State v. Rahman

Holmes, J.,

concurring in part and dissenting in part. I am in accord with the discussion of the majority concerning the privilege that should have been afforded the husband relative to certain testimony of the wife, and agree that the admission of such testimony constituted error. However, I strongly disagree with its harmless error analysis. The unduly narrow views expressed by the majority are neither the standard used by this court nor that adopted by the United States Supreme Court. Furthermore, the majority, in my view, entirely misread the record in the application of its harmless error doctrine. I must, therefore, dissent.

The majority sets forth what it conceives to be the standard for review of errors alleged to be harmless. Chapman v. California (1967), 386 U.S. 18, 23-24 , is quoted for the proposition that: “An error in admitting plainly relevant evidence which possibly influenced the jury * * * cannot * * * be conceived of as harmless.” Other parts of Chapman are quoted indirectly through other state cases to show that erroneously admitted evidence cannot be harmless if “[it] may have contributed to the accused’s conviction.” See State v. Ferguson (1983), 5 Ohio St. 3d 160, 166 , at fn. 5; State v. Maurer (1984), 15 Ohio St. 3d 239, 264 ; State v. Bayless (1976), 48 Ohio St. *158 2d 73, 106 [ 2 O.O.3d 249 ], vacated in part on other grounds (1978), 438 U.S. 911 .

The view taken by the majority is an unusually narrow view of the harmless error doctrine and is also impractical as applied. Under the rule as applied within the case, little or no mistakenly admitted evidence could survive without being determined to be prejudicial. All evidence presented against an accused can, in some degree, be said to influence the jury and contribute to the verdict.

The majority’s use of the direct quotation from Chapman, supra, at 23-24 , is incomplete and does not, in fact, accurately represent the harmless error doctrine currently utilized by the United States Supreme Court. The full text of that quotation is as follows:

“An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy, be conceived of as harmless. Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless.” (Emphasis added.)

In Fahy v. Connecticut (1963), 375 U.S. 85 , Chief Justice Warren concluded that harmless error was “not * * * whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” (Emphasis added.) Id. at 86-87 . This overly sensitive test is the very one actually applied by the majority, and which was impliedly rejected in Chapman .

In Harrington v. California (1968), 395 U.S. 250, 254 , the court declined to follow “the minority view in Chapman ( 386 U.S., at 42-45 ) that a departure from constitutional procedures should result in automatic reversal, regardless of the weight of the [other] evidence.” Also, the dissenters in Harrington correctly observed the majority opinion as a departure from the “reasonable possibility that the evidence * * * might have contributed” test gleaned from the Chapman language and based on Fahy .

Further, the same dissenters felt that for an error to be harmless, “it must have made no contribution to a criminal conviction.” Harrington, supra, at 255 (Brennan, J., dissenting). This view I believe to have been rejected by the Harrington majority. They asserted that whenever the other untainted evidence is overwhelmingly in support of a conviction, the tainted evidence is harmless. Id. at 254 .

Additionally, in United States v. Hasting (1983), 461 U.S. 499, 508-509 , it was stated that “taking into account the reality of a human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial. * * *” (Citations omitted.) Chapman was read to stand for the mere proposition that there now exists no per se rule of exclusion for constitutional errors and that *159 when “on the whole record, the error was harmless beyond a reasonable doubt,” there should be no reversal. Hasting, swpra, at 508.

In this discussion of what constitutes “harmless error,” it must be pointed out that the present case is distinguishable from Chapman and other cases relied on by the majority. In Chapman , the error complained of was far more egregious than in the present case. There the prosecutor in closing continually attacked the defendant’s failure to testify, which was a violation of defendant’s Fifth and Fourteenth Amendment right to remain silent. In the present case, despite the majority’s vague references to a violation of appellant’s constitutional right to a fair trial, there is, in fact, no constitutional provision cited, nor could there be, for the error complained of is predicated on a right granted by statute, i.e., R.C. 2945.42. Since the present case does not involve “trial errors which violate the Constitution,” it does not “automatically call for reversal,” which the majority standard herein would accomplish. See Chapman, supra, at 23 , and Harrington, supra, at 252 .

The correct standard of review to be applied here was set forth in State v. Williams (1983), 6 Ohio St. 3d 281 . At paragraph six of the syllabus in Williams , it is stated that:

“Where * * * error in the admission of evidence is extant, such error is harmless beyond a reasonable doubt if the remaining evidence, standing alone, constitutes overwhelming proof of defendant’s guilt.”

Although not citing Harrington, Williams applied the analysis set forth in Harrington which was later affirmed in Hasting. Williams avoids the automatic reversal and requires an analysis of the entire record to determine whether the remaining untainted evidence may determine guilt.

In the case here, the majority also relies on Crim. R. 52(A) which defines harmless error as “[a]ny error * * * which does not affect substantial rights.” It is reasoned that since appellant’s statutory privilege was affected, the error is not harmless. This reasoning likewise treats a single error like an infectious disease which destroys the vitality of all other evidence. Such a per se application of Crim. R. 52(A) was laid to rest in State v. Williams, supra. In that case, the majority asserted that the Ohio Rules of Criminal Procedure, including Crim. R. 52(A), were subject to “the Chapman constitutionally oriented test.” Id. at 287.

In order to hold that error is harmless, this court must review the entire record and determine “if the remaining evidence, standing alone, constitutes overwhelming proof of * * * guilt.” Williams, supra, at paragraph six of the syllabus. See, also, Hasting, supra, at 510 , and Harrington, supra, at 254 . Because the record is lengthy and the facts are interwoven in a complex fashion, it is necessary to fully set forth the evidence.

It must initially be determined what portion of the wife’s testimony regarding the morning’s events should be excluded from further consideration. Clearly, the wife is entitled to relate that she and appellant went to the welfare office, and did so to investigate the suspected theft of *160 the family’s food stamps. She may also relate that the food stamps were expected on Saturday, but did not arrive. The conversation at the welfare office is admissible since it was between appellant, his wife, and a welfare officer. They discussed whether the victim may have stolen the family’s food stamp allotment, and the fact that the food stamps were missing. The welfare officer indicated that the food stamps may actually have been sent out in the victim’s name by mistake.

While Mrs. Rahman should not have testified to the contents of her later communications with appellant in the automobile, the fact of appellant’s anger and consequent erratic driving is certainly admissible since it was an “act done in the known presence or hearing of a third person * * *.” R.C. 2945.42. It can hardly be contended that such actions done publicly, with no regard for who observed them, could be expected to receive consideration as private marital communications. The same holds true with regard to the anger exhibited by appellant which occurred outside the welfare office. Where there was no attempt to make a confidential communication or act, the courts of this state can hardly be expected to infer one. Thus, with no reference to any confidential communication, there are sufficient available, untainted facts to prove appellant’s intense anger at the victim after the visit to the welfare office.

Furthermore, the testimony offered at trial covered over six hundred pages. There were sixteen witnesses other than the wife. Of the one hundred four pages of her testimony, her total testimony regarding the drive from the welfare office took exactly one page. An even smaller amount of that single page contains statements which are part of the privileged conversation. Nevertheless, the prosecutor’s theory of the case was hardly that appellant murdered the victim from a sustained ragej which theory would have led to a verdict of voluntary manslaughter. Instead, the state proved that only appellant could have carried out the particular detailed acts attendant to the aggravated murder of DeWayne Taylor.

From the remaining five hundred ninety-nine plus pages of evidence, it would be, as a matter of simple arithmetic, impossible for anyone other than appellant to have committed the murder at issue. The victim was last seen alive in his bed at approximately nine o’clock on Monday morning. His body was discovered in the basement on the next afternoon. This approximates to thirty hours. The amount of time that appellant admitted to spending alone in the home, plus the time allowed for by the house being totally inaccessible, or by the presence of other family members, accounts for almost all of this time. There simply was no time for the murder, movement of the body, and the attendant clean-up to have been accomplished within any of the unaccounted-for time periods.

The extensive clean-up of the crime scene, including the victim’s body, the murder weapons and premises, leads inescapably to the concluson that appellant committed this murder. DeWayne’s murder was accomplished by five blows to the head by a blunt object, followed by eight stab wounds *161 to the chest. There is no dispute to the fact that this was done while the victim lay in his bed in the upstairs bedroom. This method of killing invariably causes a wide distribution of the victim’s blood. However, the bedroom in which the murder occurred had comparatively few available bloodstains.

Almost all of those bloodstains found in the bedroom had been washed. While blood was discovered where it had splashed on the desk drawer handle, very little was found on the walls around the bed. Several large stains on the floor were completely washed such that the carpet remained water-soaked when police later inspected the bedroom. Blood was also discovered on the doorposts of the basement door as well as on the back porch and steps. Nearly all of the bloodstains were so thoroughly cleaned that they would not react to many of the typical lab tests.

The victim’s body was removed from the bed, taken down the stairs, out the back door, over the porch, and down the steps into the basement. The bloody bedsheets were removed and the mattress was cleaned. The victim was found, semi-garbed, in clothing that had no bloodstains. This indicated that his clothing had been changed. The bloody bedsheets and victim’s clothing were disposed of. The weapons utilized were cleaned and either disposed of or hidden. Finally, when the body was discovered lying in the basement, it was surrounded by water and there was testimony that it had been washed down at that very location.

An ordinary murderer would simply have left the body where the killing occurred, and fled. The obvious, clear and sole implication was that only one who lived in the house, who wished to cover evidence that the murder had occurred in the home, would have gone to all the trouble of removing the large amount of evidence. Nor could the above labors have been done quickly. Further, these actions could only have been the beginning portion of a plan to ultimately dispose of the body. The fact that the body was being kept overnight in the basement, apparently under lock and key, indicates that the murderer was close at hand and had control of access to the basement.

The evidence indicated conclusively that the victim had to have died on Monday morning. The coroner’s testimony was that, due to the degree of rigor mortis remaining in the victim’s body, the murder must have been committed before 3:00 a.m., Tuesday morning, and probably sometime before Monday midnight. As previously mentioned, the time between Monday afternoon and Tuesday morning was accounted for by the presence in the home of other family members. Testimony also established that the home was inaccessible from about 11:30 a.m. Monday morning until early Monday evening. Also, that the victim was last seen in bed and was murdered in bed indicates that the murder occurred before he got out of bed on Monday morning. The victim was not seen alive by any family member after Monday morning. Finally, a new, large blood stain was observed in the bedroom for the first time on Monday night, when a rug *162 which had been placed over it was accidentally kicked aside. The witness was positive that the blood was not there the day before.

With these factors in view, appellant’s presence and activities in the home Monday morning have very powerful significance. Due to her anxiety from the welfare office meeting, appellant’s wife returned home about 11:15 on Monday morning. She discovered that all the doors in the house were locked, and the door to which she had a key was double-locked from the inside. This was most unusual, and there were several witnesses who said that appellant never bothered to lock the doors while he was home during the day. The wife knocked loudly and called out minutes before appellant finally answered from the top of the stairway next to the upstairs bedroom. After some five minutes passed, he opened the back kitchen door, but just as the wife entered, appellant suggested that they go for a drive. The wife observed that he was covered with sweat. She also noticed that the back porch and the basement steps, over which DeWayne’s body was moved, had just been washed. Both the porch and steps were still wet. The only conclusion which a reasonable juror could draw from such facts is that appellant was, that very morning, engaged in cleaning up evidence of his crime.

Later that day, when the children came home from school, they found all the doors locked; one of them had a key which he tried. As earlier, the key would not work and the inside lock was observed to be on. Their testimony was that the doors were always kept unlocked for them. It becomes obvious that appellant wanted absolute control of the premises so that his clean-up efforts would remain undetected. Further, appellant denied that he double-locked the front door and stated that the front door was not double-locked at all on Monday. However, several witnesses testified to the contrary, including two who had keys to that door. Therefore, instead of merely impeaching his credibility, this transparent testimony was most inculpatory.

The basement had only one entrance which was an outside door in the back of the house. The family always kept this door locked since family valuables were stored there. There were only two keys to the lock, which were possessed by appellant and his wife. Also, police officers testified that because this door was improperly fastened to the bottom hinge, it required two of them to lock the door; one to lift it into place, and the other to engage the lock. However, appellant, because of his unusual strength, customarily opened and closed this door by himself. It is apparent that the body had been placed in the basement shortly after the murder and remained unmoved until discovery. When the body was discovered on Tuesday afternoon, it was observed that the door had not been, in any way, forced open. Further, this was the first time that the door had been observed open since Sunday night, when appellant locked it. Thus, access to the area where the body was kept, during the time of its keeping, was controlled by only one person.

*163 The most convincing and direct of all evidence presented was the blood-splattered shirt found discarded, along with a pair of pants, about a block from the home. The wife’s strong and unequivocal testimony-established the uniqueness of this particular shirt. It had unusual stitching, and was purchased by the wife as a gift for appellant. She had seen him wear it many times. She also identified appellant’s needlework in various alterations on the pants. An area store security guard testified that she had observed appellant wearing a similar shirt. The undeniable inference is that appellant’s clothing was worn during the commission of the murder and then disposed of as part of the general clean-up of evidence.

The small portion of the wife’s testimony considered inadmissible could hardly have permeated the foregoing evidence. Nor did it constitute the only evidence as to the intense animosity and hostility between the appellant and the victim. Other testimony about their relationship established that bitterness existed between them. One witness asserted that the victim “didn’t get along with him [appellant] too well. He didn’t like his ways.” Another stated “They didn’t like each other. They always argued, and he [appellant] didn’t want DeWayne staying there and things would come up missing.” Also, the wife’s untainted testimony described particulars of what can only be described as a bitter, ongoing feud between the victim and appellant. It could easily be concluded that murder resulted from their relationship.

After reviewing the balance of the untainted evidence, it must be concluded that the Williams test is more than met. Surely, there could be no reasonable doubt in any juror’s mind that Abdallah Rahman, a.k.a. Leroy Smiley, brutally murdered his stepson. Accordingly, I would affirm the judgment of the court of appeals.

Douglas, J., concurs in the foregoing dissenting opinion.