Evidence Practical Project Spring 2014

LAW 6330 (4 credits)
Section 1233
Professor Pedro A. Malavet
Spring 2014

Instructions

As I announced in my Course Description and Rules, I require each student to submit a practical project that accounts for ten percent (10%) of your testing score for this course. The project is judged on a pass/fail basis.

Each student will work individually, although I have assigned you a role to play as indicated below. You are allowed to discuss the problem with your classmates and may refer to forms and other resources, as long as you draft your own motion.

Your assignment is to write a motion in limine, based on the fact-pattern that follows. Students with last names starting with letters between ALI and KLT and MAN will write for the prosecution, and those whose last names fall between LEW and ZLA will write for the defense.

You will assume that the applicable rules are the Federal Rules of Evidence, together with accompanying caselaw as studied in your Spring 2014Evidence Course. Your motion must adequately represent the interests of the party you represent, be it the defendant or the U.S. government, and make reference to the pertinent Federal Rules of Evidence, cases and other materials included in your casebook and Rules supplement (you are allowed to extend your research beyond these resources, but it is not required).

I recommend a list of bibliographic resources collected by the Legal Information Center [click here to view the bibliography]. I also highly recommend the Public Defender Service of the District of Columbia Criminal Practice Institute Trial Manual (http://www.pdsdc.org/LegalCommunity/TrainingCPI.aspx). This downloadable PDF provides lots of useful information including sample cross-examinations, and forms for many types of motions including motions to suppress and motions in limine.

DUE DATE: Projects are due on or before 5:00 p.m. on MONDAY, March 31, 2014. All documents must be in either MS Word or PDF format and must be uploaded to the eLearning course page using the Motion in Limine Practical Project assignment created for that purpose.

Fact-Pattern:
State v. Darius Clark

(Before the Superior Court of Cuyahoga County, Ohio, on remand from the Supreme Court of Ohio for a new trial.)

State v. Darius Clark

The issue on appeal was whether the trial court violated Darius Clark’s constitutional right to confront the witnesses against him when it admitted a hearsay statement that three-and-a-half-year-old L.P. made to his preschool teachers, Ramona Whitley and Debra Jones, in response to questions asked about injuries to his eye and marks on his face observed upon his arrival at a preschool day care.

Factual and Procedural Background

Darius Clark lived with his girlfriend, T.T., her three-year-old son, L.P., and her two-year-old daughter, A.T. A grand jury indicted Clark on one count of felonious assault (R.C. 2903.11(A)(1)) relating to L.P., four counts of felonious assault (R.C. 2903.11(A)(1)) relating to A.T., two counts of endangering children (R.C. 2919.22(B)(1)), and two counts of domestic violence (R.C. 2919.25(A)). The trial court declared L.P. incompetent to testify but denied Clark’s motion in limine to exclude L.P.’s out-of-court identification statements.

The children’s mother, referred to here as “T.T.” in order to avoid identifying the children, was also indicted, and she pled guilty to child endangerment, domestic violence, and permitting child abuse and agreed to testify against Clark. She was sentenced to eight years’ imprisonment.

T.T. testified that Clark is known as “Dee” to friends and family, that they had been in a relationship since 2008, and that he acted as her pimp for her prostitution activities, for which she travelled to Washington, D.C. She further testified that her family usually watched her two children while she travelled to Washington, D.C. But eventually, she began leaving L.P. and A.T. with Clark. And she continued to do so even after she realized that Clark was physically abusing the children. T.T. testified that around midnight, March 16, 2010, she left for Washington, D.C., to engage in prostitution. She left L.P. and A.T., unharmed, in Clark’s care.

The next day, March 17, 2010, at approximately 1:00 p.m., Clark dropped L.P. off at his school, William Patrick Day School, which was operated by the Council for Economic Opportunities of Greater Cleveland Head Start.

Ramona Whitley, one of L.P.’s teachers, saw L.P. in the lunchroom and noticed that his eye was bloodshot or bloodstained. She asked him, “What happened?” and L.P. at first said nothing but then replied, “I fell.” Whitley asked, “How did you fall and hurt your face?” and L.P. answered, “I fell down.” Whitley noted that L.P. was not as talkative as usual and wouldn’t eat.

When L.P. went into the classroom, he played at a table. In the brighter light of the classroom, Whitley noticed additional injuries. She saw red marks on L.P.’s head “like whips of some sort” and welts on his face. Whitley testified that she was “kind of like in shock” and asked, “Oh, what happened?”

Whitley then got the attention of the lead teacher, Debra Jones, and asked her to look at L.P. At this time, Jones saw L.P.’s bloodshot or bloodstained eye and some “redness” around his neck. When Jones saw L.P.’s eye, she said, “He needs to go to Ms. Cooper, my supervisor. After I looked at him, I said, you know, I’m going to take him to Ms. Cooper.” Jones then asked “Whoa, what happened?” and “Who did this? What happened to you?” Jones testified that L.P. seemed “kind of bewildered” but then said something like “Dee, Dee.” Jones, wanting to know if L.P. was talking about another child, asked, “Is he big or little?” Jones testified that L.P. said, “Dee is big.” Jones described L.P. as “Out. Staring out. And I was asking him—he almost looked uncertain, but he said, Dee.” Because L.P. had only attended the school for a short time, Jones could not be certain that the child understood her questions.

Because Jones did not want to embarrass L.P. or alarm any of the children, she took L.P. to the office of her supervisor, Ms. Cooper. Jones testified that Cooper asked L.P. if she could see his shirt. When Cooper raised L.P.’s shirt, Jones saw red marks on L.P.’s body. It was only at this point—after the child was taken to the supervisor’s office—that the decision was made to report a suspicion that L.P. had been abused. Jones testified that Cooper said, “Whoever saw him first got to make the call.” As a result, Whitley called 696-KIDS and made a report of suspected child abuse.

In response, the Cuyahoga County Department of Child and Family Services (“CCDCFS”) sent a social worker to the school to question L.P. Clark arrived at the school while the social worker was questioning L.P. and denied responsibility for L.P.’s injuries. Clark then left with the child.

The next day, a social worker located T.T.’s children at the home of Clark’s mother and took them to the hospital. A physician determined that L.P. had bruising in various stages of development and abrasions consistent with having been struck by a linear object and that A.T. had bruising, burn marks, a swollen hand, and a pattern of sores at her hairline. The physician suspected child abuse and estimated that the injuries occurred between February 28 and March 18, 2010. The examining physician, Dr. Patrick Johnson, so testified at trial.

Seven witnesses testified regarding the statements made by L.P.: Jody Remington, a Cleveland police detective; Sarah Bolog, a CCDCFS social worker; Howard Little, a CCDCFS intake social worker; Whitley and Jones; the children’s maternal grandmother; and the children’s maternal great-aunt. Multiple witnesses testified that defendant Clark was commonly known as “Dee” by his friends and family. Unexplained in this record, and highlighted by the court of appeals in its opinion, is that the trial court declared L.P. incompetent to testify at the time of trial, yet it permitted testimony about statements this incompetent three-and-a-half-year-old child made to his teachers six months earlier.

The jury found Clark guilty of all charges, except for one count relating to A.T., and the court thereafter sentenced Clark to an aggregate 28-year prison term.

Clark appealed, claiming that the trial court violated his right to confrontation by allowing witnesses to testify about the statements L.P. made to his preschool teachers. The court of appeals held that the trial court abused its discretion when it permitted Detective Remington, Bolog and Little (the social workers), and Whitley and Jones (the preschool teachers) to testify regarding L.P.’s statements, because they were testimonial and their admission violated the Confrontation Clause. State v. Clark, 8th Dist. Cuyahoga, 2011-Ohio-6623, 2011 WL 6780456. The appellate court reversed Clark’s convictions and remanded the matter for a new trial. Id.

The Supreme Court accepted the state’s appeal challenging only the exclusion of testimony from Whitley and Jones and asserting that it did not violate the Confrontation Clause. The state did not appeal the decision of the appellate court that testimony from Detective Remington and from social workers Bolog and Little violated the Confrontation Clause and was therefore inadmissible.

Ohio law imposes a duty on all school officers and employees, including administrators and employees of child day-care centers, to report actual or suspected child abuse or neglect. R.C. 2151.421, the source of that duty, provides:

• (A)(1)(a) No person described in division (A)(1)(b) of this section who is acting in an official or professional capacity and knows, or has reasonable cause to suspect based on facts that would cause a reasonable person in a similar position to suspect, that a child under eighteen years of age * * * has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the child shall fail to immediately report that knowledge or reasonable cause to suspect to the entity or persons specified in this division. Except as provided in section 5120.173 of the Revised Code, the person making the report shall make it to the public children services agency or a municipal or county peace officer in the county in which the child resides or in which the abuse or neglect is occurring or has occurred. * * *
• (b) Division (A)(1)(a) of this section applies to any person who is an * * * administrator or employee of a child day-care center; * * * administrator or employee of a certified child care agency or other public or private children services agency; school teacher; school employee; school authority * * *.

In Yates v. Mansfield Bd. Of Edn., 102 Ohio St.3d 205, 808 N.E.2d 861, parr. 30, the Supreme Court of Ohio noted that R.C. 2151.421 imposes mandatory reporting duties on teachers and others listed in the statute because they are among the “most likely and qualified persons to encounter and identify abused and neglected children” and have “the necessary training or skill to detect the symptoms of child abuse.” As the court further explained:

• [w]hile * * * the primary purpose of reporting is to facilitate the protection of abused and neglected children rather than to punish those who maltreat them, it is clear that the General Assembly considered identification and/or prosecution of the perpetrator to be a necessary and appropriate adjunct in providing such protection, especially in the institutional setting. Thus, R.C. 2151.421(F)(1) and (2) provide that children services agencies shall investigate each report of known or suspected child abuse in cooperation with law enforcement to determine, among other things, “the cause of the injuries * * * and the person or persons responsible” and “make any recommendations to the county prosecuting attorney or city director of law that it considers necessary to protect any children that are brought to its attention.” (Emphasis added). Id. at parr. 25.

Thus, prosecution for criminal acts of child abuse is expressly contemplated by the reporting statute as a means of protecting children. And in order to effectuate that purpose, R.C. 2151.421(C) requires the person reporting the abuse to provide a written report if one is requested by the receiving agency. Further, a failure to report suspected child abuse is a criminal offense pursuant to R.C. 2151.421(C), and R.C. 2151.421(M) makes a mandated reporter “liable for compensatory and exemplary damages to the child who would have been the subject of the report that was not made.”

Statutory Materials

Ohio Revised Code (R.C.) 2903.11 Felonious assault.

• (A) No person shall knowingly do either of the following:
  (1) Cause serious physical harm to another or to another’s unborn;
  (2) Cause or attempt to cause physical harm to another or to another’s unborn by means of a deadly weapon or dangerous ordnance.
  ***
  (D)(1)(a) Whoever violates this section is guilty of felonious assault. Except as otherwise provided in this division or division (D)(1)(b) of this section, felonious assault is a felony of the second degree. If the victim of a violation of division (A) of this section is a peace officer or an investigator of the bureau of criminal identification and investigation, felonious assault is a felony of the first degree.
  (b) Regardless of whether the felonious assault is a felony of the first or second degree under division (D)(1)(a) of this section, if the offender also is convicted of or pleads guilty to a specification as described in section 2941.1423 of the Revised Code that was included in the indictment, count in the indictment, or information charging the offense, except as otherwise provided in this division or unless a longer prison term is required under any other provision of law, the court shall sentence the offender to a mandatory prison term as provided in division (B)(8) of section 2929.14 of the Revised Code. If the victim of the offense is a peace officer or an investigator of the bureau of criminal identification and investigation, and if the victim suffered serious physical harm as a result of the commission of the offense, felonious assault is a felony of the first degree, and the court, pursuant to division (F) of section 2929.13 of the Revised Code, shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the first degree.
  ***
  (E) As used in this section:
  ***
  (3) “Peace officer” has the same meaning as in section 2935.01 of the Revised Code.
  (5) “Investigator of the bureau of criminal identification and investigation” means an investigator of the bureau of criminal identification and investigation who is commissioned by the superintendent of the bureau as a special agent for the purpose of assisting law enforcement officers or providing emergency assistance to peace officers pursuant to authority granted under section 109.541 of the Revised Code.
  (6) “Investigator” has the same meaning as in section 109.541 of the Revised Code.

R.C. 2919.22. Endangering children

• (A) No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. It is not a violation of a duty of care, protection, or support under this division when the parent, guardian, custodian, or person having custody or control of a child treats the physical or mental illness or defect of the child by spiritual means through prayer alone, in accordance with the tenets of a recognized religious body.
  (B) No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age:
  (1) Abuse the child;

R.C. 2919.25. Domestic violence

• (A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.
  ***
  (F) As used in this section and sections 2919.251 and 2919.26 of the Revised Code:
  (1) "Family or household member" means any of the following:
  (a) Any of the following who is residing or has resided with the offender:
  (i) A spouse, a person living as a spouse, or a former spouse of the offender;
  (ii) A parent, a foster parent, or a child of the offender, or another person related by consanguinity or affinity to the offender;
  (iii) A parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the offender.
  (b) The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.
  (2) "Person living as a spouse" means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.

Instructions for Crafting the Motions In Limine:

The Supreme Court ruled that defendant Clark was entitled to a new trial based on the incorrect admission of the testimony from Detective Remington and from social workers Bolog and Little, which violated the Confrontation Clause and was therefore inadmissible.

But the court reverses the court of appeals' finding that any reporting under R.C. 2151.421(C) is by definition "Testimonial Hearsay" subject to the Confrontation Clause. Instead, the Supreme Court rules that the trial court must make a factual finding that under the circumstances of each case and each statement, the hearsay should be treated as "testimonial" for Confrontation Clause purposes.

Accordingly, trial judge Madeline Smith, has ordered both the prosecution and the defense to file Motions in Limine presenting their views of why the child's statements to the pre-school teachers should be admitted or excluded both under the applicable Federal Rules of Evidence and, if reached, the Confrontation Clause.

Judge Smith has already ruled that the child will not be permitted to testify at the retrial.

Facts taken, and modified to fit examination purposes, from STATE v. CLARK, 2013-Ohio-4731. I combined the factual description made by both the majority and the dissent into a single fact-pattern.

UPDATE: SUPREME COURT GRANTED CERT

The SCOTUS ruled that the child's statements were NOT testimonial under the 6th Amendment and that Mandatory Reporting statutes do not automatically convert non-testimonial statements into testimonial statements explaining that "mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution." Ohio v. Clark, 135 S.Ct. 2173 (2015), Alito, J., wrote for a unanimous court, with two concurring opinions.