YouTube Admissibility — Third Party Statements on Video = Hearsay
Patton v. Warden, 2017 U.S. Dist. LEXIS 93574 (S.D. Ohio June 19, 2017):
REPORT AND RECOMMENDATIONS
This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the merits. Upon initial review of the Petition (ECF No. 1), the Court ordered the State to answer the Petition and set a date twenty-one days after the return was filed for Petitioner to file a reply/traverse (ECF No. 2). In compliance with the Order, the Attorney General has filed the state court record ("SCR", ECF No. 6) and a Return of Writ (ECF No. 7). The time within which Petitioner was to have filed a reply has expired and no reply has been filed. The case is therefore ripe for decision.
Petitioner was indicted by the Lucas County Grand Jury on December 6, 2011, on one count of aggravated robbery (Ohio Revised Code § 2911.01(A)(1)), with a firearm specification (Count 1); and two counts of aggravated murder (Ohio Revised Code § 2903.01(A) and (F)), each with a firearm specification (Counts 2 and 3) (ECF No. 6, State Court Record Exhibit 1, PageID 33). The trial jury [*2] found him guilty as charged and sentenced to life imprisonment without parole (SCR, ECF No. 6, PageID 84).
Patton appealed to the Ohio Sixth District Court of Appeals raising the following assignments of error:
1. The trial court erred by permitting the State to play the video of two alleged gang members standing with a semi-automatic "assault style" rifle. Patton's Constitutional right to Confront Witnesses was violated and it was improper hearsay.
2. The trial court erred and abused its discretion through the admission of the video, the Russian SKS 45 rifle, gang evidence and statements made by Serrano and her son were more prejudicial than probative. The video, rifle and other gang evidence was not relevant.
3. The State failed to properly authenticate the You Tube video in violation of Evid.R. 901(A). As such, Patton was denied his right to a fair trial.
4. The trial court erred by allowing the prosecutor to engage in improper impeachment of Patton's alibi witness including an unprosecuted event while she was in junior high school and an allegation in a police report, neither of which resulted in a conviction.
5. The verdicts were against the manifest weight of the evidence.
6. The trial [*3] court erred by not granting Patton's motion to suppress the out-of-court identifications made of Patton from photo arrays. The identifications were made contrary to Ohio statutory law and in violation of his right to due process of law.
7. Patton did not receive the effective assistance of counsel to which he has a Constitutional right.
8. If this Court agrees with certain assignments of error and holds in favor of Patton, then the state's case must fail due to insufficient evidence.
9. The prosecutor engaged in a pattern of misconduct that was intentionally designed to prejudice the jury in order to obtain a conviction at all costs.
(SCR, ECF No. 6, PageID 91.) The Sixth District affirmed the convictions and sentence. State v. Patton, 2015-Ohio-1866, 2015 Ohio App. LEXIS 1783 (6th Dist. May 15, 2015), appellate jurisdiction declined, 144 Ohio St. 3d 1426 (2015). The instant habeas corpus petition followed on March 6, 2017 (ECF No. 1).
Patton pleads the following grounds for relief:
GROUND ONE: Violation of the Confrontation clause and improper hearsay in violation of the United States Constitution Fifth Amendment.
Supporting Facts: The trial court erred by permitting the State to play a video with two alleged gang members with semiautomatic "assault style" rifles [SKS 47 rifle] and other gang violence not relevant to the case.
GROUND TWO: The trial court erred [*4] by allowing the prosecutor to engage in improper impeachment of Petitioner's alibi witness under Evid. R. 608(B), including an unprosecuted event while she was in junior high school and an allegation in a police report, neither of which resulted in a conviction, in violation of the United States Constitution.
Supporting Facts: The trial court allowed the prosecution to impeach Petitioner's alibi witness with allegation in a police report from high school which did not result in a conviction.
GROUND THREE: The jury verdicts were against the manifest weight of the evidence.
Supporting Facts: The jury verdicts did not support the evidence presented in this case.
GROUND FOUR: The trial court erred by not granting Petitioner's motion to suppress the out-of-court identification of Petitioner made from photo arrays, which were contrary to law and in violation of the due process clause of the United States Constitution.
Supporting Facts: The trial court violated Petitioner's right to a fair trial by allowing out-of-court photo identifications of Petitioner.
Id. at PageID 4, 6, 7, and 9.
Grounds One: Confrontation Clause
In his First Ground for Relief, Patton asserts the trial court violated his rights under the Confrontation Clause by permitting the prosecutor to play a video with [*5] two alleged gang members with semi-automatic rifles and other gang violence not relevant to the case.
The Warden asserts Ground One is barred by Patton's procedural defaults in presenting this claim to the Ohio courts, both by making no contemporaneous objections in the trial court and then by failing to appeal to the Ohio Supreme Court from an adverse appellate ruling on this claim (Return, ECF No. 7, PageID 2609-13).
The procedural default doctrine in habeas corpus is described by the Supreme Court as follows:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas petitioner who fails to comply with [*6] a State's rules of procedure waives his right to federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963). Coleman, 501 U.S. at 724.
"A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, a claim is procedurally defaulted where state-court remedies have been exhausted within the meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is procedurally defaulted where the petitioner failed to exhaust state court remedies, and the remedies are no longer available at the time the federal petition is filed because of a state procedural rule. Id.
Failure to raise a constitutional issue at all on direct appeal is subject to the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72 (1977). Murray v. Carrier, 477 U.S. at 485; Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert denied, 474 U.S. 831 (1985). Failure to present an issue to the state supreme court on discretionary review constitutes procedural default. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)(citations omitted).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First the court must determine [*7] that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule. . . .
. . . .
Second, the court must decide whether the state courts actually enforced the state procedural sanction, citing County Court of Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate under Sykes that there was "cause" for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.
Maupin, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
Ohio has a relevant procedural rule that requires making an objection to trial court error at the time it occurs. State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see also State v. Mason, 82 Ohio St. 3d 144, 162 (1998). The Sixth Circuit has repeatedly held this rule is an adequate and independent state ground for decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012), citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert. denied, 562 U.S. 876 (2010).
The Sixth District Court of Appeals actually enforced this [*8] rule against Petitioner. It held:
[*P36] Under assignment of error No 1, appellant argues that the trial court erred by permitting the state to play a video of two alleged gang members with a semi-automatic rifle at trial. Appellant contends that admission of the video violated his Sixth Amendment right to confront witnesses and that the video also constituted inadmissible hearsay.
[*P37] The video is less than three minutes in length and was uploaded to YouTube in December 2007. It depicts two young men with an SKS style assault rifle with two ammunition magazine clips. The state used the video at trial as evidence that appellant, as a member of the gang Bagdad Boyz, had access to weapons of the type used to kill Timothy Blair and Veronica Serrano.
[*P38] Appellant raises objections to the video on confrontation and hearsay grounds for the first time on appeal. Prior to trial, appellant objected to evidence of gang related activity in a motion in limine on the grounds that the evidence was irrelevant and more prejudicial than probative. At trial counsel renewed the objection on the same grounds: "Objection, Judge, based on prior objection." Accordingly, appellant waived all but plain error on claimed [*9] error challenging the admissibility of the evidence on confrontation and hearsay grounds. See State v. Thompson, 141 Ohio St. 3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 174.
[*P39] The Ohio Supreme Court has identified the standard for noticing plain error:
First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be "plain" within the meaning of Crim.R. 52(B), an error must be an "obvious" defect in the trial proceedings. * * * Third, the error must have affected "substantial rights." We have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial.
State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891, ¶ 11, quoting State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16 and State v. Barnes, 94 Ohio St.3d 21, 27, 2002 Ohio 68, 759 N.E.2d 1240 (2002).
[*P40] Even where these three prongs are met, notice of plain error is taken "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Eafford at ¶ 12, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus
[*P41] The Confrontation Clause of the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him." In "Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause bars "testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity [*10] for cross-examination."
[*P42] The state contends that the YouTube video was admitted without sound and, therefore, the court's ruling did not admit any testimonial statement at trial. The record discloses, however, that statements from the video were recited at trial.
[*P43] At the hearing on appellant's motion to suppress the video, the trial court originally ordered that the video could be played at trial but excluded all audio, except for references to Bagdad and Bagdad Boyz memberships, and references to the weapon involved in the video.
[*P44] At trial, the court approved a different procedure to achieve the same result. The state played the video portion of the recording, without any audio. The state was permitted to question Office Doug Allen of the Toledo Police Department's Gang Task Force concerning statements made in the video within the limited areas of content previously set by the court. The court permitted this procedure for reasons of "expediency" as a means to enforce the court's limitations on use of audio from the without requiring technical editing of the recording.
[*P45] Officer Doug Allen testified that prior to trial he had heard the audio portion of the recording. [*11] The officer testified that the two men in the video were doing a rap. The officer testified to the names of the two men in the video and identified them as gang members of the Bagdad Boyz gang. Officer Allen testified further that the individuals in the video identified themselves as "Bagdad" and that they were from the "North." The state also questioned the officer as to statements made in the video about how many of the particular type weapon they had:
Q. And with respect to that particular weapon, do they indicate how many of these type weapons that they have?
A. They make reference at one point in here that they have a few of them.
[*P46] In our view, the fact that the state was permitted to use Officer Allen to voice statements made in the video, as a manner of convenience to avoid editing problems at trial, did not remove the testimonial nature of the court's ruling. The court's ruling permitted introduction into evidence of the out of court statements of the young men, voiced by Officer Allen, that the Bagdad Boyz gang possessed a few SKS automatic rifles at the time of the video. As neither of the young men testified at trial, admitting their out of court statements into evidence [*12] at trial denied appellant his Sixth Amendment to confront witnesses against him and constituted an obvious defect in trial proceedings.
[*P47] "To constitute hearsay, two elements are needed. First, there must be an out-of-court statement. Second, the statement must be offered to prove the truth of the matter asserted. If either element is not present, the statement is not 'hearsay.'" State v. Maurer, 15 Ohio St.3d 239, 262, 15 Ohio B. 379, 473 N.E.2d 768 (1984); see Evid.R. 801(C). The statements by the two young men were out of court statements and the statements were admitted to prove the truth of the matter asserted, namely that the Bagdad Boyz gang possessed a few automatic rifles of the type shown in the video. Accordingly, admitting the statements into evidence at trial was an obvious legal error, as the statements constitute hearsay. Evid.R. 802.
[*P48] We conclude, however, that these errors did not rise to the level of plain error, as the admission of the YouTube video did not affect the outcome of the trial. As more fully discussed in our consideration of whether the verdicts were against the manifest weight of the evidence, we conclude that the evidence of appellant's guilt at trial was overwhelming. We find assignment of error No. 1 not well-taken.
State v. Patton, supra.
A state [*13] court plain error holding is an enforcement of a procedural default, not a waiver of it. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell, 538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001), citing Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000)(plain error review does not constitute a waiver of procedural default); accord, Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003).
Thus the Sixth District enforced the contemporaneous objection rule against Patton and he has not shown any cause or prejudice to excuse that default.
Secondly, the Warden argues Ground One is procedurally defaulted because the adverse appellate ruling was not appealed to the Ohio Supreme Court. In order to avoid procedurally defaulting a habeas ground for relief, a petitioner must present it at every level of the state court system, including the state supreme court. O'Sullivan, supra. Patton's sole proposition of law on appeal to the Ohio Supreme Court was
Trial courts should suppress eyewitness identifications when the police intentionally refuse to respect the safeguards set forth in R.C. 2933.83. In the alternative, juries should be instructed that the method presented in R.C. 2933.83(A) is required, but that the police did not comply. R.C. 2933.83; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
This proposition of law does not include the claim made in Ground One and that claim is therefore procedurally defaulted on this second basis as well as on the contemporaneous objection ground.
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