State v. Hawn6/30/2000
xplanation, the court applied Evid.R. 803(3) to hold that "the testimony of state-of-mind witnesses, that the victim was fearful and apprehensive, was not inadmissible hearsay and was properly admitted." Id., at p. 22. Professors Giannelli and Snyder have observed:
Although the victim's statements satisfied the requirements for Rule 803(3), the Court failed to explain why the victim's fear of the defendant was relevant. The Court has noted in subsequent cases that, in Apanovitch, it "limited this type of testimony to that reflecting the state of mind of the victim, but not the reasons underlying that state of mind." State v. Awkal, 76 Ohio St.3d 324, 331, N.E.2d 960 (1996), cert. denied, 519 U.S. 1095, 117 S.Ct.776, 136 L.Ed.2d 720 (1997). Accord State v. Frazier, 73 Ohio St.3d 323, 338, 652 N.E.2d 1000 (1995), cert. denied, 516 U.S. 1095, 116 S.Ct. 820, 133 L.Ed.2d 763 (1996). The Court in both cases failed to acknowledge the relevance issue. Giannelli/Snyder, Rules of Evidence Handbook, 2000 Ed., Authors' Comment to Evid.R. 803(3), at p. 322.
Apanovitch and subsequent cases which apply the same rule, State v. Awkal (1996), 76 Ohio St.3d 324, and State v. Frazier (1995), 73 Ohio St.3d 323, and more recently State v. Reynolds (1998), 80 U.S. 3d 670, suggest that any relevance difficulty that evidence of the victim's declarations presents is cured by excluding evidence of why the victim feared his alleged murderer. That exclusion derives from the exception in Evid.R. 803(3) applicable to evidence of the reason for the declarant's "belief." The belief exception also appears in Fed.R.Evid. 803(3), and was discussed in United States v. Cohen (C.A. 5, 1980), 651 F.2d 1223, on which Apanovitch relies. Significantly, in Cohen the declarant and the alleged actor were the same person, not different people as was the case in Apanovitch, Awkal, Frazier, and Reynolds.
The Supreme Court decided the same issue differently the year after Apanovitch was decided, in State v. Greer (1988), 39 Ohio St.3d 236. There, a defendant who was charged with murder was not allowed to introduce evidence that the alleged victim feared another person, which would suggest that the other person was the perpetrator. The Supreme Court found no error in excluding the evidence, stating: "Insofar as there may be derivative inferences favorable to appellant, it must be admitted that they would require the jury to speculate and not merely infer." Id. at p. 244.
It is impossible to reconcile the holding in Greer excluding declarations that a murder victim made concerning his fearful state of mind with the holdings in Apanovitch and other cases permitting it. In Apanovitch the evidence concerned the defendant and was offered by the State. In Greer, the evidence concerned someone else and was offered by the defendant. Nevertheless, in both cases the evidence was an out-of-court declaration that the victim had made reflecting his state of mind and was offered as probative of the defendant's guilt or innocence. The better view is stated in Greer; that evidence of the victim's declarations invites speculation with respect to those issues and should be excluded, no matter which party offers the evidence.
The application of Evid.R. 803(3) that Apanovitch and subsequent decisions approved presents a further problem. Proof that the victim feared the accused necessarily creates an inference that the accused had threatened or otherwise harmed the victim or someone else in order for that fear to have been instilled in the victim's mind. Such prior acts on the part of the accused are typically collateral to the criminal conduct alleged and, to the extent that they demonstrate a propensity to commit bad acts, ar
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