[Cite as Toledo v. Strickland, 2016-Ohio-8385.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
City of Toledo Court of Appeals No. L-16-1001
Appellant Trial Court No. CRB-15-15186
v.
Dwayne Nigel Strickland DECISION AND JUDGMENT
Appellee Decided: December 23, 2016
*****
David Toska, City of Toledo Chief Prosecutor, and
Henry Schaefer, Assistant Prosecutor, for appellant.
Lawrence A. Gold, for appellee.
*****
OSOWIK, J.
{¶ 1} This is a state appeal from a December 28, 2015 judgment of the Toledo
Municipal Court, striking the testimony of appellant’s sole witness in response to the
commission of a fundamental discovery violation by appellant. For the reasons set forth
below, this court affirms the judgment of the trial court.
{¶ 2} Appellant, the city of Toledo, sets forth the following sole assignment of
error:
1. THE TRIAL COURT ERRED WHEN IT STRUCK THE
TEST[E]MONY OF OFFICER SCOTT.
{¶ 3} The following undisputed facts are relevant to this appeal. On October 7,
2015, defendant Dwayne Strickland was operating a motor vehicle in the vicinity of
Central Avenue and Stickney Avenue in Toledo. The defendant encountered a Toledo
police officer at that location. The Toledo police officer was wearing a body camera
equipped with both video and audio at the time of the incident. The officer’s equipment
recorded the interaction with the defendant. The recordings have not been reviewed and
are not part of the record in this matter. The fact that the independent recordings, which
reflect the truth of what transpired, are not part of the record constitutes the fundamental
issue in this case.
{¶ 4} The defendant maintains that he was subjected to police brutality during the
incident. Conversely, the officer maintains that the defendant resisted arrest. Again, the
incident was captured and recorded, with both audio and video, by the officer’s body
camera. The content of the recordings remains unknown.
{¶ 5} On October 7, 2015, defendant was charged with one count of carrying a
concealed weapon, in violation of R.C. 2923.12, one count of resisting arrest, in violation
of R.C. 2921.33, along with several minor traffic offenses.
2.
{¶ 6} On October 14, 2015, counsel was appointed to represent defendant on the
above-described pending cases. On December 1, 2015, counsel for defendant filed a
written request with appellant for discovery to be provided pursuant to the discovery
rules set forth in Crim.R. 16.
{¶ 7} Crim.R. 16(B)(1) establishes in pertinent part, “Upon receipt of a written
demand for discovery * * * the prosecuting attorney shall provide copies or photographs,
or permit counsel for the defendant to copy or photograph * * * any written or recorded
statement by the defendant.”
{¶ 8} In response to the defendant’s official discovery request, appellant provided
a copy of the written Toledo police report of the incident reflecting that the arresting
officer was wearing a body camera at the time of the arrest. No further discovery
materials were provided or offered to be made available for review and/or copying by
appellant.
{¶ 9} On December 16, 2015, the matter proceeded to trial. Appellant furnished
the testimony of a single witness, the arresting officer who had worn the body camera
that recorded the events.
{¶ 10} Given the failure of the discovery process to enable counsel for the
defendant to access and review the body cam video and audio to evaluate the proper
defense based upon the recordings, the defendant took the stand himself to refute the
testimony of the officer. During his testimony, the defendant stated to the court that the
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officer had been wearing a body camera at the time of the incident and that the court
could discover the truth by reviewing the recordings.
{¶ 11} Following this revelation at trial by defendant, the trial court recessed to
determine the proper course of action. Ultimately, the trial court determined that
appellant had committed a discovery violation by failing to furnish the body cam video to
counsel for the defendant or take any actions which would have enabled the review of the
video by counsel for defendant prior to the defendant electing to take the witness stand in
his own defense. The trial court held in pertinent part, “The purpose of the criminal rules
is to prevent unfair surprise or trial by ambush. Even unintentional discovery violations
have adverse effect. And, in this case, the court feels compelled to strike the testimony of
the state’s sole witness. No other remedy would mitigate the harm done.” This appeal
ensued.
{¶ 12} In the sole assignment of error, appellant maintains that the trial court erred
in striking the testimony of the arresting officer. In support, appellant suggests that the
fact that a copy of the police report reflecting that a body camera was worn by the officer
was provided in reply to defendant’s Crim.R. 16 discovery motion somehow negates the
possibility of a discovery violation in this case. We do not concur.
{¶ 13} Crim.R. 16(B)(1) clearly mandates that any written or recorded statement
by a defendant shall [emphasis added] be provided or permission furnished for it to be
copied or photographed to counsel for the defendant. It is undisputed that this discovery
mandate did not occur in this case. It was not provided or made available to counsel for
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defendant prior to trial. Accordingly, the defendant elected to testify on his own behalf to
refute the officer’s testimony.
{¶ 14} The Supreme Court of Ohio delineated in the seminal case of State v.
Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, that the factors which a
trial court must consider in crafting an appropriate discretionary discovery sanction or
remedy in response to a violation includes whether the violation was willful, whether the
review of the undisclosed materials would have benefited the defendant in preparation for
trial, and whether the defendant was prejudiced by the violation.
{¶ 15} In conjunction with this, discovery disputes such as the one underlying this
case lie well within the discretion of the trial court and are evaluated pursuant to an abuse
of discretion standard of review. An abuse of discretion connotes more than a mere error
of law or judgment, it requires demonstration that the trial court’s decision was arbitrary,
unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450
N.E.2d 1140 (1983).
{¶ 16} In applying these relevant principles to this matter, we find that although
the record does not reflect that appellant’s failure to comply with Crim.R. 16 was
intentional, given the mention of the body camera in the written report that was drafted
by appellant’s sole witness and the fact that it was subsequently in appellant’s possession,
it can certainly be construed as neglectful.
{¶ 17} Regardless, the record does reflect the determinative importance to the
defendant of having foreknowledge of the content of the video and audio recordings in
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preparation for trial and the resultant prejudice to the defendant of taking the witness
stand in his own defense without benefit of the foreknowledge of the content of the video
and audio recordings.
{¶ 18} Lastly, we note that it is not persuasive for appellant to suggest that
requiring appellant to have taken some action in either providing a copy of the video to
the defense or offering arrangements for the video to be inspected and copied by the
defense somehow constitutes mandating appellant to conduct “hand holding” of appellee
in a scenario in which the recordings were made by appellant’s sole witness, were
referenced in the report created by that witness, is the property of appellant and
appellant’s witness, and is fundamental to the truth of the matter.
{¶ 19} Given these facts and circumstances, we find that appellant has failed to
demonstrate that the disputed trial court discovery sanction in response to appellant’s
Crim.R. 16 violation was arbitrary, unreasonable or unconscionable. As such, we find
appellant’s sole assignment of error not well-taken.
{¶ 20} Wherefore, the judgment of the Toledo Municipal Court is hereby
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
6.
Toledo v. Strickland
C.A. No. L-16-1001
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
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