Opinion
No. 76-174
Decided December 30, 1976.
Criminal law — Evidence — Tape recordings — Not discoverable, when — Crim. R. 16(C)(2) — Aggravated murder.
Under Crim. R. 16(C)(2), a tape recording of statements made by witnesses or prospective witnesses to the defense attorney or his agents is not discoverable.
APPEAL from the Court of Appeals for Summit County.
On January 15, 1975, Sidney Cohen was shot and killed in his pawn shop in Akron. On January 21, 1975, James Lockett (defendant-appellant herein), Al Parker, Nathan Earl Dew, and Sandra Lockett were indicted by the Grand Jury for the Cohen homicide. Each defendant was charged with aggravated murder (felony murder), including specifications, and with aggravated robbery.
Parker's trial was scheduled first and prior to the commencement thereof, he pleaded guilty to aggravated murder, without specifications.
At the appellant's trial, Parker was the state's chief witness. He testified that, prior to his coming to Akron on January 14, 1975, he was a resident of Orange, New Jersey. During the weekend prior to coming to Akron, Parker said that he met Joan Baxter and Sandra Lockett in Jersey City, New Jersey, on Friday, January 10, 1975, for the first time. Baxter and Sandra Lockett were residents of Akron, were visiting the New Jersey area, and were apparently staying with relatives.
Parker introduced Baxter and Sandra Lockett to his friend, Nathan Earl Dew. On January 13, 1975, Dew borrowed $60 from Parker to make bail for Sandra Lockett's brother, the appellant. After appellant's release from jail, Joan Baxter, Sandra Lockett, David Ford, and the appellant planned to return to Akron in Sandra's car. Dew and Parker accompanied the group to Akron. They arrived in Akron on January 14, 1975. Parker and Dew, along with the others, stayed at the Lockett residence.
Since the appellant did not repay Parker as planned and because Dew and Parker had no money to go home, they discussed pawning Dew's ring. The appellant, Sandra Lockett, Dew and Parker were participating in this conversation when Sandra Lockett suggested a robbery. None of the four had a gun so the appellant suggested robbing a pawn shop where they could ask to see a gun, load it, and then use it to rob the pawn shop. At the suggestion of the appellant, Parker was elected to be the triggerman.
The next morning, January 15, 1975, Dew, Sandra Lockett, and the appellant, using Parker's car, picked up Parker at Baxter's apartment. According to Parker, the robbery plan called for Dew and the appellant to enter Syd's Market Loan in Akron and ostensibly to pawn Dew's ring. Parker was then to follow, look at a gun, and carry out the robbery, Sandra Lockett was to stay in Parker's car, wait two minutes, and then start the engine.
The robbery occurred about the noon hour. Parker testified that the appellant and Dew entered the pawn shop as planned. Parker followed approximately one minute later. Parker indicated that when he entered, the owner, Sidney Cohen, was the only person present besides Parker, Dew, and the appellant. At Parker's request, Cohen showed him a gun. Parker returned this gun and, at this point, Dew pointed out a larger gun, which Parker requested. Parker then took two cartridges out of his pocket, loaded the gun and declared, "This is a stick-up." Parker testified that he (Parker) put the gun "onto him." Parker claimed that at the time the gun was fired, his finger was on the trigger. Although Cohen was struck by the bullet, he activated the burglar alarm behind the counter. The trio ran, Parker keeping the gun as he escaped from the store. He testified that Sandra Lockett was in his car when he returned and that the engine was running, as planned, but Dew and appellant did not return to Parker's car. Sandra Lockett took the gun from Parker and put it in her purse. They then proceeded to the home of Sandra's aunt, during which time Parker explained to her what had happened.
Shortly after the robbery, the appellant was arrested by the Akron city police.
A Summit County Grand Jury subsequently indicted appellant for aggravated murder with specifications, in violation of R.C. 2903.01(B), 2929.04(A)(3), and 2929.04(A)(7). The Grand Jury also indicted the appellant for aggravated robbery, in violation of R.C. 2911.01(A)(1).
At the commencement of the appellant's trial, the appellant was offered the same negotiated plea that was accepted by Parker (aggravated murder). Appellant rejected this offer and was subsequently found guilty on March 28, 1975, by a jury, of both counts of the indictment, and guilty of the specification in R.C. 2929.04(A)(7). Upon completion of the statutory sentencing requirements, the trial court found no mitigating circumstances and sentenced the appellant to death.
Upon appeal, the Court of Appeals affirmed the judgment of conviction. The cause is now before this court, upon appeal, as of right.
Mr. Stephan M. Gabalac, prosecuting attorney, and Mr. Frederic L. Zuch, for appellee.
Messrs. Jurus, Young, Hunter, Workman Reed, Mr. John R. Workman, Mr. Gary M. Schweickart and Mr. Dennis N. Balske, for appellant.
The principal witness against the appellant was Parker, the triggerman. Defense counsel had previously interviewed Parker in jail. The interview was recorded, and Parker made an exculpatory statement about the participation of the appellant in the commission of the robbery and the murder. At trial, Parker gave a different account of the facts and incriminated the appellant. When defense counsel attempted to impeach Parker by playing the recording, the trial court, upon objection of the state, refused to permit its use.
Throughout the earlier stages of the case, the defense and prosecution had freely exchanged trial preparation materials under a Crim. R. 16 reciprocity agreement. The trial court held that the tape of the recorded interview should have been disclosed (as a "tangible object" under Crim. R. 16(C)(1)(a)) under these earlier exchanges. Since the appellant's counsel had failed to reveal the tape to the prosecutor at these appropriate times, the court excluded the tape as a disciplinary measure under Crim. R. 16(E)(3). After the conviction, the appellant asked for a re-examination of the court's ruling and, pursuant to Crim. R. 33(A)(5), moved for a new trial. The trial court, consistent with its earlier order, denied the motion. The issue is whether the trial court erred in denying the appellant's motion for a new trial.
During the trial, the appellant argued that the tape was not discoverable under the discovery reciprocity agreement. Under Crim. R. 16(C)(1)(c), the appellant contended that only the names of witnesses need be disclosed. Although appellant objected to the court's ruling, he did not proffer the tape into the record. Later, in appellant's motion for a new trial, the court was asked to consider the correctness of its earlier ruling. Appellant argued that the suppression of the tape-recorded statement of Parker was contrary to Crim. R. 16(C)(2). The tape recording and a transcript thereof was admitted in evidence. The motion for a new trial was denied.
In this case, the trial court made two separate rulings. In the first, the court excluded the tape and prevented the defense counsel from effectively cross-examining the state's chief witness, Parker. In the second, counsel moved for a new trial. The tape and transcript thereof were admitted in evidence at the hearing on the motion for a new trial. Therefore, only the second order is reviewable.
Differentiating the two court rulings is significant, for upon an examination of the record, it is not clear which trial court order the appellant's counsel was appealing. In the notice of appeal, filed June 11, 1975, it is clear that he was appealing the order denying the defendant's motion for a new trial. App. R. 3(C). However, in filing the assignment of errors in the Court of Appeals, it is equally clear that the defense attorney was assigning as error the trial court's earlier order. App. R. 9(B). It was this particular order that the appellate court considered in its opinion. Similarly, it is from the appellate court's ruling on this earlier order that the appellant has appealed to this court.
Inasmuch as appellant specified in his notice of appeal that he was appealing the order denying his motion for a new trial, and because the question of law is identical in both the court's rulings, the record supports the conclusion that the appellant has preserved the right to assert in this court that the trial court erred in refusing to permit use of the tape at the trial.
In the motion for a new trial, the appellant argued that the trial court was in error because the tape was privileged under Crim. R. 16(C)(2). That rule provides, in part, the following:
"Except as provided in subsections C(1)(b) and (d), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal documents made by the defense attorney or his agents in connection with the investigation or defense of the case, or of statements made by witnesses or prospective witnesses to the defense attorney or his agents."
Appellant argues that this tape is privileged as a statement made by a witness to the defense attorney. Although the appellant admits that the interview was recorded, thus embodying Parker's exculpatory remarks in a "tangible object," arguably discoverable under Crim. R. 16(C)(1)(a), the act of recording should not have rendered that material discoverable. If such were the case, appellant concludes, the work product exception as given in Crim. R. 16(C)(2) could be easily circumvented.
This court finds the appellant's argument persuasive. Regardless of the tape's status as a "tangible object" under the reciprocity agreement, the language in Crim. R. 16(C)(2) is clear and unambiguous: "* * * this rule does not authorize the discovery of * * * statements made by witnesses or prospective witnesses to the defense attorney or his agents." Parker was clearly a witness in this case. The impeaching statement was likewise one gathered by the defense attorney. In refusing to permit use of the tape, the trial court erred. Moreover, because the state's case rested squarely on the shoulders and credibility of the co-defendant who turned state's evidence, the court's order was prejudicial to the appellant's rights. Appellant's first proposition of law is well taken. He is entitled to a new trial.
Having reversed on this issue, this court need not consider the appellant's other propositions of law.
The judgment of the Court of Appeals is reversed, and the cause is remanded to the trial court for a new trial.
Judgment reversed.
HERBERT, STERN, W. BROWN and P. BROWN, JJ., concur.
CORRIGAN and CELEBREZZE, JJ., dissent.