Opinion
No. 88-2045
Submitted April 18, 1990 —
Decided August 8, 1990.
Criminal law — Crim. R. 16(B) does not require the prosecution to disclose the significance to the prosecution of information sought to be discovered by the defendant — Identification of accused not tainted by subsequent identification procedure, when.
O.Jur 3d Criminal Law §§ 1077, 1078.
1. Crim. R. 16(B) does not require the prosecution to disclose to the defendant the significance to the prosecution of information sought to be discovered by the defendant. The rule only requires the prosecution to disclose, and to permit the defendant to obtain, the information sought.
O.Jur 3d Criminal Law §§ 202, 203.
2. Where a witness has already identified a suspect in circumstances which are not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, a subsequent identification does not taint the original identification. ( State v. Kaiser, 56 Ohio St.2d 29, 10 O.O. 3d 75, 381 N.E.2d 633, paragraph one of the syllabus, approved and followed.)
CROSS-APPEAL from the Court of Appeals for Highland County, No. 661.
On October 24, 1986, Karen Jones, who resided in Highland County with her husband, Tony Jones, and a six-year-old son, returned home from work around 5:30 p.m. Tony left home around 8:00 p.m. that evening to perform in a band in Piketon, Ohio. The Joneses, as was their customary practice, kept a spare key to their house above the back door that evening. Karen fell asleep on the couch around 9:30 p.m. while watching television.
Karen was awakened sometime in the early morning hours of October 25, 1986, when a shirt was thrown over her face and an object which she perceived to be a gun was pointed at her head by a man. She initially struggled with her assailant but was told by him "not to scream or * * * [he would] blow * * * [her] brains out." The assailant took Karen to her bedroom and raped her.
Karen testified that she never saw her assailant's face throughout her ordeal. However, she indicated that he smelled of gasoline and did not appear to be very tall "because his level was ear level to * * * [her]."
After raping her, Karen's assailant took the contents of her purse, including her passbook, automatic teller card and MasterCard. He then pushed her into the bathroom, ordered her to sit on the commode, and shut the bathroom door. He ordered her not to open the door or he would shoot her. After waiting for awhile, Karen opened the bathroom door to care for her son who was making distressing noises in his bedroom. She then noticed that the back door to the house was open and that her assailant had left. Karen called Deputy Sheriff Monty Rayburn who arrived at the Jones residence around 2:37 a.m.
Karen was hysterical when Rayburn arrived. She told Rayburn that she recognized her assailant's voice as that of David Parker, who lived nearby. She testified that she recognized Parker's voice from previous contacts she had had with him. She indicated that she first talked to Parker several months earlier when she drove up her driveway and observed Parker talking to some children playing in her back yard. Parker inquired whether any of the children were hers. Karen's second encounter with appellant was two days before she was raped. Karen indicated that Parker approached her when she was unloading some materials from her car in front of her house and initiated a conversation which lasted about five minutes.
Karen also told Rayburn that Parker must have entered the house through the back door. She showed Rayburn the shirt with which her assailant covered her face. She then gathered the bed covers from her bed and gave them to Rayburn. At this point, she noticed that her husband's .357 caliber revolver was missing from the headboard of the bed where it was normally kept.
Shortly after Rayburn's arrival, Parker was seen driving away from his residence which is within view of the Jones residence.
With the assistance of Deputy Sheriff Charles Taylor, Rayburn conducted an investigation of the crime scene. The officers took a walk around the Jones home and, in the process, noticed a footpath in the midst of tall, wet grasses leading from the Jones residence to the Parker residence. The path was rather obvious because it had rained during the night, making the trampling of the grass easy to observe.
Around 4:00 a.m. when Parker returned, Rayburn went to Parker's residence, read him his Miranda rights and advised him of accusations made against him by Karen Jones. Parker denied the accusations. He told Rayburn that he had watched a late movie, cleaned some car parts with kerosene and carburetor cleaner, and had gone to a convenience store during the early hours of the morning. At Rayburn's request, Parker rode with Deputy Sheriff Ron Ward to the sheriff's department to give a taped statement of his denial. The taped interview was conducted by Deputy Sheriff Taylor and consisted of a series of questions by the officer about the crime and exculpatory answers by Parker reiterating his earlier denial.
Rayburn took the tape of the interview soon after it was made to Highland District Hospital, where Karen was being treated. He played a portion of the tape to Karen and asked her if she could identify any of the voices on the tape. Karen identified Parker as her assailant. The officers then arrested Parker.
A search warrant was then obtained pursuant to the voice identification. A search of Parker's car produced a .357 caliber revolver, later identified as the missing gun belonging to Tony Jones. A search of Parker's house produced Karen's missing passbook and other contents of her purse.
After his arrest, Parker gave a taped interview to Gary Cooper, his probation officer, similar in content to his interview with Deputy Sheriff Taylor.
Parker was subsequently indicted by a Highland County Grand Jury on four counts of aggravated burglary, aggravated robbery with deadly weapon, rape with firearm specification and receiving stolen property. He entered a not guilty plea on all four counts of the indictment.
On November 7, 1986, defendant Parker requested, pursuant to Crim. R. 16, inter alia:
"(1) Any written or recorded statements and any written summaries of any oral statement by the Defendant.
"* * *
"(3) Any documents or tangible objects which the State intends to use at trial."
In response to defendant's discovery request, the prosecutor provided him with the following information:
"(a) Written statement of defendant: none.
"* * *
"(d) Tapes of oral statements of defendant or codefendants available: a) to Monty L. Rayburn, Highland County Sheriff's Dept., 10/2/86, available for listening by contacting Monty L. Rayburn; b) to Gary Cooper, Highland Co. Court of Common Pleas, available for listening by contacting Gary Cooper." (Emphasis added.)
The prosecution thus disclosed, and gave defendant permission to obtain, the information sought by the defendant.
On December 2, 1986, the grand jury returned a new indictment against defendant repeating the four charges contained in the earlier indictment, and adding a specification to each of the first three counts that defendant had previously been convicted of felonious assault. Defendant again entered a not guilty plea to all the charges. The fourth count of the indictment, receiving stolen property, was severed for trial from the first three counts and later dismissed on the state's motion.
Defendant was tried to a jury on the first three counts of the indictment. The following discourse took place between the prosecutor and Karen Jones during the prosecutor's direct examination of Karen:
"Q. At any point that evening did the Sheriff's or any member of Sheriff's Department play a tape for you?
"A. Yes.
"* * *
"Q. And do you remember what the purpose of that was?
"A. * * * to identify, to see if I could identify who raped me.
"Q. And how was that done? What did they do?
"A. They just asked me if I could identify any voices on this tape and I did.
"Q. And you say you identified it. How did you identify it, as whose voice?
"A. As David Parker.
"* * * [Prosecutor]: Your Honor, I have a tape here that will be later identified and authenticated by the Deputy who recorded the tape. I would like to play it for her at some point, if there is an objection at this point to proper authentication, then I'd like to reserve the right to question her about this after the proper foundation is established.
"THE COURT: Do you object?
"* * *
"* * * [Defense counsel]: I object because there has been a continuing request of any mode or form of identification that was ever used to identify David Parker, and now I find out apparently there was.
"THE COURT: The mode of identification you weren't advised that this was done?
"* * * [Prosecutor]: I can't say that it was. The tapes were available, and whether or not he knew about it, I don't know. I don't think it's a matter that has to be disclosed, frankly."
The trial court denied defense counsel's objection and his subsequent motion for mistrial. The jury found defendant guilty as charged in the indictments. The trial court sentenced defendant to three consecutive sentences of fifteen to twenty-five years with fifteen years of actual incarceration. The court also imposed an additional three years' incarceration on one of the gun-specification convictions.
The court of appeals reversed the convictions on the two gun specifications and the additional sentence for possession of a handgun, concluding that there was no testimony that the gun was operable as required by R.C. 2923.11(B). The remainder of the convictions and sentencing was affirmed.
The state appealed on the gun specification issue and defendant cross-appealed on other issues. The state subsequently dismissed its appeal.
The cause is now before this court pursuant to the allowance of a cross-motion for leave to appeal.
Rocky A. Coss, prosecuting attorney, for cross-appellee.
John F. Jackson, for cross-appellant.
Defendant first contends that the prosecutor failed to disclose or provide a tape-recording of his interview requested pursuant to Crim. R. 16, which tape was used to identify him and later offered in evidence on the issue of guilt.
Defendant's contention raises the question of whether the prosecutor's mistaken labeling of the tape of defendant's interview with Deputy Sheriff Taylor on October 25, 1986 as having been made with Deputy Sheriff Rayburn on October 2, 1986 resulted in prejudice to the defendant.
Crim. R. 16 provides in pertinent part:
"(B) Disclosure of evidence by the prosecuting attorney.
"(1) Information subject to disclosure.
"(a) Statement of defendant or codefendant.
"Upon motion of the defendant, the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any of the following which are available to, or within the possession, custody or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney:
"(i) Relevant written or recorded statements made by the defendant or codefendant or copies thereof[.]"
The prosecution was obligated under Crim. R. 16(B)(1)(a)(i) to disclose to the defendant that the tapes of his interviews were available for discovery. As the facts indicate, the prosecution disclosed the availability of the tapes to the defendant. However, the "Taylor tape" made on October 25, 1986 was mistakenly identified as made by Deputy Sheriff Rayburn on October 2, 1986. The question, then, is whether the mislabeling of the tape resulted in nondisclosure requiring the trial court to impose sanctions on the prosecution.
The philosophy of the Criminal Rules is to remove from a trial the element of gamesmanship. State v. Howard (1978), 56 Ohio St.2d 328, 333, 10 O.O. 3d 448, 451, 383 N.E.2d 912, 915. The purpose of the discovery rules is to prevent surprise and the secreting of evidence favorable to one party. Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, 3, 511 N.E.2d 1138, 1140. A sanction should not be imposed under Crim. R. 16 unless the prosecutor's noncompliance is of sufficient significance to result in a denial of defendant's right to a fair trial. Hughes v. Hopper (C.A.5, 1980), 629 F.2d 1036, 1039.
A trial court must inquire into the circumstances producing the alleged violation of Crim. R. 16. The court is required to impose the least severe sanction that is consistent with the purpose of the rules of discovery. Lakewood, supra, at 5, 511 N.E.2d at 1141. "Where, in a criminal trial, the prosecution fails to comply with Crim. R. 16(B) * * * and the record does not demonstrate (1) that the prosecutor's failure to disclose was a willful violation of Crim. R. 16(B), (2) that foreknowledge of the statement would have benefited the accused in the preparation of his defense, or (3) that the accused was prejudiced by admission of the statement, the trial court does not abuse its discretion under Crim. R. 16(E)(3) by permitting such evidence to be admitted." State v. Parson (1983), 6 Ohio St.3d 442, 6 OBR 485, 453 N.E.2d 689, syllabus.
It is important to emphasize that we are concerned here not with suppressed information but with mislabeled information. It cannot be said that the prosecutor's mislabeling of the tape was willful. A review of the record shows that the prosecution complied in good faith with defendant's discovery request. The mistake in the labeling of the tape was rather obvious, given that the crime occurred on October 25, 1986 and the tape was labeled October 2, 1986. The tape could not have been made before the crime. More important, the mislabeling of the tape in this instance is of no import as it did not go to the content of the tape. Defendant was privy to the content of the tape and was also made aware of the "Cooper tape" which contains basically the same information as the "Taylor tape." As such, he cannot and does not claim that he lacked foreknowledge of the information contained in the tape. See State v. Edwards (1976), 49 Ohio St.2d 31, 42, 3 O.O. 3d 18, 24, 358 N.E.2d 1051, 1059-1060. As a matter of fact, defendant's objection at trial was not to the content of the tape but to the prosecutor's nondisclosure that the tape was used to identify the defendant.
For the foregoing reasons, we conclude that defendant was not prejudiced by the mislabeling of the tape.
We next consider whether pursuant to Crim. R. 16 the prosecutor was required to disclose to the defendant that he intended to introduce the "Taylor tape" as evidence of Karen Jones's identification of defendant.
The record indicates that the prosecution disclosed, and gave defendant permission to obtain, the information sought by the defendant. Crim. R. 16(B) does not require the prosecution to disclose to the defendant the significance to the prosecution of information sought to be discovered by the defendant. The rule only requires the prosecution to disclose, and to permit the defendant to obtain, the information sought. See Lakewood, supra, at 3-4, 511 N.E.2d at 1140; Brown v. Harris (C.A.2, 1981), 666 F.2d 782, 785. There is no constitutional mandate that the prosecution disclose to the defense how it intended to use police investigatory work sought to be discovered by the defense. See Moore v. Illinois (1972), 408 U.S. 786.
We therefore conclude that defendant's contention is without merit.
Defendant also contends that an accused's rights to a fair trial and due process are violated when, under the totality of the circumstances, there is an impermissibly suggestive identification procedure which allows for a substantial likelihood of irreparable misidentification. Defendant essentially contends that he was denied his due process right to a fair trial because the manner in which his voice was taped and presented to Karen Jones created an impermissibly suggestive situation which tainted her identification of him.
Defendant failed to object to his identification by Karen. We therefore must determine whether plain error was committed.
It is the likelihood of misidentification which violates a defendant's right to due process. Suggestive confrontations are disapproved because they increase the likelihood of misidentification. Neil v. Biggers (1972), 409 U.S. 188. The purpose of a strict rule barring evidence of unnecessarily suggestive confrontation is to deter law enforcement officers from using a less reliable identification procedure where a more reliable one may be available. The rule is not based on the assumption that in every instance the admission of evidence of such a confrontation offends due process. Id. at 199. Reliability is the linchpin in determining the admissibility of such evidence. Manson v. Brathwaite (1976), 432 U.S. 98, 114. An unnecessarily suggestive identification process does not violate due process if such identification possesses sufficient indicia of reliability. Id. at 106. The central question is whether under the totality of the circumstances the identification is reliable even though the confrontation procedure was suggestive. Neil, supra, at 199.
Where a witness has already identified a suspect in circumstances which are not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, a subsequent identification procedure which may be impermissibly suggestive does not taint the original identification. State v. Kaiser (1978), 56 Ohio St.2d 29, 10 O.O. 3d 75, 381 N.E.2d 633, at paragraph one of the syllabus. In essence, a reliable identification does not become unreliable because of a subsequent identification which is impermissibly suggestive. The focus is on the reliability of the identification. State v. Sheardon (1972), 31 Ohio St.2d 20, 60 O.O. 2d 11, 285 N.E.2d 335; State v. Lott (1990), 51 Ohio St.3d 160, 175, 555 N.E.2d 293, 308.
The facts indicate that Karen, on her own initiative, first identified defendant as her assailant when Rayburn arrived at her home shortly after the crime. Her voice identification of defendant was based on her previous contacts with him, the last of which was two days before the crime. The facts also show that Karen had ample opportunity to listen to defendant's voice during the commission of the crimes and thus was in a position to identify him. Under the circumstances, Karen's original identification of defendant was made in circumstances which are not impermissibly suggestive and has sufficient indicia of reliability. This identification was not tainted by the subsequent voice identification from a taped conversation with defendant which may have been made under impermissibly suggestive circumstances. Thus, the trial court did not commit plain error in admitting the evidence.
Our conclusion that Karen's original identification of defendant was reliable is further supported by evidence that Tony Jones's missing gun was recovered in defendant's car; that the contents of Karen's purse stolen by her assailant were recovered hidden under defendant's pants in his home; that Karen's assailant smelled of a gasoline product and that defendant worked with a gasoline product shortly before the crime; that a footpath in the wet grass leading from the Jones home to defendant's home was discovered by law enforcement officers soon after they arrived at the scene of the crime. See Manson, supra, at 116.
Based on the foregoing, we conclude that Karen's original identification of defendant, being reliable, was not tainted by a subsequent identification procedure which may have been impermissibly suggestive.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.