State v. Scott

• Decision Date: 05 July 1972
• Docket Number: No. 71-730,71-730
• Citation: 285 N.E.2d 344,31 Ohio St.2d 1,60 O.O.2d 1
• Parties: , 60 O.O.2d 1 The STATE of Ohio, Appellee, v. SCOTT, Appellant.
• Court: Ohio Supreme Court

Page 1

31 Ohio St.2d 1

285 N.E.2d 344, 60 O.O.2d 1

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

No. 71-730.

Supreme Court of Ohio.

July 5, 1972.

Syllabus by the Court

1. A memorandum made by a witness may be admitted in evidence in a criminal case as 'past recollection recorded' if the witness had first-hand knowledge of the subject matter of the memorandum, the memorandum was made at or near the time of the event and while the witness had a clear and accurate memory of it, the witness lacks a complete present recollection of the event, and the witness testifies on the stand that the written memorandum is accurate.

2. The admission of a memorandum as 'past recollection recorded' in a criminal case does not deprive the defendant of his right of confrontation and cross-examination, where the witness is present on the stand and is available for full cross-examination by the defendant.

Defendant, Randy Scott, was convicted by jury trial in the Common Pleas Court of Crawford County of two violations of R.C. § 2901.23, one for shooting at Willard Lee with intent to kill, wound, or maim, and the other for shooting at two police officers of the city of Bucyrus.

On November 23, 1969, Willard Lee heard noises outside his residence, and when he opened the front door to investigate he received a shotgun blast in the face, totally destroying his eyesight and causing other injuries. Someone had also thrown a wine bottle filled with a flammable substance at the house.

Larry Deisler, who was in the house at the time, ran to his automobile and drove away. He was chased by another vehicle, a red Ford, from which shots were fired. Several blocks further Deisler hailed two policemen in a curiser who then began to chase the red Ford. During the chase, the red Ford was abandoned and its driver, identified by both policemen as the defendant, fled on foot firing a shot at the police officers as they attempted to follow him.

Later that evening the defendant was traced to a local theater, where he was apprehended. He was separately indicted for shooting at Lee and for shooting at the policemen. Separate counsel were appointed, and the cases were later combined for trial.

At the first trial, the jury was unable to reach a verdict. Before the second trial, one of the two court-appointed attorneys for the defendant withdrew from the case and the court appointed another attorney.

At the second trial, the jury returned a verdict of guilty on both of the shooting incidents. The defendant appealed to the Court of Appeals for Crawford County, which court affirmed the judgment of the trial court.

Other relevant facts are stated in the opinion.

The matter is now before this court pursuant to the allowance of a motion for leave to appeal.

Robert L. Brown, Pros. Atty., for appellee.

Scanlon, Berger, Garner & Kimerline, Nelfred G. Kimerline, Bucyrus, and Steven J. Erlsten, Galion, for appellant.

LEACH, Judge.

The principal issue involved in this case is whether the rule of evidence, referred to as 'past recollection recorded,' is recognized in Ohio, whether it may be employed in a criminal trial, and whether, if so employed, such rule is violative of a defendant's Sixth Amendment right of confrontation, including the opportunity of cross-examination. Although such rule of evidence has been specifically approved by the highest courts of most of our sister states, it appears that this issue has not heretofore been directly passed upon by this court.

The problem of 'past recollection recorded' arises in this case from the testimony of Carol Tackett, a witness for the state. Miss Tackett had been a friend of the defendant and had held a conversation with him at the theater just prior to his arrest. She gave a handwritten, signed statement to the police concerning this conversation the day after the arrest. A portion of the statement read as follows:

'About 5 min. before the show was over Randy came in. I got up to talk to him. He had been drinking so I didn't really believe what he said. He had told me he wrecked a car and he shot a guy. I just looked (at) him and he asked me to help him. I then asked him if he was telling the truth. When he said he was I turned away from him and ran out of the theater and got in the car with my sister and we tried to find Gary (one of the policemen) to tell him.'

This statement of Carol Tackett was admitted in evidence over the objection of the defendant. At the time of its admission Miss Tackett was on the witness stand. Prior to its admission she had testified, in part, as follows:

'A. Well, I sat through the whole show and, well, except for the last part of it. Randy was standing in the doorway inside the show and I got up and I was talking to him in the show. That was about five, ten minutes before the show ended or something like that.

'Q. All right. Now what was this conversation that you had with him at that time?

'A. Well, he wanted to know if I had a car and I told him no. And he wanted-I said that Linda had a car and he wanted to know if he could go with us and I said no that he couldn't go with us.

'Q. What else was at that time?

'A. Why, he was kind of upset and everything and that's when we heard the sirens outside and stuff.

'Q. Did you have any other conversation with him?

'A. Well he said something about somebody being shot at that time and I left the show right after that with my sister and Linda.

'Q. Do you recall the police coming in the movie at that time?

'A. No. I wasn't there at that time.

'Q. You say you left before they came or you didn't see any police come in?

'A. Yes. I left before that.

'Q. Now, then, can you tell us what the words were that Randy used concerning somebody being shot?

'A. I can't remember exactly what they were, just that it was something about that.

'Q. Do you recall being interviewed by the police following this time?

'A. Yes.

'Q. Do you recall giving a statement to the police?

'A. Yes.

'Q. I will hand you what has been marked as state's Exhibit 17 and ask if you can identify what that is.

'A. That's the statement that I made out for the policeman.

'Q. Is this your handwriting on here?

'A. Yes.

'Q. According to this, this was made on the 24th day of November of 1969. Would that be correct?

'A. Yes.

'Q. And down here, this signature here, whose signature is that?

'A. It's mine.

'Q. Now then, at the time that you made this statement, Carol, did you make this statement according to what your knowledge was at that time?

'A. To the best that I remembered.

'Q. Then would you say that this was a true statement that you made at that time?

'A. Yes.

'* * *

'Q. Now Carol, at the time that you made this statement which is identified as state's Exhibit 17, was your memory better than it is now?

'A. Yes.'

The state argues that the statement was properly admitted under the rule of 'past recollection recorded.' The defendant argues that the rule of 'past recollection recorded' has not been recognized in Ohio, that the statement was 'hearsay' and that its admission in evidence deprived the defendant of his constitutional right of confrontation and cross-examination. We hold that the statement was properly admitted as 'past recollection recorded,' and that its admission did not violate defendant's constitutional rights.

While the rule of 'past recollection recorded' is historically an offshoot from the practice of permitting a witness to refresh or revive his memory by examination of his own written memorandum ('present recollection refreshed'), it is fundamentally different in legal concept.

In the 'present recollection refreshed' situation, the witness looks at the memorandum to refresh his memory of the events, but then proceeds to testify upon the basis of his present independent knowledge. However, in the 'past recollection recorded' situation, the witness' present recollection is still absent or incomplete, but his present testimony is to the effect that his recollection was complete at the time the memorandum was written and that such recollection was accurately recorded therein.

The requirements for admitting a statement as past recollection recorded have been stated in different ways. In McCormick on Evidence (2Ed.) 712, the requirements are listed, as follows:

'As the rule permitting the introduction of past recollection recorded developed, it required that four elements be met: (1) the witness must have had firsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it, (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum.'

Those four requirements embody all the generally recognized requirements for the admission of a statement as 'past recollection recorded.'

In an annotation in 82 A.L.R.2d 520 (supplementing 125 A.L.R. 80), the statement appears: 'It is now almost universally held that upon the laying of a proper foundation a witness may testify from a written memorandum, although it does not recall the facts to his memory.'

Volume III, Wigmore on Evidence (Chadbourn Rev.), pages 77-124, contains an analysis of the historical development, the rationale and the scope of the present use of such rule. At page 84, it is stated: 'It cannot be doubted that the use of a recorded past recollection (under the conditions to be examined later) now occupies a firm and unassailable place in our practice and doctrine.'

Generally, the conditions outlined by Wigmore are that the witness has no present recollection of the matter, the past recollection must have been written down, the recollection must have been fairly fresh when recorded, the witness must verify the correctness of the record, the original record must be used when available, the record must be shown to the opponent on demand for inspection and...