Reversal of Conviction Based on Improperly Admitted Spousal Testimony Requires 'Plain Error' Analysis

Where Trial Court Failed to Make a Proper Competency Determination

State v. Davis, Slip Opinion No. 2010-Ohio-5706.
Cuyahoga App. No. 91324, 2009-Ohio-5217. Judgment of the court of appeals reversed, and cause remanded to the court of appeals.
Brown, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5706.pdf

(Nov. 30, 2010) The Supreme Court of Ohio ruled today that a court of appeals may not reverse a criminal conviction based on the improper admission of spousal testimony in violation of Evidence Rule 601(B) unless the appellate court conducts a plain-error analysis and determines that the outcome of the trial would have been different if the spousal testimony had not been admitted.

The Court’s 7-0 decision, which reversed a ruling by the 8th District Court of Appeals, was authored by Justice Terrence O’Donnell.

Ohio Evidence Rule 601(B) provides that the spouse of a criminal defendant is not competent (not legally eligible) to testify against his or her spouse at trial unless the defendant is charged with a crime against the spouse or their children, or unless the spouse freely elects to testify.

In this case, William Davis of Cleveland was charged with multiple counts of rape and other sexual offenses committed over an extended period of time against two young girls who were his nieces. The victims testified in court and gave detailed accounts of multiple incidents in which Davis engaged in sex acts with them.

The defendant’s wife, Alberta Davis was called by the state to testify as a witness. After Mrs. Davis was sworn and identified herself as the defendant’s wife, the trial judge did not engage in a required discussion with her to determine if she was aware of her right not to testify and to confirm that she had freely chosen to testify. Defense counsel did not object to the calling of Mrs. Davis as a witness by the state and did not object to the court’s failure to review her competency before permitting her to testify. During her testimony, Mrs. Davis first denied and then admitted that she had discussed with her husband a plan to record a conversation with one of the victims, and stated that she had discussed with her husband moving away from Cleveland to somewhere he could avoid being around children.

Davis was convicted on 19 counts of rape and four counts of gross sexual imposition, and was sentenced to life in prison. Davis appealed his convictions, but did not raise as an assignment of error the trial court’s failure to make a competency determination before allowing his wife to testify. On review, the 8th District Court of Appeals sua sponte (on its own initiative) took note of the absence of a competency determination, and ruled that that mistake constituted “reversible plain error.” Without analyzing the impact of Mrs. Davis’ testimony on the outcome of the case, the court of appeals held that it was “compelled” by the Supreme Court of Ohio’s decisions in State v. Adamson (1995) and State v. Brown (2007) to reverse Davis’ convictions and remand the case for a new trial based on the absence of a competency determination. The state sought and was granted Supreme Court review of the 8th District’s ruling.

In today’s unanimous Supreme Court decision, Justice O’Donnell wrote: “we are concerned with the proper method for reviewing the admission of spousal testimony in violation of Evid.R. 601(B) when the accused fails to object: whether it is structural error requiring reversal without a showing of prejudice to the accused, or whether it is plain error subject to a determination that but for the error, the outcome of the trial would have been different.”

“... Admittedly, our statement in Brown that a violation of Evid.R. 601(B) ‘constitutes reversible plain error’ may have been misunderstood to mean that the admission of incompetent spousal testimony is structural error requiring automatic reversal without consideration of whether the testimony prejudiced the accused. ... A trial court’s error in failing to comply with Evid.R. 601(B) neither necessarily permeates the entire trial nor prevents the trial from reliably serving its function as a vehicle for determining guilt or innocence. To the contrary, Evid.R. 601(B) excludes evidence that is relevant to the ascertainment of truth. Notably, the testimony of the spouse of the accused is not deemed incompetent because of its inherent unreliability, but rather to uphold ‘the policy of protecting the marital relationship from “dissension” and the “natural repugnance” for convicting a defendant upon the testimony of his or her “intimate life partner.’”

“We therefore clarify our statement in Brown that a violation of Evid.R. 601(B) ‘constitutes reversible plain error.’ ... Here, Alberta Davis appeared in response to a subpoena issued by the prosecutor and testified in the state’s case-in-chief. ... Because the record does not show that the trial court informed her that she could choose not to testify against her husband or that it found that she had voluntarily elected to testify, the court committed a plain or obvious error in admitting her testimony. However, the court of appeals did not complete a plain-error analysis in this case, because it did not determine whether, but for the trial court error in admitting spousal testimony, the outcome of the trial would have been different, and it did not decide that reversal is necessary to prevent a manifest miscarriage of justice.”

“Our decisions in Brown and Adamson do not require a reversal for plain error in all instances in which a trial court, without objection, admits spousal testimony in violation of Evid.R. 601(B). Rather, before noticing plain error and reversing a conviction, appellate courts should conduct a plain-error analysis and determine that but for the error in admitting spousal testimony, the outcome of the trial would have been different and that reversal is necessary to prevent a manifest miscarriage of justice. Because the court of appeals did not conduct a plain-error analysis before reversing Davis’ convictions, its judgment is reversed and this matter is remanded for further proceedings consistent with this opinion.”

Contacts
T. Allan Regas, 216.443.7800, for the state and Cuyahoga County prosecutor's office.

Katherine Szudy, 614.466.5394, for William Davis.