State v. Jones , 2022 Ohio 1936 ( 2022 )

[Cite as State v. Jones, 2022-Ohio-1936.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110742
v. :
KELLY JONES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: June 9, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-641989-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristen L. Hatcher, Assistant Prosecuting
Attorney, for appellee.
Thomas A. Rein,* for appellant.
* Jonathan N. Garver is appointed for the limited purpose
of post-decision representation.
EILEEN A. GALLAGHER, P.J.:
Defendant-appellant Kelly Jones (“Appellant”) appeals his
convictions rendered after a jury trial. Appellant contends that the trial court erred
by admitting testimonial evidence in violation of the Confrontation Clause. We
sustain appellant’s first assignment of error, reverse the judgment of the trial court
and remand this case to the trial court.
I. Factual and Procedural Background
On July 24, 2019, a Cuyahoga County Grand Jury returned a true bill
of indictment against Appellant charging him with aggravated arson with a notice of
prior conviction and a repeat violent offender specification; attempted murder with
a notice of prior conviction and a repeat violent offender specification; felonious
assault with a notice of prior conviction and a repeat violent offender specification;
aggravated arson with a notice of prior conviction and a repeat violent offender
specification; arson and domestic violence.
On September 11, 2019, the trial court referred Appellant to
Northcoast Behavioral Healthcare for restoration to competency subsequent to a
determination by the court psychiatric clinic, and a stipulation by the parties, that
he was incompetent to stand trial. Prior to the commencement of trial on June 16,
2021, the court noted that the parties had stipulated to a report from Northcoast
Behavioral Healthcare determining Appellant was competent to stand trial.
The Appellant executed a waiver of his jury trial rights with respect to
the repeat violent offender specifications and notices of prior conviction.
The day before trial, Appellant filed a motion in limine seeking the
exclusion of the victim’s statements identifying Appellant as the perpetrator arguing
those statements were inadmissible hearsay and that the admission of those
statements would violate Appellant’s right to confront witnesses insofar as the state
did not intend to call the victim to testify at trial. The defense argued that, although
medical records of Ernestine Dumas (“Dumas”) had been provided by the state in
discovery, there is no suggestion in these records that Dumas suffers from
Alzheimer’s or dementia, and was, therefore, unavailable. There is nothing in the
record before us that explains Dumas’ failure to testify at the trial. The trial court
denied the motion.
Dumas suffered serious burns over roughly 16.5 percent of her body.
She would later state that she suffered those burns as a result of an assault by
Appellant in connection with Appellant’s efforts to burn down her house. After
suffering these burns, Dumas left her house and went across the street to her
neighbor’s house asking for a ride to the hospital. The neighbor, Jeraldine
Campbell, called 911 on her phone and then gave the phone to Dumas. Campbell
testified that she believed that the Appellant had been living with Dumas based on
how often she had seen him enter, and leave, Dumas’ house.
On July 12, 2019, Leticia Rice (“Rice”) was working as a Cleveland
police dispatcher. Rice authenticated state’s exhibit No. 3, an audio recording of a
911 phone call she took on July 12, 2019:
Dumas: I need police and ambulance this guy that I let stay in my house
went crazy and throwed gasoline or something on me. Trying to burn
my mother’s house down * * *.
Rice: He threw gasoline on you?
Dumas: Yes, set me on fire.
Rice: He’s . . . OK . . . He set you on fire already ma’am?
Dumas: Yes, ma’am and I’m out now. But it’s my face, arms and chest.
Rice: Ok. Ok. What’s your address? Tell me?
Dumas: . . .2526 E. 80th Street
Rice: 2526 E. 80th?
Dumas: Yes
Rice: OK so you calling from someone . . . listen you’re calling from
someone else’s phone?
Dumas: Right.
Rice: Is he still inside of the house?
Dumas: He was when I left.
Rice: OK. What’s your name?
Dumas: Ernestine Dumas. . . I gotta get to the hospital.
Rice: Stay on the line with me. OK you said you were not on fire
anymore.
Dumas: I say I gotta get to a hospital.
Rice: OK. What’s the guy’s name that did it?
Dumas: Kelly Jones
The trial court admitted this audio tape as an excited utterance, over
Appellant’s objection.
James Donnellon (“Donnellon”) testified that on July 12, 2019, he
was working as a Cleveland police officer. Donnellon testified that he and his
partner were the first officers to arrive on the scene at Dumas’ house. From the
outside of the house, he could see that a front window was broken and there was
glass scattered on the front porch. Donnellon waited for additional units to arrive to
clear the house. While backup units were en route, Donnellon went across the street
to the home of Jeraldine Campbell and spoke with Dumas. His body camera did not
record the conversation clearly and the statements made by Dumas, at that time,
were provided to the jury through the testimony of Donnellon.
Police officers entered Dumas’ house and determined that no one was
present. In the room with a broken exterior window, officers found empty bottles of
isopropyl alcohol and a lamp with a burned shade.
Mark DePhillips (“DePhillips”) testified that he investigated the fire
as a lieutenant of the Cleveland Fire Department’s Arson Investigation Unit. He
testified that the burns in the house were consistent with the use of an accelerant.
He told police at the scene that the fire did not constitute aggravated arson because
he did not see any physical harm to the occupied structure itself. DePhillips also
testified that he was unaware that Dumas had been burned when he told police
officers that there was no aggravated arson.
Charles Jones1 testified that he is Dumas’ nephew. He stated that
Dumas may have had memory loss moments, but she was fairly independent. He
also testified that Dumas was not diagnosed with dementia or Alzheimer’s at the
time of the incident. According to Mr. Jones, Dumas was “living alone
independently.”
1 No relation to Appellant.
Terencita Jones-Green2 testified that Dumas is her aunt. She testified
about the burn injuries that Dumas suffered and the medical treatment that was
being administered to her. She also testified that Dumas was occasionally forgetful,
but that Dumas had no diagnosis of dementia or Alzheimer’s and that she was
unaware of Appellant’s living situation.
Christopher Brandt, a burn surgeon at MetroHealth, testified that he
first treated Dumas several days after her admission to the hospital. According to
Dr. Brandt, Dumas suffered burns on 16.5 percent of her body and that he and his
partners performed multiple surgical procedures on her during her approximate six-
week hospitalization.
Cleveland Police Officer Kenneth Potchatek testified that Dumas had
been the subject of a Crisis Intervention Team referral due to psychological issues.
Specifically, she was referred for wrongfully believing people were living in her attic.
On the bodycam footage, Officer Potchatek is heard discussing Dumas as having
serious dementia and stating that the fire was likely accidental. At trial, he testified
that he was later convinced that her account of the assault was true because it was
lucid and every detail she gave “played out.” He became the primary officer on the
case because he had previous experience with Dumas.
We recognize the value of body cameras but the video, alone, should
be generally sufficient and admissible in trials. The exhibits offered at trial in this
2 No relation to Appellant.
case included oral narratives by the later-testifying police officers while on scene.
This is inadmissible testimonial hearsay.
Cleveland Police Detective David Sims testified that he was the
detective assigned to investigate Dumas’ allegations and visited her at the
MetroHealth Hospital Emergency Department. Sims testified that Dumas
remembered him from a burglary investigation which he had handled
approximately two years earlier. Sims further testified that she identified “Kelly” as
a subject. According to Sims, Dumas was in pain but was “well aware of what
happened, was able to speak clearly.” This is inadmissible testimonial hearsay.
Cleveland Police Officer Jacob Strehle responded with his partner,
Officer Potchatek, to Dumas’ home and, later, to MetroHealth where he interviewed
Dumas. Strehle testified that Dumas related that she had been burned by her live-
in tenant, “Kelly Jones.” Strehle did not record that statement. This is inadmissible
testimonial hearsay.
The jury returned a guilty verdict on the aggravated arson, felonious
assault, arson and domestic violence charges. The jury found Appellant not guilty
of attempted murder and aggravated arson.
The trial court then found Appellant guilty of the notices of prior
conviction and repeat violent offender specifications on both Count 1, aggravated
arson and Count 3, felonious assault. Appellant was sentenced to 11 years on Count
1 and ten years for the repeat violent offender specification to Count 1; eight years
for Count 3; 18 months for Count 5 and time served for Count 6. The court also
sentenced Appellant to five years’ mandatory postrelease control.
The trial court advised Appellant of the application of the Reagan
Tokes Law. Under that law, the sentence for Count 1 (11 years) was the minimum
sentence and the maximum sentence would be 16 years and six months. In total,
the trial court sentenced Appellant to 30 years and six months. The sentence could
be lengthened under Reagan Tokes up to 36 years.
Appellant appeals and assigns the following errors for our review:
Assignment of Error I: The trial court erred in the admission of hearsay
evidence and testimonial statements, in violation of Appellant’s right
to confront his accusers, as protected by the Sixth Amendment of the
United States Constitution.
Assignment of Error II: The trial court erred by failing to grant a
judgment of acquittal, pursuant to Crim.R. 29(a), on the charges, and
thereafter entering a judgment of conviction of those offenses as those
charges were not supported by sufficient evidence, in violation of
defendant’s right to due process, as guaranteed by the Fourteenth
Amendment to the United States Constitution.
Assignment of Error III: Appellant’s convictions are against the
manifest weight of the evidence.
Assignment of Error IV: The trial court erred by ordering convictions
and a separate sentence for separate counts because the trial court
failed to make a proper determination as to whether those offenses are
allied offenses pursuant to R.C. 2941.25 and they are part of the same
transaction under R.C. 2929.1.
Assignment of Error V: The trial court erred by ordering Appellant to
serve a consecutive sentence without making the appropriate findings
required by R.C. 2929.14 and HB 86.
Assignment of Error VI: The trial court erred by imposing an indefinite
prison sentence upon Appellant which is unconstitutional.
Assignment of Error VII: The trial court erred by allowing the State to
re-open its case to present additional evidence after all verdicts had
already been rendered.
II. Argument and Authorities
We need only address Appellant’s first assignment of error since that
is dispositive of this appeal. The trial court admitted the victim’s statements that
were made about an hour after the assault, and it was determined that everyone was
safe. Accordingly, we find that these statements are testimonial, and their
admission violated the Confrontation Clause of the U.S. Constitution.
Assignment of Error I: The trial court erred in the admission of hearsay
evidence and testimonial statements, in violation of Appellant’s right
to confront his accusers, as protected by the Sixth Amendment of the
United States Constitution.
Appellant contends that the trial court erred in admitting the
statements of Dumas because their admission violated Appellant’s right to be
confronted with the witnesses against him under the Sixth and Fourteenth
Amendments to the United States Constitution. The Sixth Amendment to the
United States Constitution provides in relevant part that “[i]n all criminal
prosecutions, the accused shall enjoy the right * * * to be confronted with the
witnesses against him [or her].” The United States Supreme Court held that the
Confrontation Clause bars “admission of testimonial statements of a witness who
did not appear at trial unless he [or she] was unavailable to testify, and the defendant
had had a prior opportunity for cross-examination.” Crawford v. Washington, 541
U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
1. For Confrontation Clause purposes, a testimonial statement includes
one made “under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a
later trial.” (Crawford v. Washington, 541 U.S. 36, 52, 124 S.Ct. 1354,
158 L.Ed.2d 177 (2004), followed.)
2. In determining whether a statement is testimonial for Confrontation
Clause purposes, courts should focus on the expectation of the
declarant at the time of making the statement; the intent of a
questioner is relevant only if it could affect a reasonable declarant’s
expectations.
State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, paragraphs
one and two of the syllabus. “We apply a de novo standard of review to evidentiary
questions raised under the Confrontation Clause.” State v. Bowleg, 8th Dist.
Cuyahoga Nos. 100263 and 100264, 2014-Ohio-1433, ¶ 10. At trial, the linchpins of
the prosecution’s case were the poor audio recordings and videorecorded statements
of the victim identifying Appellant as the attacker, which were only provided
through the testifying officers.
The state introduced an audio recording of the victim’s phone call to
911. During this conversation, Dumas relates that she had been burned by an
assailant at her house and that she was now present at a neighbor’s house. During
this call, Dumas also stated the assault happened about an hour ago and agreed that
everybody was safe and out of danger. The trial court expressed doubt as to Dumas’
estimate of the timeframe, but the only evidence in the record to that fact is Dumas’
statement of the time lapse. Dumas also stated that the assailant was in her house
when she left and when asked by the operator: “What’s the name of the guy that did
it?” Dumas replied that his name is “Kelly Jones.” The state also elicited testimony
from the neighbor, Jeraldine Campbell, who testified that Dumas said that
Appellant “had thrown fire on her[.]”
The state also introduced bodycam footage of Officer Donnellon. In
that footage and audio, Donnellon asks Dumas who burned her, and Dumas
identified Appellant as the man who burned her. The footage shows that Dumas
was receiving care from paramedics when the police questioned her.
The United States Supreme Court in Davis v. Washington, 547 U.S.
813, 830, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), identified four factors that could
be used to identify testimonial statements: “(1) that the interrogation sought to
determine what had happened, not what was happening, (2) that there was no
ongoing emergency, (3) that the interrogation was not needed to resolve an
emergency, and (4) that the interrogation was ‘formal[.]’” State v. Arnold, 126 Ohio
St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 15, citing Davis.
Dumas made the statements after she left her house and agreed that
everyone was safe and out of danger. Any “ongoing emergency had ended.” State
v. Cooper, 8th Dist. Cuyahoga No. 96635, 2012-Ohio-355, ¶ 7; State v. Smith, 2019-
Ohio-3257, 141 N.E.3d 590, ¶ 12 (1st Dist.). Dumas’ statements were elicited by two
law enforcement representatives: the 911 operator and Officer Donnellon, after the
emergency had ended. These police personnel were “not seeking to determine (as
in Davis) ‘what is happening,’ but rather ‘what happened.’” Davis at 830. These
recordings functioned as “a weaker substitute for live testimony.” Id. at 828. As in
Smith, the police “were aware that the incident had ended some time before.” Smith
at ¶ 12.
The first three Davis factors all weigh in favor of finding these
statements testimonial. The only factor in favor of finding these statements as
nontestimonial is their informality. This single factor is not sufficient to render
otherwise testimonial statements nontestimonial.
This case is distinguishable from earlier cases from this district
concerning bodycam footage. In Cleveland v. Johnson, 8th Dist. Cuyahoga No.
107930, 2019-Ohio-3286, ¶ 19-20, the declarant made her statements “shortly” after
the altercation and she stated that the perpetrator could be destroying her house
when she talked with the police. The Johnson Court determined that the admission
of the subsequent conversation with the police was harmless error. Id. at ¶ 21.
In State v. Tomlinson, 8th Dist. Cuyahoga No. 109614, 2021-Ohio-
1301, ¶ 43, the declarant made statements from the scene of the crime with the
reasonable apprehension that the assailant may return.
In the case at bar, Dumas made her first statement “an hour” after the
assault, from a different location, with no reason to conclude that the assailant
would follow her. In any event, Dumas was in the custody of, and receiving care
from, paramedics in the bodycam footage.
These recordings are testimonial. As a result, the admission of these
recordings violated Appellant’s rights under the Confrontation Clause.
The statements of Dumas made on the night of the assault are not the
only statements admitted by the trial court. Officers Strehle and Potchatek as well
as Detective Sims all testified about subsequent statements made by Dumas
concerning the assault. Dumas made these statements while she was receiving
medical treatment at both MetroHealth and at a rehabilitation center.
Detective Sims testified that he talked with Dumas several times in
the months following the assault and that she gave the same or similar account of
events. Detective Sims was the lead detective on the case questioning the victim well
after the underlying assault. Dumas, according to Detective Sims was “well aware
and able to speak clearly” when he repeatedly questioned her. She then should have
understood that these statements accusing Appellant of assault happened in the
context of investigation and prosecution. Davis, 547 U.S. at 826, 126 S.Ct. 2266, 165
L.Ed.2d 224 (“Interrogations by law enforcement officers fall squarely within the
class of testimonial hearsay”); Crawford, 541 U.S. at 68, 124 S.Ct. 1354, 158 L.Ed.2d
177 (Testimonial statements include “at a minimum * * * police interrogations”).
Accordingly, the admission of the statements of Dumas recounted by Officers
Strehle and Potchatek and Detective Sims all violated Appellant’s Confrontation
Clause rights.
There is no support in the record nor any suggestion that these
subsequent statements could have been excited utterances nor that they could be
determined to be nontestimonial given they were made to officers and detectives
that were expressly eliciting statements in connection with an investigation.
In the context of this case, we cannot find the admission of Dumas’
testimonial statements harmless beyond a reasonable doubt. See State v. Cutlip, 9th
Dist. Medina No. 03CA0118-M, 2004-Ohio-2120, ¶ 17-18 (finding that error is not
harmless as there was no evidence other than the evidence that should have been
excluded).
The purpose of police body cameras is to record events in which law
enforcement officers are involved. The Bureau of Justice Statistics in 2018
published a report which reflects the main reasons for law enforcement agencies to
acquire body cameras were to improve officer safety, increase evidence quality,
reduce civilian complaints and reduce agency liability.
Body cameras and their attendant audio recordings, should not, and
cannot, supplant or bolster the in-court testimony of witnesses. They cannot be used
to supplement the testimony of any witness and certainly cannot be used as a
substitute for the testimony of any witness.
We sustain Appellant’s first assignment of error. We reverse the
judgment of the trial court and remand this case for a new trial. Based on our
resolution of the first assignment of error, we need not address the remaining
assignments of error.
It is ordered that the appellant recover of appellee costs herein taxed.
The court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
LISA B. FORBES, J., and
EMANUELLA D. GROVES, J., CONCUR