Two "confrontation clause" cases are among seven to be heard by the Ohio Supreme Court on January 22 and 23.

Two "confrontation clause" cases are among seven to be heard by the Ohio Supreme Court on January 22 and 23.

The Supreme Court of Ohio will hear oral arguments on Wednesday January 23 in  two cases involving criminal defendants' right under the Sixth Amendment of the U.S. Constitution to confront and cross-examine witnesses against them.

The court’s Office of Public Information today released previews of those cases and five others that will be argued before the justices on January 22 and 23.

In State v. Ricks,  Thomas Ricks and  another man, Aaron Gipson, were convicted of the March 2008 drug-related robbery and murder of Calvin Harper in Harper’s apartment in Sandusky. The two defendants exercised their right to be tried separately.  At Ricks’ trial, the state did not call Gipson as a witness, but introduced testimony by a police officer that Gipson had identified Ricks as the person who had been with him on the day before the murder.

Ricks’ attorney objected to the officer’s testimony about the identification as inadmissible “hearsay,” arguing  that the officer had no first-hand knowledge about the identity of the man who had accompanied Gipson, and that the state was using his testimony to  inform the jury about Gipson’s identification of Ricks without giving defense counsel the opportunity to confront and cross-examine Gipson to challenge his reliability and raise questions about his self-interest in incriminating Ricks.  The trial judge overruled the objection, but instructed the jury not to consider the officer’s testimony as evidence that Gipson’s identification of Ricks was accurate, but merely as an explanation of why the police had investigated and ultimately charged Ricks.

Ricks was convicted of aggravated murder, aggravated robbery and other charges, and was sentenced to life imprisonment without the possibility of parole plus an additional 26 years. On review, the Sixth District Court of Appeals ruled that in light of the trial court’s limiting instruction to the jury, the admission of Steckel’s testimony about what Gipson told him did not violate Ricks’ rights under the confrontation clause. The Supreme Court has agreed to review the Sixth District’s decision.

In the other confrontation clause case to be argued, State v. Clark, after two preschool teachers questioned a three-year-old student, identified as L.P., about welt marks on his face, the child made several contradictory statements and then indicated that the marks had been caused by “Dee,” which was the name he used to refer to his mother’s live-in boyfriend, Darius Clark.  The preschool notified child welfare authorities, who began an investigation that resulted in multiple criminal child abuse charges against Clark involving both L.P. and his younger sister.  In the course of that investigation, L.P. was questioned by two social workers and a police officer, and made statements to each of them indicating that “Dee” had caused his most recent injuries and had injured him in the past.

Prior to Clark’s trial on the abuse charges, the judge interviewed L.P. and determined that he was not competent to testify in court about his injuries or Clark’s identity as his abuser. Clark filed motions asking the court to bar any testimony at trial by the preschool teachers, the social workers, or the police officer about statements that L.P. had made to them, on the basis that Clark would have no opportunity to confront or cross-examine L.P.in court, and thus no chance to challenge the reliability of his statements to the adults. The trial judge overruled Clark’s objections, ruling that the adult witnesses could testify about L.P.’s statements to them because the child did not intend for his statements to be used as evidence in a criminal proceeding, and they therefore fell under an exception to the hearsay rule for non-testimonial statements.

After Clark was convicted and sentenced to prison terms totaling 28 years, he appealed the trial court’s denial of his motion to bar testimony by the adult witnesses recounting L.P.’s out-of-court statements. The Eighth District Court of Appeals reversed Clark’s convictions and ordered that he receive a new trial.  The court of appeals held that L.P.’s statements to the teachers and other adults had been solicited for the purpose of obtaining information about and aiding in the prosecution  of suspected criminal conduct, and were therefore testimonial statements that could not be admitted via hearsay testimony in a case where the defendant was unable to confront and cross-examine the person who was the actual source of the statements. The state sought and was granted Supreme Court review of the specific issue of whether a child’s statements to a teacher disclosing abuse are testimonial in nature.

Other cases to be argued on January 23 include:

• State v. Smith, in which the court is asked to determine whether a defendant can be convicted of violating a civil protection order under R.C. 2919.27 without a showing that  a copy of the protection order was delivered to the defendant prior to the alleged violation.
• Armstrong v. Jurgensen, which questions whether a change in the state workers’ compensation law  enacted in 2006 1) allows a claimant to receive benefits for a psychological injury resulting from a workplace accident as long as the claimant also suffered some physical injury in the accident, or 2) limits recovery for a psychological injury only to cases in which the claimant shows that his or her psychological injury was caused by a physical injury that the claimant suffered in the same accident.

The court will also hear arguments in three cases on Tuesday, January 22:

• In State v. Griffin, the court is asked to decide whether an amended sentencing entry in a criminal case to correct a clerical omission in the original entry triggers a new opportunity for the defendant to appeal all aspects of her convictions and sentence, even though the same issues have been addressed and adjudicated in a  previous appeal.
• In State v. Graham, the court will consider whether, when a public employee is compelled to fully and truthfully answer all questions posed to him by the Ohio Inspector General’s Office in an administrative investigation, and the alternative is possible termination from employment, those statements are inadmissible against the employee in a subsequent criminal prosecution pursuant the U.S. Supreme Court’s decisions Garrity v. New Jersey and Kastigar v. U.S.
• State v. Deanda questions whether a trial court properly instructed the jurors in a criminal case that they could find a defendant who was indicted only for attempted murder guilty of “serious physical harm” felonious assault under Ohio Revised Code Section 2903.11(A)(1) as a lesser included offense of the attempted murder charge.