State v. Smith

¶1 concurring. As to the third1 assignment of error, however, I concur in judgment only for these reasons. In this case Detective Eugene Volk testified as a prosecution rebuttal witness concerning an oral statement which appellant had made to him. The officer recorded the statement in an official police report. He testified that he had reviewed the report before taking the witness stand. He did not use the report while testifying.

¶2 Since this officer used the police report to refresh his recollection, appellant, in hér third assignment of error, claims that the trial judge erred in refusing to conduct an in camera inspection of the report after Volk testified on direct examination to determine the existence of inconsistencies between the report and his testimony.

¶3 Although the language of appellant’s third assignment of error 20 is directed to the trial judge’s failure- to conduct the requested in camera inspection of the report used by the witness to refresh his recollection, appellant, to support this assignment of error, also argues she had the right to have such inspection for the additional reason she. had filed a timely pre-trial discovery motion pursuant to Criminal Rule 16(B)(1)(a)(ii). 21 In that motion she sought to inspect the written summaries of all oral statements made by appellant to the prosecutor or any law enforcement officer. She did not receive them.

¶4 The transcript of proceedings indicates that appellant, *201 in requesting an in camera inspection of 'Volk’s report, was-doing so for;the following reasons: . .,

¶5 1. The .witness had used the report to refresh his recollection. ,

¶6 ,2. Appellant was entitled to inspect the report its a matter of right under Criminal Buie 16(B)(1) (a)(ii). •_ The motion was overruled.

¶7 In the trial of a criminal case an accused’s- counsel is not entitled to inspect a written police report where an officer does' not-, use- the report while testifying notwithstanding the fact that he has read it to refresh his recollection prior to taking the witness stand. State v. Strain (1948), 84 Ohio. App. 229; State v. Taylor (1947), 83 Ohio App. 76.

¶8 Notations made in official police reports are a part of the prosecution’s internal work product and as such are not, subject to disclosure in a judicial proceeding. Kott v. Perini (1968), 15 Ohio Misc. 309.

¶9 For these reasons the trial judge was correct in deny^ ing appellant’s motion for an in camera inspection .of the. police report merely because Detective Volk had used it to refresh his recollection.

¶10 However, consideration of appellant’s second argument requires further analysis. Bule 16 of the Ohio Buies of Criminal Procedure has provided expanded discovery in criminal judicial proceedings. Upon motion duly made Criminal Buie 16(B)(1) (a) (ii) provides that the prosecuting attorney must permit inspection of the written, summaries of oral statements made by a defendant to a prosecutor or law, enforcement officer. A motion seeking such, discovery was made by the defendant in this ease. .

¶11 Criminal Buie 16(B) (2), however, specifies information possessed by the prosecutor whieh is not subject to disclosure. 22 Clearly this provision does not authorize or re *202 quire the disclosure of internal documents made by the prosecuting attorney or state agents in connection with the proséeution or investigation of a case except as otherwise specifically provided in the rule itself. In my view there is nothing contained in Criminal Rule 16(B)(1) (g) 23 which requires the court to conduct an in camerA inspection of material which is not subject to disclosure under Criminal Rule 16(B)(2).

¶12 Criminal Rule 16(B)(1)(g) which requires' an in camera inspection of witness’ statements by á trial judge is substantially the same as prior Ohio practice enunciated in the case of State v. White (1968), 15 Ohio St. 2d 146. This rule requires the trial judge to conduct an in camera inspection of a state witness’ prior written or recorded statement upon completion of his direct examination to determine the existence of inconsistencies between his testimony and the statement. Criminal Rule 16(B)(1)(g) is not applicable to reports, memoranda or other internal documents made by the prosecuting attorney or his agents in connection with the investigation or prosecution of a case. Criminal Rule 16(B)(2).

¶13 However, where a defendant, pursuant to Criminal Rule 16(B) (1) (a) (ii), has filed a motion for discovery requesting inspéction of the written summaries of oral-statements made by him to a prosecutor or police officer, the proseeut *203 Ing attorney has a duty to permit such inspection without delay. The failure to do so may have an adverse effect upon a defendant’s defense. For example, it may influence his decision in making a plea or in deciding whether or not to take the witness stand in the event of trial. It would be grossly unfair if the defendant were led to believe that no such statement exists and thereafter be confronted with one during trial. It is this type of situation which the criminal rules were expressly designed to prevent. When a defendant possesses this information he then has the ability to make a knowing and intelligent decision as to his course of conduct before and during trial.

¶14 Under the provision of Criminal Rule 16(D) 24 the prosecuting attorney, immediately upon its discovery, had the duty to permit defense counsel to inspect the written summary of defendant’s oral statement contained in Detective Volk’s written police report. Absent such inspection, the trial judge, to insure the defendant a fair trial, also had the duty to order the inspection of Detective Voile’s report or at a minimum to conduct an in camera inspection of that report.

¶15 Since the defendant was not permitted to inspect the report and since the trial judge failed to conduct an in camera inspection thereof to determine the existence of inconsistencies between the report and the witness’ testimony, appellant’s third assignment of error is well taken.