The Akron Legal News

Woman convicted of asking young son to kill her husband wins appeal

ANNIE YAMSON
Special to the Legal News
Published: April 8, 2016

A woman convicted of murdering her husband won a new trial this week when the 3rd District Court of Appeals found that the original case was rife with hearsay and spurious expert testimony.

The defendant, Judith Hawkey, brought the appeal from the judgment of the Defiance County Court of Common Pleas where she was found guilty of aggravated murder, insurance fraud and child endangering and sentenced to life in prison without parole.

The case stemmed from the death of Hawkey’s husband, Robert Breininger, who was shot and killed on Nov. 3, 2003 by his then 10-year-old son, Corey Breininger.

The shooting was investigated, ruled to be an accident and the case was closed.

It was not until 2012 when Corey turned 18, that he told people that the shooting of his father was not an accident and that he had done it at the instruction of Hawkey, who he claimed was extremely abusive.

Hawkey was indicted in 2013 and a subsequent jury trial resulted in guilty verdicts on all counts.

At issue in Hawkey’s appeal was testimony from three of the state’s witnesses: Lauren Beck, Dr. Ann Salter and Dr. Barbara Knox.

Lauren Beck was a former teacher of Corey and testified that, when Corey was in first grade, she suspected that he was being abused at home because she had seen bruising on him.

However, Beck never reported her suspicions to the police nor did she speak with Corey’s parents.

Beck was also permitted to testify about a conversation that she had with Corey in March 2012.

During a baseball game, he allegedly told Beck that Hawkey had physically abused him and forced him to shoot his father.

Salter, a clinical psychologist, testified that she tested Corey for psychopathy and ended up diagnosing him with post-traumatic stress disorder.

Based upon the abuse claimed by Corey, Salter stated that he had been traumatized although she admitted on cross examination that she did not review any of Corey’s medical records.

Knox, a board certified child abuse pediatrician, testified that Corey was a victim of “child torture,” an “extreme form of child abuse that includes multiple elements of abuse ... in more than one form and many times neglect.”

Knox recounted the many instances of abuse that Corey recounted, including beatings, burnings, attempted drownings and public humiliation.

But, on cross-examination, Knox admitted that there was no scientifically accepted definition of child torture and that it was an idea she came up with and had yet to be formally accepted by the medical community.

“Hawkey claims that the trial court erred by allowing Beck and Salter to testify to what Corey told them,” Judge John Willamowski wrote in the opinion he authored on behalf of the appellate panel.

During trial, Beck was allowed to testify about the things Corey told her in 2003 under the excited utterance exception to the hearsay rule which allows into evidence a “statement relating to a startling even or condition made while the declarant was under the stress of excitement caused by the event or condition.”

“Beck was permitted to testify to Corey’s statements at a ballgame in 2012 about what happened in 2003 pursuant to the excited utterance exception to the hearsay rule,” Willamowski wrote. “Hawkey claims that this was too far removed in time to qualify as an excited utterance.”

The court of appeals agreed, noting that Corey made his statement to Beck almost nine years after the incident, the first time that he changed his story after claiming that the shooting was an accident.

Additionally, the reviewing court held that Salter’s testimony was prejudicial because the evidence demonstrated that the state hired Salter to interview Corey to confirm aspects of his story.

“Corey was not sent to meet with Salter for the purpose of treatment,” Willamowski wrote. “In fact, Salter testified that she does not treat patients, but rather specializes in researching child abuse and violent crimes.”

With regard to Knox’s testimony, the court of appeals held that her personal theory of child torture was not admissible expert testimony.

Due to the prejudice caused by the testimony of the state’s witnesses, the court of appeals held that Hawkey was entitled to a new trial.

It then went on to note that much of the evidence at trial was shaky.

“A review of all the evidence presented in this case shows that this was not a clear case of guilt of Hawkey and the evidence was not overwhelming,” Willamowski wrote.

Photos of the crime scene did not corroborate Corey’s original story to investigators and the shooting was originally deemed an accident based solely on Corey’s statements to the police.

“Nine years later, Corey changes his story and indicates for the first time that the shooting was intentional and that he did it because he was forced to do so by Hawkey,” Willamowski wrote. “All of the conclusions reached by the professionals and the authorities were based upon what Corey told them.”

The appellate panel held that there was negligible evidence of child abuse and that Corey’s statements to investigators and doctors contained inconsistencies.

Medical records also did not reveal any signs of abuse.

“Outside of Corey’s testimony, there was little evidence offered to prove that Hawkey committed child endangerment, which was the theory predicating the murder charge,” Willamowski wrote.

Having found prejudicial errors in the original trial proceedings, the court of appeals concluded by remanding the case back to the Defiance County court.

Presiding Judge Richard Rogers and Judge Vernon Preston joined Willamowski to form the majority.

The case is cited State v. Hawkey, 2016-Ohio-1292.

[Back]