State v. Spikes

• Decision Date: 29 July 1981
• Docket Number: No. 80-1552,80-1552
• Citation: 67 Ohio St.2d 405,21 O.O.3d 254,423 N.E.2d 1122
• Parties: , 21 O.O.3d 254 The STATE of Ohio, Appellant and Cross-Appellee, v. SPIKES, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 405

67 Ohio St.2d 405

423 N.E.2d 1122, 21 O.O.3d 254

The STATE of Ohio, Appellant and Cross-Appellee, v. SPIKES, Appellee and Cross-Appellant.

No. 80-1552.

Supreme Court of Ohio.

July 29, 1981.

Syllabus by the Court

1. R.C. 2317.422, which establishes a procedure for admitting hospital records in evidence, via a sworn, written certification from the custodian of records, preserves the confrontation rights of a criminal defendant. (Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution, interpreted; R.C. 2317.422, applied; State v. Tims, 9 Ohio St.2d 136, 224 N.E.2d 348, overruled, in part.)

2. Crim.R. 16 requires that, upon motion of the defendant, the court order the prosecutor to provide the defendant with a copy of the defendant's prior criminal record and with a copy of the record of any prior felony convictions of any prosecution witness. (Crim.R. 16(B)(1)(b) and (e), applied.)

On October 1, 1979, three males approached Fredrick Veshinfsky while he was at the Painesville recreation park. One of these males tapped on Veshinfsky's car. One approached him from behind and choked him until he lost consciousness. Veshinfsky testified that, after he regained consciousness, he found his wallet outside his pants and that $110 and his glasses were missing. He saw a white car going up a nearby hill. Veshinfsky noticed the male who had tapped on his car looking back at him from inside the white car. Veshinfsky pursued this car and pulled in front of it. Veshinfsky left his car, and appellee James Spikes left the white car. Veshinfsky testified that appellee then struck him several times in the nose and face.

After reporting the incident to the Lake County sheriff's department, Veshinfsky went to Lake County Memorial Hospital. Several hours later, he was transferred to Richmond Heights General Hospital. Veshinfsky testified that he suffered a broken nose as well as having blood in his urine, trouble with his kidneys and back pains for two weeks.

Appellee was indicted on two counts: aggravated robbery, R.C. 2911.01, and felonious assault, R.C. 2903.11. Before trial, appellee moved the Court of Common Pleas to compel discovery of the felony and misdemeanor records of all witnesses for the purpose of impeachment at trial. The trial court ordered the prosecutor to furnish appellee with the felony and misdemeanor record of appellee and any felony records of the state's witnesses. The court observed that Crim.R. 16 does not require that the prosecutor supply a criminal defendant with the criminal record of his or her own witnesses. ¹

Appellee was tried to a jury. At trial, the prosecutor, over appellee's objections, cross-examined a defense witness regarding a misdemeanor conviction. Appellee later attempted to cross-examine Veshinfsky as to whether he had a misdemeanor record. The trial court sustained the prosecutor's objection. Defense counsel made an offer of proof on the record that he had received "information from a law enforcement official" that Veshinfsky did have a misdemeanor record. Defense counsel admitted, however, that he did not have an official report or court record substantiating his belief.

The trial court admitted in evidence, over defense objection, records from both of the hospitals at which Veshinfsky received treatment. Each hospital provided a sworn certification, as required by R.C. 2317.422. ²

At the conclusion of the trial, the jury returned from deliberations and requested that the court read to them "the conditions needed for aggravated robbery." The court complied and repeated the definition of serious physical harm. The jury later found appellee guilty of aggravated robbery, R.C. 2911.01, under count one of the indictment. The jury also found appellee guilty of assault, R.C. 2903.13, a lesser-included offense under count two of the indictment, felonious assault, R.C. 2903.11. The trial court issued concurrent sentences of 4 to 25 years at the Ohio State Reformatory on count one and 60 days in the Lake County jail on count two. Appellee also received a fine of $500, which the trial court suspended. The Court of Appeals reversed and remanded the cause for further proceedings. That court held that State v. Tims (1967), 9 Ohio St.2d 136, 224 N.E.2d 348, and appellee's constitutional right to confront the witnesses against him require that the examining physician testify prior to the admission in evidence of hospital records.

The cause is now before this court pursuant to the allowance of a motion and cross-motion for leave to appeal.

John E. Shoop, Pros. Atty. and Judson J. Hawkins, Asst. Pros. Atty., for appellant and cross-appellee.

Cort & Bruening and Kenneth M. Cort, Painesville, for appellee and cross-appellant.

LOCHER, Justice.

This cause presents two issues: (1) whether the admission in evidence of hospital records under R.C. 2317.422 violated appellee's confrontation right; ³ and (2) whether due process of law and Crim.R. 16 require that the prosecutor provide defense counsel with the complete criminal records of all witnesses and of the defendant.

I.

R.C. 2317.422 permits the admission in evidence of hospital records which are properly certified. Neither the preparer nor the custodian is required to testify. R.C. 2945.41 provides: "The rules of evidence in civil causes, where applicable, govern in all criminal causes." This court has previously observed, however, that a criminal defendant's constitutional rights limit the applicability of civil rules of evidence to a criminal case. Cf. State v. Tims (1967), 9 Ohio St.2d 136, 137, 224 N.E.2d 348. We continue to endorse this view.

Appellee argues that R.C. 2317.422 denies his right to confront the witnesses against him and shifts the burden of proof to him. Appellee's position is that the confrontation clause requires that the prosecution produce as witnesses at trial the people who prepared the hospital records, because the hospital records are hearsay. We disagree.

IA.

It is well settled that "(t)he Sixth Amendment's Confrontation Clause * * * (is) made applicable to the States through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 1067-1069, 13 L.Ed.2d 923, 403-405, (1965); Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109-1110, 39 L.Ed.2d 347 (1974) * * *." Ohio v. Roberts (1980), 448 U.S. 56, 62, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597, reversing State v. Roberts (1978), 55 Ohio St.2d 191, 378 N.E.2d 492.

In Ohio v. Roberts, supra, the United States Supreme Court summarized the analysis for determining whether hearsay is admissible vis-a-vis the Confrontation Clause of the Sixth Amendment. Usually, the prosecution must produce the declarant or demonstrate why the declarant is unavailable to testify. "A demonstration of unavailability, however, is not always required. In Dutton v. Evans, 400 U.S. 74 (1970), 91 S.Ct. 210, 27 L.Ed.2d 213, for example, the Court found the utility of trial confrontation so remote that it did not require the prosecution to produce a seemingly available witness. * * *" Ohio v. Roberts, supra, at page 65, fn. 7, 100 S.Ct. at 2538, fn. 7 (references omitted). Appropriate "indicia of reliability" must also be present. Id., at 66, 100 S.Ct. at 2539.

There is no clear indication in the record in this cause whether the preparers of the hospital records were unavailable. Because the Ohio v. Roberts opinion states that unavailability is customarily necessary, we must consider what is constitutionally required when the prosecution does not establish that the witness is unavailable. Ohio v. Roberts, in fn. 7 quoted above, suggests that Dutton v. Evans (1970), 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213, provides the appropriate analytical framework.

In Dutton, defendant Evans and two others, Truett and Williams, were accused of murdering three police officers in Georgia. Evans elected a separate trial under Georgia law. Truett received immunity and testified for the prosecution against Evans. One of the 19 other witnesses who testified for the prosecution was a man named Shaw.

"He testified that he and Williams had been fellow prisoners in the federal penitentiary * * * (and) that when Williams was returned to the penitentiary from (his) arraignment * * * Williams * * * (said), 'If it hadn't been for that dirty son-of-a-bitch Alex Evans, we wouldn't be in this now.' " Dutton, supra, at 77, 91 S.Ct. at 214.

The United States Supreme Court upheld Evans' conviction and noted, in a plurality opinion by Justice Stewart, that Shaw's "testimony, which was of peripheral significance at most, was admitted in evidence under a co-conspirator exception to the hearsay rule long established under state statutory law." Dutton, supra, at 87, 91 S.Ct. at 219. The court also observed that it was inconceivable that cross-examination of Williams would reveal that Williams could not have known whether Evans was involved and that Williams made a misstatement under circumstances suggesting its reliability. The court concluded its opinion as follows:

" * * * (T)he possibility that cross-examination of Williams could conceivably have shown the jury that the statement, though made, might have been unreliable was wholly unreal.

"Almost 40 years ago, in Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, Mr. Justice Cardozo wrote an opinion for this Court refusing to set aside a state criminal conviction because of the claimed denial of the right of confrontation. The closing words of that opinion are worth repeating here:

" 'There is danger that the criminal law will be brought into contempt that discredit will even touch the great immunities assured by the Fourteenth Amendment if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law and set the guilty free.' 291 U.S., at 122, 54 S.Ct., at 338." Id., 400...