State v. Siler

• Decision Date: 25 October 2007
• Docket Number: No. 2006-0185.,2006-0185.
• Citation: 876 N.E.2d 534,116 Ohio St.3d 39,2007 Ohio 5637
• Parties: The STATE of Ohio, Appellant, v. SILER, Appellee.
• Court: Ohio Supreme Court

876 N.E.2d 534

116 Ohio St.3d 39

2007-Ohio-5637

The STATE of Ohio, Appellant, v. SILER, Appellee.

No. 2006-0185.

Supreme Court of Ohio.

Submitted June 5, 2007.

Decided October 25, 2007.

Ramona Francesconi Rogers, Ashland County Prosecuting Attorney, and Joyce Anderson, Assistant Prosecuting Attorney, for appellant.

David H. Bodiker, Ohio Public Defender, and Jill E. Stone and Craig M. Jaquith, Assistant Public Defenders, for appellee.

Alice Anna Phillips, urging reversal for amicus curiae, American Prosecutors Research Institute.

O'DONNELL, J.

{¶ 1} The state of Ohio appeals from a decision of the Ashland County Court of Appeals that reversed Brian Siler's convictions for aggravated murder and five other offenses and held that the admission of hearsay statements of his three-year-old son at his trial denied him his Sixth Amendment right to confront witnesses against him because his child did not testify at trial and because he had no prior opportunity to cross-examine him.

{¶ 2} The focus of this appeal concerns whether a child's statements made in the course of a police interrogation to a sheriff's deputy should be considered testimonial or nontestimonial, as explained in Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, Davis v. Washington (2006), ___ U.S. ___, 126 S.Ct. 2266, 165 L.Ed.2d 224, and State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834. After careful review, we have concluded that the statements made to the deputy sheriff were testimonial because the circumstances objectively indicate that no ongoing emergency existed and that the primary purpose of the police interrogation was to establish past events potentially relevant to a later criminal prosecution. Accordingly, we affirm the decision of the court of appeals.

Facts and Procedural History

{¶ 3} Brian and Barbara Siler married in 1988 and had one child, Nathan, born in July 1998. In June 2001, Brian discovered that Barbara had been having an affair with one of her co-workers. In the ensuing weeks, Barbara placed several 911 calls to sheriff's deputies due to arguments with Brian. No criminal charges arose from these calls, but Barbara frequently expressed her fear of Brian to friends and family.

{¶ 4} On July 30, 2001, after an incident in which Brian allegedly choked her, Barbara obtained a civil protection order that required Brian to surrender his house keys and garage door openers and to stay at least 300 feet away from her; it also established a schedule for him to visit Nathan, who continued to live with Barbara. As a result, Brian moved in with his brother and sister-in-law, who lived about five or six miles away. Barbara subsequently filed for divorce, and Brian told several people that he wanted to hurt her as much as she had hurt him.

{¶ 5} On September 20, 2001, Duane Keener, Barbara's father, received a phone call from Barbara's employer, the accounting firm of Whitcomb & Hess, expressing concern that she had not reported to work that day. After unsuccessfully trying to reach her by phone, Keener drove to her house. Upon arrival, he looked through the garage window, noticed that the door to her van was open, and discovered that he could open the side door to the garage by pushing on it. He entered and continued into the house but did not see anyone. Growing worried, he went back outside and called 911.

{¶ 6} Deputy Ron Singleton and Captain Richert of the Ashland County Sheriff's Office responded to the 911 call and met him around 2:00 p.m. They went into the garage and found Barbara Siler's body hanging from a yellow cord tied to the track of the overhead garage door. The Ashland County Coroner, Dr. William Emery, later estimated that her death occurred eight to ten hours earlier, sometime between 4:00 and 6:00 a.m. that morning.

{¶ 7} Singleton continued into the house by himself and discovered three-year-old Nathan asleep in one of the bedrooms. Upon waking him, he carried Nathan outside through the garage to his grandfather, shielding the child from any view of his mother.

{¶ 8} Detective Larry Martin, a trained child interviewer, arrived shortly thereafter wearing plain clothes with a vest that concealed his badge and gun. While Nathan sat on his grandfather's lap, Martin lay next to them on the ground and began talking to Nathan. Nathan eventually began to ask for his mother and to go back into the house; according to Martin, Nathan also said that his mother was in the garage "sleeping standing." As a result of the questioning, Martin learned that Nathan's father, Brian, had been there the previous night, that he had scared Nathan by banging on the door, and that he had fought with Barbara in the garage. Nathan also told Martin that Brian had placed the yellow rope around her neck.

{¶ 9} The state indicted Brian Siler in December 2001 on two counts of aggravated murder with death-penalty specifications, two counts of domestic violence, and single counts of endangering children, aggravated burglary, and violation of a protection order. He pleaded not guilty, and a trial commenced in May 2002. As part of its case-in-chief, the state called Deputy Singleton and Detective Martin to testify about Nathan's statements, and, over Siler's repeated objections, the trial court admitted the testimony as excited utterances pursuant to Evid.R. 803.

{¶ 10} On direct examination, Singleton testified that when he carried Nathan from the house, he asked Nathan, "Was daddy here today?" to which Nathan answered "no," and he testified that Nathan told him to "[f]ind mommy," pointing to the garage. On cross-examination, Singleton stated that Nathan did not cry or resist at any point.

{¶ 11} Martin testified that he had been briefed upon his arrival at the scene and before he began speaking with Nathan. He stated that when interviewing a child, he would "attempt to identify what information the child might have as to what had happened." He further testified that when he asked Nathan if anything had scared him the night before, Nathan responded, "Daddy did" by "[k]nocking loudly," and jumped up and demonstrated by banging on the front door. Martin stated that he asked if anything else had scared Nathan and that Nathan answered, "Daddy, mommy fighting" in the garage.

{¶ 12} Martin also testified that 30 to 45 minutes into his questioning, Nathan said that he was hungry and thirsty, and Martin arranged for him to have lunch with Terrie Cato, a nurse employed by the Ashland County Sheriff's Office and a friend of Barbara and Brian Siler.

{¶ 13} Martin further stated that when they returned from lunch, he again spoke with Nathan, this time in the presence of Jenny Taylor, a children's services investigator who had arrived at the scene. He asked "if anyone was hurting mommy," to which Nathan responded, "Daddy did." Using a teddy bear that had been brought to the scene, Martin asked Nathan to demonstrate how daddy had hurt mommy, but Nathan did not respond. Martin then placed Taylor in different holds, asking Nathan, "Was this how daddy was hurting mommy?" When he placed his arm around the investigator's shoulder from behind, Nathan told him to move his arms up. Martin demonstrated, and Nathan said, "yes," and began crying; until this point in the interrogation, Martin stated, the child had not seemed nervous, upset, or in any distress. Nathan told Martin that "the yellow thing" held mommy upright in the garage, and, when Martin asked who put the yellow thing on her, the child responded, "Daddy." Martin did not question him further.

{¶ 14} Among other witnesses, the state also called Dr. Andrea McCollom, a forensic pathologist, who testified that Barbara's body displayed injuries that were inconsistent with suicide; rather, in her opinion, Barbara had been hanged after she had died from injuries caused by cervical compression consistent with a choke hold applied from behind.

{¶ 15} At the conclusion of the guilt phase of the trial, the jury found Siler guilty of all counts and specifications and, after the penalty phase, unanimously recommended the death penalty. However, the court rejected the recommendation and instead imposed a sentence of life imprisonment without parole.

{¶ 16} Siler then appealed to the Ashland County Court of Appeals and raised several assignments of error, including a Sixth Amendment challenge to the admission of Nathan's statements to Martin. The appellate court overruled that assignment of error, determined that Nathan's statements were admissible as excited utterances pursuant to Evid.R. 803(2), and affirmed the convictions. State v. Siler, Ashland App. No. 02-COA-028, 2003-Ohio-5749, 2003 WL 22429053. We denied review of his appeal. State v. Siler, 101 Ohio St.3d 1489, 2004-Ohio-1293, 805 N.E.2d 539.

{¶ 17} Siler then appealed to the United States Supreme Court, which granted certiorari, vacated the judgment of the court of appeals, and remanded the case with instructions to reconsider the Sixth Amendment issue in light of Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. Siler v. Ohio (2004), 543 U.S. 1019, 125 S.Ct. 671, 160 L.Ed.2d 494. On remand, the appellate court reversed Siler's convictions and remanded for a new trial, holding that Nathan's statements to Detective Martin were testimonial and that their admission during trial violated Siler's Sixth Amendment right to confront witnesses against him, stating, "there is presently no cognizable dispute concerning whether the child was unavailable * * * and whether defense counsel was given a prior opportunity to cross-examine him." State v. Siler, 164 Ohio App.3d 680, 2005-Ohio-6591, 843 N.E.2d 863, ¶ 49. The appellate court explained, "Martin's questioning of Nathan, although resulting in allowable `excited utterances' under the Ohio Rules of Evidence, was nonetheless a structured police interrogation as envisioned in Crawford, and therefore constituted testimonial...