State v. Sampson, 86AP-1156
| Decision Date | 25 June 1987 |
| Docket Number | No. 86AP-1156,86AP-1156 |
| Citation | 36 Ohio App.3d 166,521 N.E.2d 1149 |
| Parties | The STATE of Ohio, Appellee, v. SAMPSON, Appellant. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
In a prosecution for aggravated vehicular homicide, where paint samples are taken from defendant's vehicle and the vehicle is later destroyed pursuant to routine police procedures, the defendant cannot prevail on his claim that the police attempted to circumvent the disclosure requirements of Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, when (1) defendant could have secured the vehicle's release during a six-week period, (2) the police acted in good faith pursuant to routine procedures, (3) the vehicle had no apparent exculpatory value, and (4) the defendant had reasonable alternate means of investigating and preparing his case.
Michael Miller, Pros. Atty. and Bonnie L. Maxton, Columbus, for appellee.
Myron Shwartz, Columbus, for appellant Mark Allen Sampson.
This is an appeal from a judgment of the Franklin County Court of Common Pleas.
Defendant was indicted on one count of aggravated vehicular homicide (R.C. 2903.06) with a specification alleging physical harm. He entered a not guilty plea, which he later withdrew, and pleaded no contest to the indictment including the specification. He was sentenced to two and one-half years in jail and his license was permanently revoked pursuant to R.C. 4507.16.
The facts, read into the record at the no contest plea, are as follows: Wendy Burke, nineteen years of age, on December 15, 1985 was walking to work along Livingston Avenue when she was struck by defendant's truck. He did not stop but continued three hundred feet down the road where he was involved in a head-on collision with another vehicle. Several witnesses observed that defendant was intoxicated.
Defendant was taken to the county jail and administered a Breathalyzer test. His blood-alcohol content was .27. He did not mention that he had been involved in another accident. His truck was impounded by the police because of the second accident which resulted in the OMVI arrest. There were no other OMVI arrests made that night on that stretch of road. The victim's body was not discovered until the following morning.
Thereafter, on January 2, 1986, defendant was indicted for aggravated vehicular homicide when paint chips taken from his truck were analyzed and found by the Columbus Police Crime Lab to be identical to the paint chips recovered from under the victim's body.
The court overruled defendant's motion to dismiss prior to his no contest plea. Defendant contended that the state had destroyed his truck which prevented him from conducting his own comparative analysis of the paint chips.
Sergeant Jerry Kimmel, supervisor of the police impounding office and custodian of the records, testified at the motion hearing that the impounding lot took custody of defendant's truck on December 15, 1985. He stated that the truck remained at the lot until it was classified as a junk vehicle pursuant to statute on February 5, 1986. Later the truck was removed from the impounding lot and destroyed by an outside contractor.
Sergeant Kimmel testified that defendant's vehicle was authorized to be released on December 17, 1985. He stated that once a vehicle is authorized to be released, the owner may recover it at the lot. Kimmel also testified that the records do not reflect that either defendant or anyone else had attempted to claim the truck prior to its removal from the impounding lot.
Sergeant Kimmel stated that he was unaware that the truck was evidence in a vehicular homicide investigation or that paint chip samples had been removed. The sergeant's testimony was that the records are used mostly for administrative and not investigatory purposes. They showed that the truck was impounded in connection with an OMVI offense. He testified that he did not recall if defendant had telephoned his office, and that the impounding lot does not routinely keep records of telephone calls it receives.
After the truck was authorized for release, it remained at the impounding lot for an additional week to ten days. When the truck was unclaimed, defendant's address was obtained from his vehicle registration through the LEADS computer. A certified letter was sent to that address on January 23, 1986. Defendant was informed that he must recover the truck or it would be destroyed as a junk motor vehicle. The letter was returned by the post office "Return to Sender, No Forwarding in File, Unable to Forward" dated January 25, 1986. The vehicle was classified as a junk vehicle and subsequently destroyed by an outside contractor.
Defendant introduced a traffic ticket, on cross-examination, which he received to show that he had been living at a new address on Noe-Bixby Road. Sergeant Kimmel, however, stated that the impounding lot does not receive municipal court affidavits showing that traffic offenders have changed addresses.
Defendant testified that he had made numerous telephone calls to the impounding lot to obtain possession of his truck and some tools located in the back of the truck. He said that he called the impounding lot on December 17, 1985, the date that Sergeant Kimmel said the truck was authorized to be released, and was told that his vehicle was being held under police investigation and that he could not recover it without a release. Defendant testified, on cross-examination, that he spoke to Sergeant Kimmel on numerous occasions after December 17, which, as noted above, was the date which Sergeant Kimmel testified that the vehicle had been authorized for release.
Defendant also conceded that neither he nor anyone else had ever attempted to obtain possession of the truck during the time span when it remained on the lot from December 15, 1985 through February 5, 1986. Defendant also stated that his truck had previously been impounded and that he was familiar with the procedure for recovering vehicles.
The trial court overruled defendant's motion to dismiss and proceeded with the no contest plea. Defendant advances a single...
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