When Some Evidence Is Wrongly Allowed, Appeals Courts Must Decide Whether Other Evidence Supports the Verdict
When deciding whether to grant a new trial because evidence of other acts was wrongly admitted, an appeals court must consider both the effect of the improper evidence on the verdict and the strength of the remaining evidence, the Ohio Supreme Court ruled today.
The court’s 4-3 decision upholds the appellate court’s judgment, which set aside the rape convictions of Carl M. Morris and ordered a new trial.
Writing for the majority, Justice Judith Ann Lanzinger set forth three principles, based on the court’s earlier decisions, for requiring a new trial when evidence is admitted in error. First, the improper evidence must have affected the trial’s outcome. Second, the appellate court must declare that the error was not harmless beyond a reasonable doubt. Last, when deciding whether the error is harmless beyond a reasonable doubt or a new trial is needed, the appeals court must remove the improper evidence from the record and review the evidence that is left.
Morris was charged with two counts of raping his stepdaughter, a minor identified by the initials S.K. She made the allegations in late 2007, six months after Morris had moved out of the house where she lived with her mother. S.K. was 15 during Morris’ trial. She testified that Morris had sexually molested her as many as 30 times beginning when she was six or seven years old and that he also raped her in 2003 and 2005.
S.K.’s mom and older half-sister both testified at the trial. The sister stated that when she was 19, Morris grabbed her and made a sexual comment. S.K.’s mother said when she refused to have sex with Morris he sometimes kicked the dog, and she provided other details about their sexual relationship. The jury convicted Morris on both counts of rape.
Morris appealed to the Ninth District Court of Appeals, which ruled that some of the testimony from S.K.’s mom and sister was inadmissible. The court reversed Morris’ convictions and granted a new trial.
The state appealed to the Ohio Supreme Court, contesting the standard of review used by the Ninth District. The Supreme Court returned the case to the appeals court to decide whether the trial court had abused its discretion by admitting the testimony.
The Ninth District again reversed the convictions, stating that the evidence about Morris’ character was improper and violated his right to a fair trial. The state appealed.
The majority opinion
Evidence Rule 404(B) prohibits courts from admitting evidence of other acts to prove the conduct in the alleged crime. The parties argued that courts must review appeals about improperly admitted evidence based on whether the error violates a defendant’s constitutional rights. The state asserted that allowing the evidence of other acts did not implicate Morris’ constitutional rights, while Morris claimed his constitutional right to a fair trial was infringed.
However, Justice Lanzinger wrote that the state’s procedural rules for criminal cases do not set different standards for reviewing errors involving constitutional and nonconstitutional rights. She noted that the relevant rule in this case, Crim.R. 52(A), instead asks whether the rights affected are substantial, which means that the error changed the outcome of the trial.
“[S]o the real issue when Evid.R. 404(B) evidence is improperly admitted at trial is whether a defendant has suffered any prejudice as a result,” she reasoned. “If not, the error may be disregarded as harmless error. And while courts may determine prejudice in a number of ways and use language that may differ, they focus on both the impact that the offending evidence had on the verdict and the strength of the remaining evidence.”
“[B]oth the nature of the error and the prejudice to defendant (the measure of how the error affected the verdict) are important,” she continued. “Appellate judges upon review determine these issues and decide which trial errors are harmless and which instead necessitate the remedy of reversal and new trial. Although the language used by the courts may vary, the principles themselves are clear: That is, technical error will be ignored under Crim.R. 52(A); structural error will result in automatic reversal …; and evidence errors that are prejudicial because they improperly affect the verdict will be excised from the record with the remaining evidence weighed to see if there is evidence beyond a reasonable doubt of the appellant’s guilt ….”
Once the improper testimony was removed from consideration in this case, the Ninth District was left with weak evidence, Justice Lanzinger explained. As a result, the appellate court could not find beyond a reasonable doubt that the improper evidence had no effect on the verdict, and it concluded that the only remedy was a new trial. The Ohio Supreme Court affirmed this judgment.
The court’s majority opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer and William M. O’Neill.
Justice Terrence O’Donnell dissented. Justice Sharon L. Kennedy also dissented in an opinion joined by Justice Judith L. French.
Justice O’Donnell’s dissent
“The majority, in my view, conflates the principles that control this case with standards that apply when the state fails to accord an accused a federally guaranteed constitutional right, and it second-guesses the credibility determinations made by jurors in this case,” Justice O’Donnell wrote in his dissent.
He pointed out that a 1967 U.S. Supreme Court decision (Chapman v. California) held that a state rule for determining whether a trial error is harmless does not apply if the error violates the defendant’s federal constitutional rights.
When the error implicates a federal constitutional right, “the state must prove beyond a reasonable doubt that the error did not contribute to the guilty verdict,” he explained. When the error does not involve a federal constitutional right, “Crim.R. 52(A) applies, and the error is harmless if the state can demonstrate that it is more likely than not that the error did not affect the outcome of the trial.”
“Rather than admit that this court has, on occasion, misapplied these rules and relied on the Chapman standard to review nonconstitutional error, the majority purports to reconcile our case precedent,” he added.
Justice O’Donnell wrote that the erroneous admission of other-acts evidence does not violate the U.S. Constitution, and in applying the harmless error standard for nonconstitutional error, a court must determine whether the state has shown that the improperly admitted other-acts evidence more likely than not had no effect on the outcome of the trial.
In this case, Justice O’Donnell concluded that Morris’ rape convictions should be reinstated because the evidence of other acts admitted in this case did not affect the outcome of the proceeding and was harmless error, as the testimony of the victim provided the basis for the guilty verdicts independent of the other-acts evidence.
Justice Kennedy’s dissent
Unlike the majority, Justice Kennedy agreed with the state and concluded that Ohio law is inconsistent in its standard for determining whether improperly admitted other-acts evidence is harmless. Like appellate courts around the state, sometimes the Ohio Supreme Court has applied the constitutional standard of review, and at other times the court has used the non-constitutional standard, she wrote.
While the majority rejected the distinction between constitutional and non-constitutional errors involving improperly admitted other-acts evidence, Justice Kennedy questioned the implications of the majority’s holding beyond this case and reasoned that the majority nonetheless has adopted a constitutional standard of review.
“I believe that the majority’s holding has erroneously elevated the improper admission of other-acts evidence to the status of constitutional error for purposes of harmless-error determination,” she wrote. “Although courts recognize that improper admission of other-acts evidence may result in a violation of the defendant’s constitutional right to a fair trial, the error in the admission of the evidence originates from a violation of Evid.R. 404(B). … Therefore, the violation of a rule, including Evid.R. 404, implicates a nonconstitutional harmless-error analysis.”
For the review of nonconstitutional errors, Justice Kennedy would adopt the analysis set out in United States v. Kotteakos (1946), which requires courts to consider the error’s effect on the outcome of the trial in the context of the entire record. Six federal circuit courts use this standard for these types of cases, she added.
“I would hold that improper admission of other-acts evidence is harmless error under Crim.R. 52(A) if a ‘court can say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.’ United States v. Kotteakos …,” she wrote. “And I would hold that applying this test ‘demands a panoramic, case-specific inquiry considering, among other things, the centrality of the tainted material, its uniqueness, its prejudicial impact, the uses to which it was put during the trial, the relative strengths of the parties’ cases, … any telltales that furnish clues to the likelihood that the error affected the factfinder’s resolution of a material issue,’ and any limiting instructions pertaining to other-acts evidence. United States v. Sepulveda ….”
She would return the case to the Ninth District to apply this standard to the evidence.
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