[Cite as State v. Hall, 2012-Ohio-266.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96680



                                          STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                 vs.

                                          LAVERT HALL
                                               DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-540908

        BEFORE:           Cooney, J., Celebrezze, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: January 26, 2012
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ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Oscar E. Albores
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




COLLEEN CONWAY COONEY, J.:

       {¶ 1} Defendant-appellant, Lavert Hall (“Hall”), appeals his convictions of

felonious assault and improperly discharging a firearm at a habitation. We find some

merit to the appeal but affirm.

       {¶ 2} Hall was indicted on four counts of felonious assault and four counts of

improperly discharging a firearm at a habitation. All charges included one-, three-, and

five-year firearm specifications. The case proceeded to jury trial where the following

evidence was presented.
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       {¶ 3} Hall was dating Michelle Flowers (“Michelle”) in the summer of 2010. On

the evening of July 24, 2010, the two had an argument. Witnesses testified that Hall

pushed and beat Michelle.

       {¶ 4} The following evening, Michelle’s brother, David Flowers (“David”), was

sitting on the porch of the family home on East 90th Street, when he observed two

vehicles approach the house with guns pointed at him through the vehicle windows. He

heard four gunshots as he ran into the house. David testified that Hall was one of the

gunmen. David immediately called 911, and Anthony, his father, reported that Hall was

one of the shooters.

       {¶ 5} Det. Darryl Johnson (“Johnson”) testified that he found five spent casings in

the street and one 9-millimeter casing on the front porch. However, Johnson testified

that there was no physical evidence linking Hall to the crime.

       {¶ 6} Michelle testified that about one-half hour after the shooting, Hall called

her and confessed to shooting the house on East 90th Street where her family lived. The

State provided phone records to corroborate her statement that he called her, but there

was no recording of the actual conversation to verify what was said. Michelle’s father,

Anthony Flowers, testified that he was upstairs when the shots were fired and he heard

Hall’s laughter after the shots were fired.

       {¶ 7} The defense called the lead detective, Artara Adams (“Adams”). Hall’s

lawyer used the police report to examine Adams over the State’s objection. The State

used the same police report to cross-examine Adams, who admitted that Hall was the only
                                            4

named suspect in the report. The State offered the police report as an exhibit over

defense counsel’s objection. The court later allowed the police report to go to the jury

for its deliberation.

       {¶ 8} The court granted Hall’s motion to dismiss two of the eight counts pursuant

to Crim.R. 29. At the conclusion of the trial, the jury found Hall guilty on all remaining

counts, including the one-, three-, and five-year specifications. The court sentenced him

to four years on each of the underlying counts, with the felonious assault counts merging

with the improper discharge counts.       The court also merged the one-year firearm

specification with the three-year firearm specification and ran them consecutive to the

underlying offenses and consecutive to the five-year specification for a total sentence of

12 years on each count.

       {¶ 9} Hall now appeals, raising two assignments of error.

       {¶ 10} In the first assignment of error, Hall argues the trial court violated his due

process rights and abused its discretion when it admitted the police report into evidence in

violation of Evid.R. 803(8). In the second assignment of error, Hall argues the court

violated his Sixth Amendment right of confrontation by admitting the police report, which

contained testimonial statements. Because these assigned error are closely related, we

will discuss them together.

       {¶ 11} A trial court has broad discretion in the admission and exclusion of

evidence, and an appellate court must not interfere with that determination “[u]nless the

trial court has clearly abused its discretion.” State v. Apanovitch, 33 Ohio St.3d 19, 25,
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514 N.E.2d 394 (1987). An abuse of discretion “‘implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.’”             State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124, ¶ 19, quoting Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983).

       {¶ 12} Police reports are generally inadmissible hearsay and should not be

submitted to the jury. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d

229; State v. Ward, 15 Ohio St.3d 355, 358, 474 N.E.2d 300 (1984). Evid.R. 803(8),

which governs hearsay exceptions, provides:

       The following are not excluded by the hearsay rule, even though the
       declarant is available as a witness:

       Records, reports, statements, or data compilations, in any form, of public
       offices or agencies, setting forth (a) the activities of the office or agency, or
       (b) matters observed pursuant to duty imposed by law as to which matters
       there was a duty to report, excluding, however, in criminal cases matters
       observed by police officers and other law enforcement personnel, unless
       offered by defendant, unless the sources of information or other
       circumstances indicate lack of trustworthiness. (Emphasis added.)

       {¶ 13} The admission of the police report allowed the State to introduce hearsay

from witnesses who never appeared at trial. The police report not only allowed the State

to improperly corroborate Michelle’s testimony (where there was no express or implied

charge against her of recent fabrication or improper influence or motive), 1 but also

allowed the State to present hearsay statements that were never subject to


           Evid.R. 801(D)(1)(b) permits the admission of a prior consistent statement of a witness if it
       1


is “offered to rebut an express or implied charge against the declarant of recent fabrication or
improper influence or motive.”
                                            6

cross-examination and were potentially more damaging than testimony from live

witnesses.

       {¶ 14} For example, on the second page of the report, under the heading “Details

of Offense,” the report stated, “ON 7.24.2010, THE ABOVE MALE TOLD M.

FLOWERS THAT HE WAS GOING TO KILL HER.” Michelle never testified that

Hall threatened her before the shooting incident.

       {¶ 15} Further, in the “Original Narrative,” the report stated:

       Speaking with the reporting person #1 [David Flowers], stated his sister and
       suspect recently had a physical fight, suspect called stated, “I’m going to
       shoot up your house,” and hung up the phone.

       FURTHER INVEST REVEALS

       Suspect called 2130 hours, advising — after the police leave he’s returning
       to do more shooting.

       {¶ 16} There was no testimony that Hall ever called David Flowers to

communicate his intention to shoot the house either before or after the incident. This

evidence was presented to the jury for the first time during deliberations. As such, Hall

did not have an opportunity to cross-examine the witnesses who made those statements.

       {¶ 17} Furthermore, the admission of the police report violated Hall’s right to

confront witnesses. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158

L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause

applies to exclude “testimonial” as opposed to “non-testimonial” evidence. Although the

Crawford court did not define “testimonial,” it discussed three possible definitions of that
                                            7

term, which include: (1) ex parte in-court testimony or its functional equivalent, such as

affidavits and prior testimony that the defendant was unable to cross-examine, or pretrial

statements that declarants would reasonably be expected to be used in a prosecution; (2)

extrajudicial statements contained in formal testimonial materials such as depositions,

prior testimony, or confessions; and (3) statements made under circumstances that would

lead an objective witness to believe the statement would be available for use at a later

trial. Id. at 51-52.

       {¶ 18} In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224

(2006), the United States Supreme Court further defined the meaning of the term

“testimonial.” In that case, the court held that the Confrontation Clause applies only to

testimonial hearsay and not to statements made “to enable police assistance to meet an

ongoing emergency.” Id. at 2277. In Davis, the victim had made a 911 emergency call

and, in the course of that call, incriminated the defendant. In affirming the lower court’s

admission of the statements, the Davis court distinguished statements made during an

emergency situation from statements made during the course of an investigation after the

crisis situation has passed. Specifically, the Davis court held:

       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 prosecution. Id. at 2273-2274.
                                           8

       {¶ 19} In the case of 911 calls, the Davis Court reasoned, the declarants are

generally “speaking about events as they [are] actually happening * * *.” (Emphasis sic.)

 Id. at 2276. 911 callers are typically in the midst of the emergency. Id. Under these

exigent circumstances, the callers are not testifying as witnesses, and their statements do

not qualify as testimonial in nature.

       {¶ 20} Further, in Michigan v. Bryant, 562 U.S. __, 131 S.Ct. 1143, 1157, 179

L.Ed.2d 93 (Feb. 28, 2011), a testimonial exception was more discretely defined as

follows:

       The existence of an ongoing emergency is relevant to determining the
       primary purpose of the interrogation because an emergency focuses the
       participants on something other than “prov[ing] past events potentially
       relevant to later criminal prosecution.” * * * Davis, 547 U.S., at 822, 126
       S.Ct. 2266. Rather, it focuses them on “end[ing] a threatening situation.”
       Id. at 832, 126 S.Ct. 2266. Implicit in Davis is the idea that because the
       prospect of fabrication in statements given for the primary purpose of
       resolving that emergency is presumably significantly diminished, the
       Confrontation Clause does not require such statements to be subject to the
       crucible of cross-examination. (Footnote omitted.)

       {¶ 21} This court has held that although appellate courts generally review

decisions on the admission of evidence for an abuse of discretion, we apply a de novo

standard of review to evidentiary questions raised under the Confrontation Clause. State

v. Worley, 8th Dist. No. 94590, 2011-Ohio-2779, ¶ 11, citing State v. Babb, 8th Dist. No.

86294, 2006-Ohio-2209, ¶ 17; State v. Simuel, 8th Dist. No. 89022, 2008-Ohio-913, ¶ 35;

State v. Steele, 8th Dist. No. 91571, 2009-Ohio-4704, ¶ 18.
                                              9

       {¶ 22} Here, two police reports were admitted into evidence over defense

counsel’s objection. Both reports contain testimonial statements “that would lead an

objective witness to believe the statement would be available for use at a later trial.”

Crawford at 51-52. The reports contain statements of investigating officers who were

not responding to an emergency and who did not testify at trial. According to one report,

Officers Daniel Baillis, Bryan Curry, and Gerald Bronson investigated the crime in

addition to Artara Adams.        The second report identifies additional officers Mark

Bickerstaff, Johnny Harris, and Michelle Wolf as investigating officers. One report

identifies Officer Daniel Baillis as the reporting officer, while the second report identifies

Officer Johnny Harris as the reporting officer. Yet none of these officers testified at trial

except Det. Adams.

       {¶ 23} The police reports further indicate that the police were investigating Hall

for crimes of menacing and intimidation of a crime victim or witness. Such statements

are unfairly prejudicial since he was not on trial for these offenses. The admission of the

police reports violated Evid.R. 803(8) and the Confrontation Clause and constituted error.

       {¶ 24} However, because the evidence of Hall’s guilt is overwhelming, we find

this error harmless. Although there was no physical evidence linking Hall to the crime,

David Flowers testified that he observed the two vehicles pull up in front of the house,

and Hall held a gun pointed at him. In addition, Anthony Flowers testified that he heard

Hall’s laughter after the shots were fired.
                                           10

      {¶ 25} David Flowers’s testimony that he saw Hall holding the gun out the vehicle

window, coupled with Anthony’s excited utterance to the 911 dispatcher in which he

identified Hall as one of the shooters, along with Michelle’s testimony regarding Hall’s

calls to her, require our conclusion that the police reports did not contribute to Hall’s

convictions beyond a reasonable doubt.

      {¶ 26} Hall’s two assignments of error are overruled.

      Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.
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       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


       ______________________________________________
       COLLEEN CONWAY COONEY, JUDGE

       FRANK D. CELEBREZZE, JR., P.J., CONCURS;
       LARRY A. JONES, J., DISSENTS (WITH SEPARATE OPINION ATTACHED).

       LARRY A. JONES, J., DISSENTING:

       {¶ 27} Respectfully, I dissent.   The majority correctly finds that the admission of

police reports in this case violated Evid.R. 803(8) and the Confrontation Clause were

unfairly prejudicial to Hall. Yet the majority overrules the trial court’s error, finding it

“harmless” because the evidence of Hall’s guilt was overwhelming.
                                             12

       {¶ 28} Error in the admission of evidence in a criminal trial must be considered

prejudicial unless the court can declare, beyond a reasonable doubt, that the error was

harmless, and unless there is no reasonable possibility that the evidence may have

contributed to the accused’s conviction.      (Emphasis added.) Columbus v. Obasohan,

175 Ohio App.3d 391, 397, 2008-Ohio-797, 887 N.E.2d 385 (10th Dist.), citing State v.

Bayless, 48 Ohio St.2d 73, 106, 357 N.E.2d 1035 (1976), vacated in part on other

grounds, 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1155 (1978). As to constitutional

errors, not all errors are prejudicial.   We may decline to notice a constitutional error if

the error is harmless beyond a reasonable doubt. State v. Love, 4th Dist. No. 05CA2838,

2006-Ohio-1824, 2006 WL 933360, ¶ 34, citing Chapman v. California, 386 U.S. 18, 24,

87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

       Whether a Sixth Amendment error was harmless beyond a reasonable doubt
       is not simply an inquiry into the sufficiency of the remaining evidence.
       Instead, the question is whether there is a reasonable possibility that the
       evidence complained of might have contributed to the conviction. State v.
       Conway, 108 Ohio St.3d 214, 228, 2006-Ohio-791, 842 N.E.2d 996, citing
       Chapman at 24.

       {¶ 29} “‘“When a claim of harmless error is raised, the appellate court must read

the record and decide the probable impact of the error on the minds of the average

juror.”’” Obasohan at 397, quoting State v. Auld, 4th Dist. No. 2006-CAC-120091,

2007-Ohio-3508, 2007 WL 1977748, quoting State v. Young, 5 Ohio St.3d 221, 226, 450

N.E.2d 1143 (1983).
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       {¶ 30} Thus, we must consider whether the improper admission of the police

reports could have contributed to Hall’s convictions, not just whether there was

overwhelming evidence of his guilt.       Because the police reports were admitted into

evidence, the jury improperly heard for the first time during deliberations that:   (1) Hall

called the victims immediately after the shooting and threatened to return to do more

shooting; (2) Det. Adams contacted the victims after the shooting and informed them that

Hall had been arrested and jailed for another crime; (3) Michelle had an active restraining

order against Hall; and (4) Hall called the victims a second time after the shooting, spoke

with a police officer and claimed he did not shoot up the house and the victims had

threatened him.

       {¶ 31} Based on these facts, I cannot conclude that the information in the police

reports did not contribute to Hall’s conviction. Not only did the jury learn that Michelle

had a restraining order against Hall, but also that Hall had been arrested and jailed for

another crime.    Simply put, the admission of the police reports allowed the state to

improperly bolster its witnesses’ testimony without giving Hall the benefit of

cross-examination.
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       {¶ 32} Although there was eyewitness testimony that Hall was the shooter, there

was no physical evidence linking Hall to the crime.     Moreover, I am reminded that we

must not only consider whether there was other evidence by which Hall could be

convicted of the charged crimes, but whether there is a reasonable possibility that the

police reports improperly admitted into evidence contributed to his conviction. I would

find that the standard has been met and sustain the assignments of error.
