Opinion
2020-1446
03-17-2021
STATE v. GARNER
CASE ANNOUNCEMENTS
APPEALS NOT ACCEPTED FOR REVIEW
Donnelly, J., dissents, with an opinion.
Stewart, and Brunner, JJ., dissent.
DONNELLY, J., dissenting.
{¶ 1} The issue this case presents is whether a juvenile offender has the right, under the United States or Ohio Constitutions, to confront the authors of expert forensic reports whose hearsay opinions are admitted at the juvenile's mandatory-bindover hearing to establish that there was probable cause to believe the juvenile had committed an offense requiring that the case be transferred by the juvenile court to adult felony court pursuant to R.C. 2152.12(A)(1)(a)(i) and Juv.R. 30(A) and (B).
{¶ 2} The juvenile court here found probable cause to believe that 16-year-old appellant, Emmanuel Garner, had committed an act that would constitute murder if committed by an adult based in part on hearsay testimony, which was offered over the juvenile's objection. According to an eyewitness, Garner and another individual fired guns at each other and the victim was shot in the cross-fire. As recounted by the testifying lead detective, forensic reports authored by nontestifying expert witnesses indicated that (1) the projectile recovered from the decedent came from a 9 mm weapon; (2) 9 mm shell casings were recovered on the front porch of the house where Garner was said to have been standing; and (3) a projectile lodged in a post at the front of the house was fired from a .38 or .357 caliber weapon. After Garner's case was transferred to adult court, he entered a plea without admitting guilt, see North Carolina v. Alford, 410 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to one count of involuntary manslaughter and one count of felonious assault, each with a firearm specification, and was sentenced to serve 21 years in prison.
{¶ 3} On appeal, the Sixth District Court of Appeals held that a juvenile offender has no right under the Confrontation Clause of the Sixth Amendment or the Due Process Clause of the Fourteenth Amendment to the United States Constitution to confront the authors of those expert reports at the juvenile's bindover hearing. 2020-Ohio-4939, ¶ 26. "[A]lthough the bindover hearing is a ‘critically important hearing’ that directs the proceedings down one of two paths with drastically different potential outcomes, appellant's liberty is not yet at stake." Id. at ¶ 24. {¶ 4} I believe that the Sixth District's decision raises an important issue that warrants further consideration. The non-testifying experts’ testimonial statements would be inadmissible at a criminal trial absent a showing that they were unavailable to testify at trial and that Garner had had a prior opportunity to cross-examine the experts. See Bullcoming v. New Mexico, 564 U.S. 647, 657, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011) ; Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) ; Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
{¶ 5} To be sure, the reports here were not admitted at a trial to prove guilt beyond a reasonable doubt but rather at a mandatory-bindover hearing to determine probable cause, a lesser standard of proof. But at a bindover hearing, the state is required to present credible evidence of every element of a qualifying offense to support a finding that probable cause exists to believe that the juvenile committed the offense. See In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 46 ; State v. Iacona, 93 Ohio St.3d 83, 752 N.E.2d 937 (2001), paragraph three of the syllabus. "[I]n determining the existence of probable cause the juvenile court must evaluate the quality of the evidence presented by the state in support of probable cause as well as any evidence presented by the respondent that attacks probable cause." Iacona at 93; see also In re A.J.S. at ¶ 43.
{¶ 6} The Sixth District's categorical rejection of any right to confront witnesses whose testimonial statements provided the probable cause necessary to prosecute a juvenile as an adult is an issue that this court itself should confront. I would therefore accept this discretionary appeal. Because the court declines to do so, I respectfully dissent.