State v. Tomblin
Decision Date | 18 November 1981 |
Citation | 443 N.E.2d 529,3 Ohio App.3d 17,3 OBR 18 |
Parties | , 3 O.B.R. 18 The STATE of Ohio, Appellee, v. TOMBLIN, Appellant. * |
Court | Ohio Court of Appeals |
Syllabus by the Court
1. Where a defendant, pursuant to Crim.R. 16(B)(1)(a)(i), has filed a motion for discovery of any written or recorded statements made by him, the prosecuting attorney has a duty to permit such discovery without delay. If the prosecuting attorney fails to permit defendant's inspection of his statement, defendant may not know or remember what is contained in his statement and he will not be able knowingly and intelligently to decide whether or not to take the witness stand and thus to put his credibility in issue.
2. A defendant's statement given to a police officer is under the control of the prosecuting attorney since the police are a part of the state and its prosecutorial machinery.
3. The nondisclosure of defendant's statement by the prosecuting attorney after defendant's request for same denies defendant his right of due process and fair trial because defendant is handicapped in his preparation for trial in deciding whether or not to take the witness stand.
Paul J. Gorman, Cincinnati, for appellee.
Swain & Hardin and Donald E. Hardin, Cincinnati, for appellant.
This cause came on to be heard upon an appeal from the Hamilton County Municipal Court.
Defendant-appellant, Donald Tomblin, at the time a supervisor in the Communications Section of the Cincinnati Police Division, was charged by a subordinate employee with criminal assault in violation of R.C. 2903.13. After his initial appearance on the charge, appellant pursuant to Crim.R. 16 filed a demand for discovery followed by a motion for discovery, which included a request for written or recorded statements made by appellant. In response the prosecutor filed a motion for a protective order in regard to appellant's tape-recorded statement given to the Cincinnati Police Division. The prosecutor contended that he did not intend to make the statement a part of his case file, and moreover that the statement was not available to or within the possession, custody or control of the state. Appellant filed a motion in opposition. The trial court placed an entry of record denying appellant direct access to his tape-recorded statement but allowing him to submit questions to the court regarding that statement. Appellant submitted to the court eighteen questions which the trial court failed to answer. In a trial by the court appellant was found guilty as charged and was fined fifty dollars and costs.
Appellant propounds as his first assignment of error:
"The trial court erred to the prejudice of the defendant-appellant in refusing to order the state to provide him an opportunity to make or receive a copy of a tape-recorded statement he was required to provide on the night of the incident to sworn police officers employed by the same political subdivision as the prosecutor."
Appellant relies on Crim.R. 16 and the Due Process Clause of the United States Constitution in his contention that he had a right to make or receive a copy of his tape-recorded statement and that the denial of access to such statement violated his right to due process and a fair trial.
Crim.R. 16, as relevant, provides:
The rule is mandatory in nature. When confronted with the issue of a Crim.R. 16(B)(1)(a)(i) motion requesting inspection of the written summaries of oral statements made by defendant to a prosecutor or police officer, the concurring opinion of Judge Thomas J. Parrino in State v. Smith (1976), 50 Ohio App.2d 183, 362 N.E.2d 1239 , stated, at pages 202-203, that "the prosecuting attorney has a duty to permit such inspection without delay."
We similarly find that where a defendant pursuant to Crim.R. 16(B)(1)(a)(i) has filed a motion for discovery of any written or recorded statements made by him, the prosecuting attorney has a duty to permit such discovery. The specter of the prosecution's failure to permit a defendant's inspection of his statement is that if a defendant does not know or remember what is contained in his statement, he can not knowingly and intelligently decide whether or not to...
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