I respectfully dissent.
With respect to appellant's first assigned error the majority determined that under the evidence in the case, it was not error for the trial court to refuse to require a writing to be produced or preserved in the record for review on appeal because it had been used by Officer Dennis to refresh his memory prior to testifying.
At the beginning of cross-examination, Officer Dennis testified that he reviewed the report or memorandum prior to testifying:
"Q. Officer Dennis, have you used any type of written report or memorandum to refresh your recollection prior to coming to court today? *Page 117
"A. Yes.
"Q. When was that?
"A. Are you asking me when I looked at it?
"Q. Yes, sir.
"A. A few minutes ago.
"Q. Do you have any independent recollection of the events of January 5th and 6th of 1983?
"A. It was about a year ago, but I remember a little bit."
The trial court then denied appellant's motion for an incamera inspection of the report to determine whether it contained any inconsistencies. The trial court determined that "police reports are not discoverable." The statement or report was not preserved for appeal and therefore is not available as part of this record.
Statements governed by Crim. R. 16(B)(1)(g) and 16(C)(1)(d) are excepted from provisions of Evid. R. 612. Consequently, provisions of Crim. R. 16(B)(1)(g) and not Evid. R. 612 are applicable to the facts herein.
Crim. R. 16(B)(1)(g) provides:
"In camera inspection of witness' statement. Upon completion of a witness' direct examination at trial, the court on motion of the defendant shall conduct an in camera inspection of the witness' written or recorded statement with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement.
"If the court determines that inconsistencies exist, the statement shall be given to the defense attorney for use in cross-examination of the witness as to the inconsistencies.
"If the court determines that inconsistencies do not exist the statement shall not be given to the defense attorney and he shall not be permitted to cross-examine or comment thereon.
"Whenever the defense attorney is not given the entire statement, it shall be preserved in the records of the court to be made available to the appellate court in the event of an appeal."
Crim. R. 16(B)(2) makes the following exception:
"Information not subject to disclosure. Except as provided insubsections (B)(1)(a), (b), (d), (f), and (g), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal documents made by the prosecuting attorney or his agents in connection with the investigation or prosecution of the case, or of statements made by witnesses or prospective witnesses to state agents." (Emphasis added.)
This court with respect to this issue, has stated:
"When these portions of Criminal Rule 16 are read together they make it clear that in camera `inspection of reports, memoranda, or other internal documents made by the prosecuting attorney or his agents [i.e., the police] in connection with the investigation or prosecution of the case' is mandated when the person who prepared such report, memorandum or document takes the stand as a witness in a criminal proceeding to testify about the events of which he claims to have personal knowledge and which he recorded in that document." State v. Smith (1976), 50 Ohio App.2d 183,196 [4 O.O.3d 160].
This court has also held in State v. Owens (Oct. 2, 1980), Cuyahoga App. No. 40472, unreported, that:
"Where that report merely consists of a summary or description of events of which the officer has personal knowledge and is signed by him, and where that officer takes the stand to testify about those same events, the report should be treated, as a Crim. R. 16(B)(1)(g) witness' statement, see State v. Smith (1976),50 Ohio App.2d 183, 195-196, and the officer should be impeachable in the same fashion as any *Page 118 other witness." See State v. Johnson (1978), 62 Ohio App.2d 31 [16 O.O.3d 74].
Moreover, according to the holding in State v. Borsick (1978),62 Ohio App.2d 39 [16 O.O.3d 79], it was error for the trial court to refuse to impound the police report for purposes of appellate review:
"A witness' prior statement otherwise subject to the in camera inspection provisions of Criminal Rule 16(B)(1)(g) is not excepted from those provisions on the ground that the statement is the work product of the prosecution." Id. at syllabus.
I am further persuaded that the evidence does not support the majority determination in appellant's second assigned error that the trial court acted properly in failing to conduct an incamera inspection of a police report containing a statement of prosecuting witness Hildred Stewart, and in failing to include that statement in the record.
The record discloses that defense counsel initiated the following exchange during the testimony of state witness Hildred Stewart:
"MR. LEVINE: I am sorry, January 5 of last year, relating to that incident, did you give a written statement to the police either at Garfield or Cleveland?
"A. To Cleveland, yes, but not to Garfield.
"Q. Okay, the written statement, do you know when it was given?
"A. I don't know the date, no, sir.
"MR. LEVINE: I wonder if I might have it?
"(Thereupon a conference was had between Court and counsel, at the sidebar and off the record.)"
The state then produced a statement by Hildred Stewart which had been given to the Cleveland Police Department on January 13, 1983. After an in camera inspection of the January 13 statement, the trial court ruled that no material inconsistency existed between the January 13 statement and the testimony at trial.
During subsequent cross-examination, however, it became apparent that Stewart gave the Cleveland Police Department an earlier statement on January 5, 1983. Defense counsel, however, failed to move at that time for inspection of the January 5 statement.
The state argued and the majority agrees that appellant waived his right of inspection, because he failed to timely move for anin camera inspection pursuant to Crim. R. 16(B)(1)(g). I am persuaded, however, that the existence of this statement should have been disclosed during the examination of Stewart when defense counsel initially inquired.
Defense counsel inquired of the witness whether he gave a statement on January 5. The witness testified that he had given a statement, but did not know the date. The state then produced a statement given on January 13. Under these circumstances, the state had a clear duty to produce both statements, or at a minimum, the January 5 statement. Simply because the witness could not remember the date certainly should not endow the state with authority to pick and choose which statement it chooses to release for inspection. The appellant argued and I agree that the January 5 statement could have been critical to his defense.
Therefore, I would reverse this case and remand it to the trial court with orders to review the reports relevant to both witnesses to determine whether they are work product under Crim. R. 16(B)(2) or a statement under Crim. R. 16(B)(1)(g). If the court should determine that the reports are statements, the court must then decide if inconsistencies exist which are of such consequence that the failure to permit defense counsel to use the statement for impeachment purposes denied appellant a *Page 119 fair trial. If it were to so find, a new trial should be ordered. However, if the court were to determine that no such inconsistencies exist, or that it is not a statement, the court could reaffirm its former judgment and enter a new judgment upon the verdict of guilty. In either case, the document should be retained in the record for this or any other appellate court to review. State v. Corethers (June 23, 1983), Cuyahoga App. No. 45712, unreported, at 5-6.