State v. Dana Keith Thompson
| Decision Date | 05 May 1993 |
| Docket Number | 93-LW-1966,2135 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. DANA KEITH THOMPSON, Defendant-Appellant C.A. |
| Court | Ohio Court of Appeals |
APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF MEDINA, OHIO CASE NO. 10555.
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
DECISION
The defendant in this matter was convicted, after a jury trial of two counts of trafficking in drugs in violation of subsections (1) and (5) of Section 2925.03(A) of the Ohio Revised Code. He appealed to this Court, originally assigning three errors: (1) that the trial court incorrectly denied him access through discover to certain police reports; (2) that the trial court improperly allowed the State to introduce a tape recording of a telephone conversation in which defendant ha participated; and (3) that the jury's verdict was against the manifest weight of the evidence. Defendant subsequently retained new counsel and moved for leave to file additional assignments of error. That motion was granted and he filed six "supplemental" assignments of error. We find all nine of defendant's assignments of error to be without merit and the decision of the trial court is affirmed.
Defendant's conviction stemmed from two drug transactions that occurred on consecutive days during May, 1991. Both transactions involved sales of drugs to an undercover police officer, and on both occasions, a confidential police informant participated in the sales.
The first transaction was a sale of percocet tablets. At trial, defendant claimed that he did not know that the sale was going to occur until immediately before it took place and that he resisted involvement in the transaction. He testified that the confidential informant had picked him up at his home and offered to buy him lunch. He claimed that the informant drove him to a parking lot at a K Mart where the transaction occurred. According to the defendant, the informant took a bag containing the percocet from the car's glove box and sold them to the undercover police officer who had been waiting for them at that location. Defendant testified that, although the informant wanted defendant to hand the tablets to the officer, he refused t do so and did not participate in the transaction in any way.
On the following day, the informant again picked defendant up at his home and they then picked up another individual. The three of them next met with the undercover officer and arrangements were made for the informant, the defendant and the third individual to travel to East Cleveland, obtain crack cocaine and deliver it to the officer. Those arrangements were carried out. Defendant admitted that he knew what was occurring during the course of the second transaction, but again denied that he participated in any way other than being present.
The undercover officer testified at trial and provided a different view of defendant's role in the transactions. The officer testified that, during the first transaction, he (the officer) stood by the window on the driver's side of the automobile adjacent to where the informant was seated. Defendant, who was in the front passenger seat, picked the percocet up from the center console of the automobile and handed it to the informant, who than passed it to the officer. He also testified that, when asked how many tablets were in the bag containing the percocet,defendant responded that there were sixty-seven (67). He stated that he asked if the price was still three dollars apiece and that defendant became upset and said:.
I thought we agreed on $200 for the bag.
I said, okay, that would be fine, if there was sixty-seven in there.
Finally, the officer said that he handed the money to the informant who placed it on the center console of the automobile.
The officer's testimony regarding the second transaction was that defendant participated in price negotiations for the crack cocaine. Specifically, he said that defendant agreed to a reduction in price of $30 for the cocaine because the officer told him that the bag of percocet from the previous day had contained only fifty-seven tablets instead of sixty-seven tablets. He also testified that, when he asked who wanted to count the money, defendant said that he would, took it from the officer and counted it, testified that the third individual present during the second transaction actually delivered the crack cocaine to him. The jury found defendant guilty on both counts.
Defendant's first assignment of error was that the trial court incorrectly denied him access to certain police reports through discovery. Specifically, prior to trial, defendant filed a "Discovery Motion" by which he sought all Brunswick City police reports and all police reports of the Medina-Wayne Drug Enforcement Agency pertaining to himself and the confidential informant who was involved in the transactions that led to his prosecution. According to his motion," defendant was requesting" the prosecuting attorney to produce the reports "pursuant to Ohio Criminal Rule 16 and Ohio Revised Code Section 149. 43."The prosecutor did not produce the requested documents and defendant moved for an order compelling discovery. The trial court denied defendant's motion, stating that police reports are not discoverable.
Defendant has argued that he was entitled to discovery of the requested police reports pursuant to Section 149.43 of the Ohio Revised Code, Ohio's public records statute. He has not argued that those reports were discoverable pursuant to Rule 16 of the Ohio Rules of Criminal Procedure.
There have been a number of Ohio Supreme Court decisions that have explored different aspects of the use of Section 149.43 by a party to a criminal action. For example, in State ex rel. Scanlon v. Deters (1989), 45 Ohio St.3d 376, the Court found that a criminal defendant, who had attempted to obtain documents through a request pursuant to Section 149.43, could not maintain a mandamus action to challenge the refusal to provide those documents. Rather, inasmuch as the documents he sought were discoverable pursuant to Rule 16 of the Ohio Rules of Criminal Procedure, he had an adequate alternative remedy:
Where Crim.R. 16 provides a relator an adequate alternative remedy to R.C. 149.43, he cannot be granted a writ of mandamus ordering the production of public records available under such rule.
Id., paragraph two of the syllabus.
In State ex rel. Shane v. New Philadelphia Police Dept. (1990), 56 Ohio St.3d 36, the Supreme Court again considered an appeal from a denial of a writ of mandamus following refusal to provide documents to a criminal defendant pursuant to a Section 149.43 request. The requested documents in Shane, however, unlike those that were requested in Scanlon, were not clearly available to the defendant through the use of Rule 16 of the Ohio Rules of Criminal Procedure. Regardless of that distinction, the Supreme Court concluded that the writ of mandamus had properly been refused because of the availability of an adequate alternative remedy:
Shane, Id. at 37 (citations omitted). It was appropriate, therefore, for the defendant in this case to seek relief in the dial court from the prosecutor's alleged refusal to comply with Section 149.43.
In State ex rel. Clark v. Toledo (1990), 54 Ohio St.3d 55, the Supreme Court found that a criminal defendant, who had exhausted the direct appeals of his conviction, was entitled to documents available pursuant to Section 149.43 in order to search for evidence to support a petition for post-conviction relief. The Court reached that conclusion even though those same documents would not have been available to the defendant pursuant to Rule 16 of the Ohio Rules of Criminal Procedure. In doing so, the Court specifically noted that it was not addressing "the possible application of R.C. 149.43 to original trial proceedings." Id. at 57. See State ex rel. Vindicator Printing Co. v. Watkins (1993), 66 Ohio St.3d 129, 134. Through his first assignment of error, the defendant in this case has attempted to test that application. We find, however, that it is not necessary for us to reach the question left open by the Supreme Court in Clark.
As noted previously, defendant in this case attempted to obtain the documents he desired by "requesting" that they be produced by the prosecuting attorney and then moving for an order compelling discovery. Documents of a governmental unit are properly sought pursuant to Section 149.43, however, through a request to the person responsible for keeping those documents. See State ex rel. Nelson v. Fuerst (1993), 66 Ohio St.3d 47-48. The prosecuting attorney was not the custodian of the documents sought by defendant in this case.
In State v. Forehope (1991), 71 Ohio App.3d 435, the Court of Appeals for the Fifth District considered facts similar to those in this case. In that case, the defendant had attempted to obtain the documents he desired through a request to the prosecutor and through a subpoena duces tecum. The court concluded that the defendant had not made a proper request pursuant to Section 149.43:
In the case sub judice, appellant did not make a proper public records request. A motion asking the court to compel the prosecutor to...
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