State ex rel. Vindicator Printing Co. v. Watkins, 92-190

• Decision Date: 14 April 1993
• Docket Number: No. 92-190,92-190
• Citation: 609 N.E.2d 551,66 Ohio St.3d 129
• Parties: The STATE ex rel. VINDICATOR PRINTING COMPANY et al., Appellants, v. WATKINS, Trumbull County Prosecuting Attorney, Appellee.
• Court: Ohio Supreme Court

Page 129

66 Ohio St.3d 129

609 N.E.2d 551

The STATE ex rel. VINDICATOR PRINTING COMPANY et al., Appellants, v. WATKINS, Trumbull County Prosecuting Attorney, Appellee.

No. 92-190.

Supreme Court of Ohio.

Submitted Feb. 10, 1993.

Decided April 14, 1993.

On February 7, 1991, Tami Engstrom travelled to the Nickelodeon Lounge in Masury, Ohio, where her uncle, Danny Hivner, was employed. While at the Nickelodeon Lounge, Tami was in the company of Kenneth Biros, a regular customer of the tavern. At approximately 1:00 a.m. on February 8, 1991, Tami and Biros left the lounge in Biros' automobile to get food and coffee at a Perkins Pancake House. When Biros and Tami arrived at the restaurant, it was closed. Tami never returned to the Nickelodeon Lounge.

At 5:59 p.m. on February 8, 1991, Andrew Engstrom filed a missing persons report with the Hubbard Ohio Police Department relative to the disappearance of his wife, Tami. The report indicated that Tami was last seen with Biros.

At approximately 5:40 p.m. on February 9, 1991, Biros arrived at the Brookfield Township Police Department to discuss the disappearance of Tami with Brookfield Township and Sharon, Pennsylvania police officers. During these discussions, Biros disclosed to the police officers that something "real bad" happened the night Tami disappeared. Thereafter, Biros made a brief statement regarding the events following his departure from the Nickelodeon Lounge with Tami, including an account of circumstances surrounding her death and the location where the events transpired. After consultation with an attorney, Biros agreed to direct police officers to the location of Tami's body.

At approximately 7:00 p.m. on February 9, 1991, Brookfield Township Police Chief Thomas Jones contacted respondent-appellee, Dennis Watkins, the Trumbull County Prosecuting Attorney, regarding the circumstances of Tami's disappearance. In response to this information, appellee dispatched members of the Trumbull County Homicide Investigation and Prosecution Unit ("HIPU") to investigate the crime. The focus of the investigation at that time was Kenneth Biros.

At approximately 10:16 p.m. on February 9, 1991, Brookfield Township Police Chief Jones, HIPU Investigator James Teeple and Lieutenant Phillip Borger of the Trumbull County Sheriff's Department travelled to the location identified by Biros as the site of Tami's death. Various internal body parts were found and photographed at the location.

Thereafter, Biros and his attorney accompanied Lieutenant Murphy of the Brookfield Police Department to Venango County, Pennsylvania. After meeting with Pennsylvania State Police officers, Biros led the assembled officials to a location in Venango County where Tami's torso was discovered.

The journey continued into Butler County, Pennsylvania, where Tami's head and right lower leg were found. Photographs of this scene were taken by a Pennsylvania State Police trooper at 1:44 a.m. on February 10, 1991.

Thereafter, the investigation of Tami's death continued. The investigation generated a file which included witness statements, reports of police officers, laboratory reports and other documents.

On or about February 9-11, 1991, relators-appellants, Vindicator Printing Company and WFMJ Television, Inc., gave notice to appellee and the Brookfield Police Department that sought documents relating to Tami's disappearance and death and the criminal investigation of Biros.

On February 14, 1991, Biros was indicted in the Trumbull County Court of Common Pleas on single counts of aggravated murder, aggravated robbery, attempted rape, abuse of a corpse and felonious sexual penetration. On February 21, 1991, the Vindicator Printing Company served a request upon the Brookfield Township Police Department wherein Vindicator essentially sought witness statements, police reports, suspect statements, photographs, and other similar materials. While the Brookfield police supplied certain documents to appellants, other information was withheld on the advice of appellee. On April 11, 1991, appellants filed a motion to intervene in Biros' criminal trial. On April 24, 1991, appellants filed a motion to produce documents in that case. On June 3, 1991, the trial court denied the motion to produce-- concluding that appellants lacked standing to become parties to that action.

On May 24, 1991, appellants instituted the present action in mandamus in the Court of Appeals for Trumbull County seeking the documents which were the subject of their earlier request and the motion filed in Biros' criminal trial. The complaint for the writ of mandamus demanded the production of the following documents:

"A. All statements of any kind, nature, and description, all police reports and documents, all charts, graphs, photographs, computer data, all expert's reports and all written or pictorial material in the possession of the Respondent which relates to State of Ohio vs. Kenneth Biros, Trumbull County Common Pleas Court Case No. 91 CR 87.

"B. A statement given to the Sharon Police Department by Kenneth Biros, which statement was later produced to counsel for Kenneth Biros in the course of discovery proceedings in State of Ohio vs. Kenneth Biros.

"C. All other written or pictorial material produced by Respondent to Defendant's counsel in State of Ohio vs. Kenneth Biros.

"D. All other material relating to the case of State of Ohio vs. Kenneth Biros which is in the possession of Respondent and which are public documents within the meaning of R.C. 149.43 and the Judgment Entry handed down in State of Ohio, ex rel. vs. Hubbard Township Police Department, Eleventh District Court of Appeals Court Case No. 90 T-4491."

On July 21, 1991, appellee filed an answer wherein he stated (1) appellants had an adequate remedy of law by way of appeal of the denial of the motion to intervene in the underlying criminal action; (2) he was barred by the Code of Professional Responsibility from disclosing the requested information; (3) disclosure of the information would deny Biros a fair trial; (4) the requested information was exempt as trial preparation records pursuant to R.C. 149.43(A)(1) and (4); (5) the requested information was exempt from disclosure as confidential law enforcement investigatory records pursuant to R.C. 149.43(A)(1) and (2); and (6) the requested information is exempt from disclosure pursuant to other provisions of state or federal law (e.g., Crim.R. 16).

On September 20, 1991, the submission of evidence was commenced in the appellate court and continued until September 25, 1991. On October 18, 1991, Biros was convicted of aggravated murder in the death of Tami Engstrom. The evidentiary hearing in the present action was concluded on October 21, 1991.

On December 31, 1991, the court of appeals rendered judgment in the mandamus action. The court held (1) that appellants did not have an adequate remedy at law by way of appeal because it was clear they lacked standing to intervene in Biros' criminal proceeding; (2) that, pursuant to the decision of this court in State ex rel. Clark v. Toledo (1990), 54 Ohio St.3d 55, 560 N.E.2d 1313, appellants were entitled to no more information than could be obtained by Biros in the underlying action pursuant to Crim.R. 16, but that, irrespective of its interpretation of Clark, supra, the court was required by R.C. 149.43 and the decision of this court in State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786, to conduct an in camera review of the documents at issue. Following a review of these documents, the court ordered the release of those documents designated as Exhibits AAA, but denied disclosure of those documents designated as Exhibits BBB. Release of Exhibits AAA was stayed pending appeal.

The cause is now before this court pursuant to an appeal as of right.

Manchester, Bennett, Powers & Ullman, Stephen T. Bolton and Joseph R. Young, Jr., Youngstown, for appellants.

Dennis Watkins, Trumbull County Pros. Atty., Patrick McCarthy, Asst. Pros. Atty., and Martin F. White, Warren, for appellee.

Paul L. Cox, Columbus, urging affirmance for amicus curiae, Fraternal Order of Police of Ohio, Inc.

Joseph T. Deters and William E. Breyer, Cincinnati, urging affirmance for amicus curiae, Ohio Pros. Attys. Assn.

Baker & Hostetler and David L. Marburger, Cleveland, urging reversal for amici curiae, Beacon Journal Publishing Co., Plain Dealer Pub. Co., Dayton Newspapers, Inc. and Ohio Newspaper Ass'n.

Reinhart Law Office and Harry R. Reinhart, Columbus, Gold, Rotatori, Schwartz & Gibbons Co., and John S. Pyle, Cleveland, urging reversal for amicus curiae, Ohio Ass'n of Crim. Defense Lawyers.

PER CURIAM.

I

The present action is brought pursuant to R.C. 149.43. It provides in relevant part:

"(A) As used in this section:

"(1) 'Public record' means any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, except medical records, records pertaining to adoption, probation, and parole proceedings, records pertaining to actions under section 2151.85 of the Revised Code and to appeals of actions arising under that section, records listed in division (A) of section 3107.42 of the Revised Code, trial preparation records, confidential law enforcement investigatory records, and records the release of which is prohibited by state or federal law.

"(2) 'Confidential law enforcement investigatory record' means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:

"(a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised;

"(b) Information provided by...