. Merrell Dow Pharmaceuticals, Inc. decision. However, the trial court never ruled on the motion, and Knox was allowed to testify as part of the state’s case, which included 24 other witnesses.

The jury convicted Hawkey on all counts, and the court sentenced her to life in prison without the possibility of parole for the aggravated murder charge and an additional 20 years for the child endangerment and insurance fraud charges to run consecutively with the murder sentence.

Hawkey appealed the sentence claiming among other things that the trial court abused its discretion in allowing Knox’s testimony. Hawkey also claimed the court shouldn’t have admitted the testimony of Beck and a psychologist because it was hearsay that played a critical role in leading to her conviction.

Influential Testimony Questioned
Beck testified she was Corey’s teacher when he was 7 and had observed what she thought might be signs of abuse, but didn’t report them to police. Corey spotted her at a sporting event nearly 10 years later and told her that he was abused by Hawkey, who forced him to shoot his father. Beck didn’t immediately report the allegations to police.

Psychologist Ann Salter testified that she interviewed Corey at the request of prosecutor and diagnosed him with post-traumatic stress disorder. She said her diagnosis was based on what Corey told her and information he told others who interviewed him. On cross-examination, Salter acknowledged she did not treat people or provide therapy, and she didn’t review any of Corey’s medical records to verify claims of physical abuse.

Knox, a board-certified child abuse pediatrician, testified that Corey was the victim of child torture, which she described as an extreme form of child abuse that includes multiple types of physical and psychological abuse and neglect. Knox said Corey told her Hawkey forced him to eat his own feces, and dog feces, would isolate him for hours, and threatened to kill him if he didn’t kill his father.

On cross-examination, Knox acknowledged there was no scientifically accepted definition of child torture, and that it was an idea she had formulated and presented to the medical community as a theory to be adopted.

Child psychologist Phillip Esplin testified on Hawkey’s behalf and questioned whether Corey had accurate memories of incidents more than 10 years before. He also noted that Corey’s claims were similar to the story line of a book called “A Child Called It,” which described the life of a boy treated like a slave by his mother, tortured, and forced to suffer harsh treatment. Esplin noted several similarities including the child in the book being forced to eat feces and eat from a dog bowl.

Appeals Court Rejects Testimony
Hawkey’s attorneys sought to have Beck’s testimony excluded as hearsay, but prosecutors sought to keep it claiming it was “an excited utterance,” which is an exception to the hearsay rule. Judge Willamowski explained the Ohio Supreme Court set a four-part test on whether a statement can be admitted as an excited utterance that included requiring the statement to be made with a nervous excitement that would make it unlikely the person had time to develop a misleading statement. The Court has not set a specific length of time between when the incident happens and the excited utterance is made, but Judge Willamowski noted in the cases where it has been permitted, the statement took place within several hours of an incident.

“Beck testified that Corey was very upset and because of his being upset, the trial court allowed the testimony to enter as an excited utterance. However, the trial court did not consider whether there had been time for Corey to calm down and reflect on what had happened,” he wrote. “The facts in this case are that Corey had nine years to reflect on the shooting of Robert.”

Judge Willamowski ruled the length of time and the lack of reliability of Corey’s statement to Beck made it a mistake for the trial court to allow Beck to relay what Corey told her.

Prosecutors responded to objections to Salter’s testimony arguing she can report what Corey told her because of the exception to the hearsay rule for statements made for the purpose of medical treatment. Judge Willamowski noted Salter testified she doesn’t treat patients, and that the statements were made to her as part of the state’s investigation into the allegations. Noting the “evidence supporting the convictions was not overwhelming,” Judge Willamowski ruled the statements by Beck and Salter were inadmissible hearsay statements that prejudiced Hawkey.

Regarding Knox, Judge Willamowski explained that for her to claim Corey was the victim of child torture, she had to prove her theory was an accepted formal, medical definition. Knox testified she had submitted it for review, but it hasn’t been adopted by the medical community, and the Third District found the testimony shouldn’t have been admitted.

Based on those errors, the Third District ordered a new trial.

Judges Richard M. Rogers and Vernon L. Preston concurred in the decision.

State v. Hawkey, 2016-Ohio-1292
http://www.supremecourt.ohio.gov/rod/docs/pdf/3/2016/2016-Ohio-1292.pdf
Criminal Appeal from: Defiance County Common Pleas Court
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: March 28, 2016

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