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State v. Hawn6/30/2000
ems of proof. The incidents involved are often unwitnessed, and they are frequently a part of a pattern of serious abuse from which the victim has been unable to extricate herself. Those same inclinations likewise make some victims unwilling to testify against an abuser. The problems of proof which that presents are only compounded when the victim is deceased. Even so, the fundamental rules of evidence and procedure that limit the power of government to convict and punish an individual cannot be stretched beyond their purpose in order to accommodate the needs which those problems of proof present. Those rules must be observed if the constitutional right to due process of law that all of us enjoy is to survive. It is the duty of this court to protect that right, even in the face of the clamor and criticism that often results from our performance of that duty. That is the duty we discharge here.
Hawn's first, second, and third assignments of error are sustained.
FOURTH ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN PERMITTING IRRELEVANT AND PREJUDICIAL OPINION TESTIMONY VIOLATIVE OF EVID.R.701 THEREBY DENYING APPELLANT HAWN HIS RIGHTS TO DUE PROCESS OF LAW AND TO A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1 SECTION 16 OF THE OHIO CONSTITUTION.
Hawn challenges testimony by two police officers that in their opinion Hawn's crying and sobbing shortly after this shooting occurred was feigned. Deputy Patricia Cavender testified:
Q. Again, at the end of that entire conversation, was the defendant's eyes red, swollen, anything like that?
A. Not that I can recall. The biggest thing that struck me was that no tears came out of his eyes. He was not crying. His face was never wet that I could see.
Q. Have you ever seen people fake crying during your life?
MR. GREER:Objection.
THE COURT:Overruled. You may answer.
THE WITNESS: Yes.
BY MR. DAIDONE:
Q. How would you categorize the defendant's crying during your talking with him?
MR. GREER:Objection.
THE COURT:She may opine. Overruled. You may answer.
THE WITNESS: It struck me as though he was not crying; it was a fake sob.
Deputy Michael Brem testified:
Q. When you were in the family room, did you have an opportunity to view the defendant's face at this time?
A. Yes.
Q. Now, you indicated he was crying or sobbing. Can you explain that in a little more detail to the jury?
A. He was - he was crying without tears. It appeared to me that it was more a fake cry because it was more, you know, he didn't have any tears. It was (indicating). It was - it didn't have redness to the eyes. No tears. For a long period of time I never saw any tears come from him.
Evid.R. 701 which governs opinion testimony by lay witnesses provides:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue.
Stephen Hawn argues that the trial court abused its discretion in admitting this lay opinion testimony because these witnesses were not qualified to express an opinion on the genuineness of his remorse. Furthermore, Hawn asserts that the jury was capable of drawing its own conclusion with respect to that issue, and thus these opinions were not helpful in determining a fact in issue, whether S
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