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State v. Hawn6/30/2000
ue Jack committed suicide as Hawn claims.
First we note that with respect to the testimony by Dep. Michael Brem, Hawn failed to object on the grounds he now argues. Absent "plain error" the error, if any, in admitting Brem's testimony was waived by Hawn's failure to object. State v. Williams (1977), 51 Ohio St.2d 112; State v. Wickline (1990), 50 Ohio St.3d 114. Plain error does not exist unless it can be said that but for the error the outcome of the trial clearly would have been otherwise. State v. Long (1978), 53 Ohio St.2d 91. Any error in admitting Dep. Brem's testimony does not rise to the level of plain error.
Hawn did object to the testimony offered by Dep. Cavender. In order for Cavender's lay opinion testimony to be admissible, it must be (1) rationally based upon her perceptions and (2) helpful to an understanding of her testimony or the determination of a fact in issue. Evid.R. 701. We conclude that neither requirement has been met in this case.
Dep. Cavender's stated opinion that Hawn's crying and remorsefulness was faked was predicated solely on the fact that Cavender saw no tears in Hawn's eyes. From that, the jury was asked to infer that Hawn had killed Ms. Jack. We believe that Cavender's opinion, predicated as it was upon that single feature, is highly speculative when applied to this Defendant, who might just as well have been in a state of shock as a result of just seeing his girlfriend kill herself, which was his contention.
In State v. Stojetz (1999), 84 Ohio St.3d 452, the witness' testimony that the murder victim "appeared scared" was rationally based upon the witness seeing the victim literally running for his life when the Defendant attacked him. However, what "struck" Dep. Cavender when she observed Hawn shortly after this shooting occurred, that Hawn had no tears in his eyes, does not rationally support Officer Cavender's highly speculative opinion that Hawn's crying and remorse was faked. Moreover, that conclusion did nothing to help the jury understand Dep. Cavender's other testimony. It was simply an opinion offered on the genuineness of Hawn's feelings in order to rebut the veracity of his claim that Sue Jack had committed suicide. The slight probative value of this testimony was substantially outweighed by its highly speculative nature and the danger of unfair prejudice. Evid.R. 403(A). The trial court abused its discretion in admitting this lay opinion testimony over Hawn's objection.
Hawn's fourth assignment of error is sustained, in part.
FIFTH ASSIGNMENT OF ERROR
THE TRIAL COURT'S ERRONEOUS EVIDENTIARY RULINGS DEPRIVED APPELLANT HAWN OF HIS RIGHTS AGAINST SELF-INCRIMINATION AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION.
Hawn argues that the trial court's erroneous evidentiary rulings which improperly allowed testimony to be presented to the jury concerning the disingenuousness of his remorse and his previous other crimes, wrongs or acts of domestic violence deprived Hawn of his constitutional right to remain silent and not incriminate himself because it forced Hawn to testify at trial in order to rebut the inferences which this inadmissible evidence created, that Hawn killed Sue Jack because he had been abusive and at times physically violent toward her.
In support of his contention, Hawn relies upon Harrison v. United States (1968), 392 U.S. 219. In that case, during defendant's jury trial for murder defense counsel indicated in his opening statements that defendant would not take the stand and testify. After the State introduced defendant's confessions to police during it
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