State v. Walker
| Citation | 2022 Ohio 1684 |
| Decision Date | 19 May 2022 |
| Docket Number | 20AP-95 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Traver D. Walker, Defendant-Appellant. |
| Court | United States Court of Appeals (Ohio) |
APPEAL from the Franklin County Court of Common Pleas C.P.C. No 16CR-5764
On brief:
[G Gary Tyack], Prosecuting Attorney, and Michael P. Walton, for appellee.
Campbell Law, LLC, and April F. Campbell, for appellant.
Argued:
Michael P. Walton.
{¶ 1} Defendant-appellant, Traver D. Walker, appeals from the decision of the Franklin County Court of Common Pleas overruling his motion to dismiss an indictment charging him with two counts of assault under R.C. 2903.13 and one count of harassment with a bodily substance under R.C. 2921.38, as well as the jury verdict convicting him of one of the assault charges. After his timely appeal, the state filed a motion to revoke Mr. Walker's bond and to dismiss the appeal under the fugitive disentitlement doctrine because he "has been on the run and has not reported to his supervising officer." (June 23, 2020 Memo. in Supp. at 5.) Based on the state's concession at oral argument that Mr. Walker was in custody and there were no outstanding capias orders for his arrest, we overrule the motion as moot.[1] With regard to Mr. Walker's appeal, for the reasons that follow, we affirm the trial court's ruling on the motion to dismiss and the judgment of conviction.
{¶ 2} On October 17, 2016, the state indicted Mr. Walker. The indictment identified police officers as the alleged victims of each offense. Mr. Walker's motion to dismiss stated that the officers had responded to a domestic violence call on October 7, 2016, arising from an argument between himself and his mother. (Jan. 3, 2018 Mot. to Dismiss at 2.) Mr. Walker claimed that while the officers were arresting him, his girlfriend had "videotaped [his] abuse at the hands of the Columbus Police," who then "unlawfully took the cellular phones" containing the video. Id. He alleged that "the contents of the phone[s] were erased" while in the custody of a police detective, and that the destruction of the video evidence violated his right to Due Process under the United States Constitution. Id. at 2-4.
{¶ 3} The trial court held a hearing on Mr. Walker's motion on March 29, 2018. J.H. testified that she was Mr. Walker's girlfriend and that she lived with him at his mother's home. (Mar. 29, 2018 Tr. at 11.) She stated that on the day of the incident, her phone was in working order and was not password protected. Id. at 12-13. According to J.H., after the "altercation" between Mr. Walker and the police began, Id. at 14. J.H. testified that she then began recording the incident with her cellphone. Id. at 15.
{¶ 4} After the officers called for backup, one officer "pulled" J.H. outside and arrested her. Id. at 15-16. Officers took her "downtown," confiscated her phone, and held it for several weeks. Id. at 17-18. J.H. called the investigating detective four or five times before she received "a letter in the mail saying my phone was available to be picked up." Id. at 18. J.H. testified that when she received her phone back, "[i]t was completely wiped out," and the video she had taken of the incident was gone. Id. at 19. The phone "didn't have any pictures, any videos, any contacts." Id. at 32. Instead, J.H. claimed that there were "some weird apps on there that [she] didn't put on there." Id. She described them as "[technical apps, nothing that I've ever heard of before." Id. at 33. After receiving the phone back, she "gave it to [her] son to play with" because she had already obtained a new one. Id. at 34. By the time of the hearing, the phone was broken and no longer in her possession. Id. At 35.
{¶ 5} On cross-examination, J.H. clarified that she began recording after getting her son away from Mr. Walker and the officers: "I recorded them making the arrest, them abusing the defendants that they were arresting." Id. at 23. When asked why she recorded the incident, J.H. stated: "Because of all the police brutality that had been going on, I wanted to make sure I had evidence if anything happened that wasn't supposed to." Id. at 24. J.H. claimed that she was not involved in the incident and "just stood by silently and recorded," but also admitted that she had pled guilty to a charge of disorderly conduct arising from the incident based on allegations that she had attempted to interfere in the arrest. Id. at 24-25. J.H. stated that she had never watched the recording but believed that it was "three or four minutes" long and included "pretty much most of the incident" before she was pulled outside and arrested. Id. at 26. J.H. was adamant that the phone "did record" the incident but did not know "what was on it for sure" because she never had the chance to watch it. Id. at 30.
{¶ 6} Officer Matthew Resatar testified that he arrived at the scene after Officer Beck had handcuffed Mr. Walker. Id. at 83. He witnessed J.H. and Mr. Walker's mother "yelling" at Officer Beck to get off of Mr. Walker and recounted that they then yelled at him after he "took control" of Mr. Walker. Id. at 84-85. While Officer Resatar kept "yelling at them to stay back," he did not notice anyone recording the events with a cell phone. Id. at 85-86. He testified that he turned J.H.'s cell phone in as evidence but could not remember why. Id. at 89-91. Officer Resatar could only remember that he "was just told it needed to be submitted." Id. at 91.
{¶ 7} Officers Darren Stephens, Derek Beck, and Cory Kahoun were each present at the scene and testified that they did not see J.H or anyone recording the incident with a cell phone. Id. at 52, 65, 80.
{¶ 8} Detective Randy VanVorhis testified that he "generated a search warrant" to allow information to be retrieved from J.H.'s phone, and "at some point in the investigation" he "removed the phone from the property room and turned it over to another detective who does all of our phone forensics." Id. at 109. Detective VanVorhis stated that he did not examine J.H.'s phone or turn it on or off in the period between retrieving it and handing it over to James Howe, the forensic detective. Id. at 112. After Detective Howe examined the phone, Detective VanVorhis was in charge of retrieving it and returning it to J.H. Id. at 114-15.
{¶ 9} Evidence introduced at the hearing showed that Officer Resatar turned the phone into the property room on October 7, 2016. (Def. Ex. 3, Evidence and Property Inventory Form.) On October 25, 2016, the phone was released for "investigation" to Detective VanVorhis. (Def. Ex. 7, Property Evidence Transfer Form.) Detective VanVorhis obtained a search warrant for the phone on November 9, 2016 and gave the phone to the forensic investigator on November 10, 2016. (Mar. 29, 2018 Tr. at 119-21; see also Def. Ex. 8, Mobile Device Exam report (stating that phone was submitted for analysis on November 10, 2016 by Det. VanVorhis).)
{¶ 10} Detective James Howe, who performed the digital forensic analysis of J.H.'s phone, testified that it contained no video recording of the incident. Id. at 132. His analysis was not able to detect whether a video had been deleted from the phone. Id. at 132-33. Detective Howe testified that he did not delete anything from the phone. Id. at 140. He also stated that if someone had deleted a video file from the phone between October 7, 2016 and the date he performed his analysis of his contents, the type of analysis he performed would not be able to detect the deletion. Id. at 149.
{¶ 11} The trial court overruled Mr. Walker's motion to dismiss the indictment. Its ruling applied the test set forth in State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 73, "to determine whether the state's failure to preserve evidence rises to the level of a due process violation." (July 23, 2018 Decision & Entry at 4.) The trial court found that "the recording at issue is potentially useful," but that it was not materially exculpatory or that Mr. Walker had presented the evidence of bad faith necessary to demonstrate a due process violation under Powell. Id. at 4-5.
{¶ 12} After this ruling, the case proceeded to trial. Officer Beck testified that he and his partner, Officer Darren Stephens, were dispatched to respond to a domestic violence call by Mr. Walker's mother around 2:30 a.m. on October 7, 2016. (Nov. 13, 2019 Tr. At 263, 268.) When they arrived, there was "a lot of screaming" and Mr. Walker's mother told Officer Beck that "her two kids had been fighting and she want[ed] them both to leave." Id. at 268. Mr. Walker's sister "was gathering her things" to leave and "was pretty cooperative." Id. After she left, Mr. Walker began gathering his things to leave, but was still "highly agitated, pacing around," arguing with his mother, and "screaming." Id.
{¶ 13} According to Officer Beck, Mr. Walker had left the house but he and his mother continued arguing while he stood outside waiting for a ride. Id. at 270-71. Mr Walker's friend Y.A. arrived and he, Mr. Walker and his mother "continued to go back and forth, arguing, name calling, [and using] degrading words." Id. at 271. Officer Beck stated that Mr. Walker "[s]tarted directing his anger towards" himself and Officer Stephens, "punched the mailbox," and "stormed inside" his mother's house. Id. at 272. She followed him down a hallway and "was yelling at him" while Officer Beck "followed both behind [them] to try to, you know, separate the two." Id. at 272. Once they reached a back bedroom, she "threw a punch at Mr. Walker" and then he "threw a punch back at her." Id. Officer Beck separated them and "started taking her...
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