State v. Clark

• Decision Date: 30 October 2013
• Docket Number: No. 2012–0215.,2012–0215.
• Citation: 137 Ohio St.3d 346,999 N.E.2d 592
• Parties: The STATE of Ohio, Appellant, v. CLARK, Appellee.
• Court: Ohio Supreme Court

137 Ohio St.3d 346

999 N.E.2d 592

The STATE of Ohio, Appellant,

v.CLARK, Appellee.

No. 2012–0215.

Supreme Court of Ohio.

Submitted Jan. 23, 2013

Decided Oct. 30, 2013

Affirmed.

O'Connor, C.J., filed a dissenting opinion, in which Lanzinger and French, JJ., concurred.

Syllabus of the Court

1. At a minimum, when questioning a child about suspected abuse in furtherance of a duty pursuant to R.C. 2151.421, a teacher acts in a dual capacity as both an instructor and as an agent of the state for law-enforcement purposes.

2. Statements elicited from a child by a teacher in the absence of an ongoing emergency and for the primary purpose of gathering information of past criminal conduct and identifying the alleged perpetrator of suspected child abuse are testimonial in nature in accordance with Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534.

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Mark J. Mahoney, Assistant Prosecuting Attorney, for appellant.

Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin and Erika B. Cunliffe, Assistant Public Defenders, for appellee.

Michael DeWine, Attorney General, and Alexandra T. Schimmer, Solicitor General, and Samuel Peterson, Assistant Attorney

General, for amicus curiae Ohio Attorney General, in support of appellant.

Timothy Young, Ohio Public Defender, and Jeremy J. Masters, Assistant Public Defender, for amicus curiae Ohio Public Defender, in support of appellee.

O'DONNELL, J.

{¶ 1} The issue in this case is whether the trial court violated Darius Clark's constitutional right to confront the witnesses against him when it admitted a hearsay statement that three-and-a-half-year-old L.P. made to his preschool teacher, Debra Jones, in response to questions asked about injuries to his eye and marks on his face observed upon his arrival at a preschool day care.

{¶ 2} In Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the court enunciated the primary-purpose test to determine whether a statement made to a law-enforcement officer or an agent of law enforcement in the course of an investigation is testimonial or nontestimonial.

{¶ 3} We adopted that test in State v. Siler, holding:

“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, paragraph one of the syllabus, quoting Davis at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224.

{¶ 4} At the time Jones questioned L.P., she acted as an agent of the state for purposes of law enforcement because at a minimum, teachers act in at least a dual capacity, fulfilling their obligations both as instructors and also as state agents to report suspected child abuse pursuant to R.C. 2151.421, which exposes them to liability if they fail to fulfill this mandatory duty. Because the circumstances objectively indicate that no ongoing emergency existed and that the primary purpose of the questioning was to establish or prove past events potentially relevant to a later prosecution, the statement L.P. made to his preschool teacher is testimonial in nature, and its admission into evidence violated Clark's right to confront witnesses under the Sixth Amendment to the United States Constitution.

{¶ 5} Accordingly, we affirm the judgment of the court of appeals.

Factual and Procedural History

{¶ 6} Darius Clark lived with his girlfriend, T.T., her three-year-old son, L.P., and her two-year-old daughter, A.T. On March 17, 2010, Clark dropped off L.P. at the William Patrick Day Head Start Center in Cleveland. While in the center's lunchroom, one of L.P.'s preschool teachers, Ramona Whitley, observed that L.P.'s left eye appeared bloodshot and bloodstained. She asked him, “What happened?” and L.P. at first said nothing but then replied, “I fell.” Whitley asked, “How did you fall and hurt your face?” and L.P. answered, “I fell down.”

{¶ 7} On arriving in the brighter light of the classroom, Whitley looked again at L.P. and saw “[r]ed marks, like whips of some sort” on L.P.'s face. Whitley, “in shock,” got the attention of the class's lead teacher, Debra Jones.

{¶ 8} When Jones saw L.P.'s eye, she said, “He needs to go to Ms. Cooper, my supervisor. After I looked at him, I said, you know, I'm going to take him to Ms. Cooper.” Jones then asked, “Who did this? What happened to you?” L.P. “seemed kind of bewildered. He said something like Dee, Dee.” Jones described L.P. as “Out. Staring out. And I was asking him—he almost looked uncertain, but he said, Dee.” Because L.P. had only attended the school for a short time, Jones could not be certain that the child understood her questions. Jones escorted L.P. to the school office. She testified that when the supervisor, Cooper, observed L.P.'s injuries, she said, “Whoever seen [sic] him first got to make the call.” As a result, Whitley called 696–KIDS and made a report of suspected child abuse.

{¶ 9} In response, the Cuyahoga County Department of Child and Family Services (“CCDCFS”) sent a social worker to the school to question L.P. Clark arrived at the school while the social worker was questioning L.P. and denied responsibility for L.P.'s injuries. Clark then left with the child.

{¶ 10} The next day, a social worker located T.T.'s children at the home of Clark's mother and took them to the hospital. A physician determined that L.P. had bruising in various stages of development and abrasions consistent with having been struck by a linear object and that A.T. had bruising, burn marks, a swollen hand, and a pattern of sores at her hairline. The physician suspected child abuse and estimated that the injuries occurred between February 28 and March 18, 2010.

{¶ 11} A grand jury indicted Clark on one count of felonious assault relating to L.P., four counts of felonious assault relating to A.T., two counts of endangering children, and two counts of domestic violence. The trial court declared L.P. incompetent to testify but denied Clark's motion in limine to exclude L.P.'s out-of-court identification statements. Seven witnesses testified regarding the statements made by L.P.: Jody Remington, a Cleveland police detective; Sarah Bolog, a CCDCFS social worker; Howard Little, a CCDCFS intake social worker; Whitley and Jones; the children's maternal grandmother; and the children's maternal great-aunt. Unexplained in this record, and highlighted by the court of appeals in its opinion, is that the trial court declared L.P. incompetent to testify at the time of trial, yet it permitted testimony about statements this incompetent three-and-a-half-year-old child made to his teachers six months earlier. The jury found Clark guilty of all charges, except for one count relating to A.T., and the court thereafter sentenced Clark to an aggregate 28–year prison term.

{¶ 12} Clark appealed, claiming that the trial court violated his right to confrontation by allowing witnesses to testify about the statements L.P. made to his preschool teachers. The court of appeals held that the trial court abused its discretion when it permitted Detective Remington, Bolog and Little (the social workers), and Whitley and Jones (the preschool teachers) to testify regarding L.P.'s statements, because they were testimonial and their admission violated the Confrontation Clause. State v. Clark, 8th Dist. Cuyahoga No. 96207, 2011-Ohio-6623, 2011 WL 6780456, at ¶ 19, 26, 31, and 35. The appellate court reversed Clark's convictions and remanded the matter for a new trial. Id. at ¶ 72. We accepted the state's appeal challenging only the exclusion of testimony from Whitley and Jones and asserting that it did not violate the Confrontation Clause; the state did not appeal the decision of the appellate court that testimony from Detective Remington and from social workers Bolog and Little violated the Confrontation Clause and was therefore inadmissible.

Law and Analysis

Teachers as Agents of Law Enforcement

{¶ 13} Ohio law imposes a duty on all school officers and employees, including administrators and employees of child day-care centers, to report actual or suspected child abuse or neglect. R.C. 2151.421, the source of that duty, provides:

(A)(1)(a) No person described in division (A)(1)(b) of this section who is acting in an official or professional capacity and knows, or has reasonable cause to suspect based on facts that would cause a reasonable person in a similar position to suspect, that a child under eighteen years of age * * * has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the child shall fail to immediately report that knowledge or reasonable cause to suspect to the entity or persons specified in this division. Except as provided in section 5120.173 of the Revised Code, the person making the report shall make it to the public children services agency or a municipal or county peace officer in the county in which the child resides or in which the abuse or neglect is occurring or has occurred. * * *

(b) Division (A)(1)(a) of this section applies to any person who is an * * * administrator or employee of a child day-care center; * * * administrator or employee of a certified child care agency or other public or private children services agency; school teacher; school employee; school authority * * *.

{¶ 14} In Yates v. Mansfield Bd. of Edn., 102 Ohio St.3d 205, 2004-Ohio-2491, 808 N.E.2d 861, ¶ 30, we noted that...