Summary
In State v. Schnipper (1986), 22 Ohio St.3d 258, [ 22 Ohio St.3d 158] the Supreme Court of Ohio stated that a motion for an in camera inspection of a witness' prior written statement can be made at any time after completion of a the witness' direct examination, but prior to the completion of the witness' cross-examination.
Summary of this case from State v. LyonsOpinion
No. 85-23
Decided February 19, 1986.
Criminal law — Failure to conduct in camera inspection of police report — Crim. R. 16(B)(1)(g) — Failure of defendant to move court to inspect police report.
APPEAL from the Court of Appeals for Montgomery County.
On October 6, 1982, defendant-appellant herein, Arthur L. Schnipper, shot and killed Margaret F. Thomas. As a result of this incident, appellant was indicted, tried, and convicted on one count of aggravated murder in violation of R.C. 2903.01(A). He was sentenced to life imprisonment.
Appellant had lived with Thomas from 1977 until the summer of 1982. At that time, appellant's relationship with Thomas deteriorated, and both appellant and Thomas moved out of the apartment that they had shared. In early September 1982, appellant returned to the apartment and found that a number of antiques had been removed. Believing that Thomas was in possession of the missing antiques, appellant decided to follow her — apparently with the thought of recovering the antiques.
On October 6, 1982, Thomas was drinking at Jimmie's Lounge in Dayton. Shortly after 10:00 p.m., she made a call on a pay telephone that was located in a hallway leading to the rear entrance of the lounge. While Thomas was on the phone, appellant, disguised in an Air Force uniform, makeup, and a false mustache, entered the back door. Appellant testified that he attempted to walk past Thomas, but she recognized him. Appellant stated that he believed he saw Thomas reach for her purse, which was located next to the telephone. Allegedly fearing that Thomas had a gun in her purse, appellant pulled his gun from his waistband and shot Thomas eight times. When his gun was empty, appellant turned and walked out the back door of the lounge.
There was conflicting testimony at trial as to the number of people who then followed appellant out of Jimmie's Lounge. Dale Crumrine testified that no one followed appellant out of the lounge; however, Dino Leakakos, the owner of Jimmie's Lounge, testified that he was the third person who went out the back door after appellant, and that the two people in front of him were screaming at appellant. Appellant testified that he did not know how many people followed him out of Jimmie's Lounge, but that someone was yelling, "[S]top him, kill him."
Dayton Police Lieutenants James Hensley and Jerry Morgan had just pulled into the parking lot behind Jimmie's Lounge when they observed appellant exiting the lounge with a gun in his hand. Officer Hensley stopped appellant as he was reaching for the door handle of his parked car. Hensley testified that "one black male" had followed appellant out of the rear entrance of the lounge and had pointed at appellant and yelled, "[S]top him, get him." Officer Morgan testified that he had observed "an individual" chasing the appellant and yelling, "[S]top."
At the close of the lieutenants' testimony, appellant's counsel proffered that, if he had been permitted to do so, he would have cross-examined the lieutenants concerning their statements in the police report that several people (rather than one individual) had followed appellant into the parking lot behind Jimmie's Lounge. On appeal, appellant made several assignments of error, one of which was that the trial court had erred in failing to conduct an in camera inspection of the police report, as required by Crim. R. 16(B)(1)(g). Appellant contended that this inspection would have revealed the conflict between the police report and the testimony of Hensley and Morgan, and thus would have allowed appellant to attack the officers' credibility on cross-examination.
The court of appeals rejected all the appellant's assigned errors and held, with reference to the trial court's failure to inspect or permit the use of the police report, that appellant's failure to move for an in camera inspection of the report formed a proper basis for sustaining the state's objection to its use in the cross-examination of Officer Hensley.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Lee C. Falke, prosecuting attorney, and Walter F. Ruf, for appellee.
Denny, Malloy Cox and Steven M. Cox, for appellant.
Appellant's motion for leave to appeal was granted on the limited issue of whether the trial court's failure to conduct an in camera inspection of the police report, prior to prohibiting its use in the cross-examination of Officer Hensley, was in contravention of Crim. R. 16(B). Crim. R. 16(B)(1) provides, in relevant part:
" (g) In camera inspection of witness' statement. Upon completion of a witness' direct examination at trial, the court on motion of the defendant shall conduct an in camera inspection of the witness' written or recorded statement with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement.
"If the court determines that inconsistencies exist, the statement shall be given to the defense attorney for use in cross-examination of the witness as to the inconsistencies.
"If the court determines that inconsistencies do not exist the statement shall not be given to the defense attorney and he shall not be permitted to cross-examine or comment thereon. * * *"
It is clear that under Crim. R. 16(B)(1)(g) a defendant must move for an in camera inspection of a witness' prior written statement if he intends to cross-examine the witness on apparent inconsistencies between the prior statement and the witness' testimony on direct examination. This motion can be made at any time after completion of the witness' direct examination, but prior to the completion of the witness' cross-examination. In the instant case, the defendant did not move for an in camera inspection, but defense counsel nevertheless attempted to cross-examine Officer Hensley on his statement in the police report. The state's objection to this line of questioning was sustained after an off-the-record discussion between counsel and the trial judge. Following Officer Morgan's testimony on direct examination, defense counsel stated that he had no questions, "[b]ased upon a prior ruling of the court," and that he would like to make a proffer. In chambers, defense counsel proffered that he would have used the police report to show that the police officers' testimony (that only one person had followed the appellant out of Jimmie's Lounge) was inconsistent with their report, which stated that several persons had followed appellant out of Jimmie's.
In State v. Jenkins (1984), 15 Ohio St.3d 164, at 223-226, we discussed the relationship between Crim. R. 16(B)(2)(g) and 16(B)(2) (which generally prohibits the discovery or inspection of prosecutorial reports), and we noted that "those portions of a testifying police officer's signed report concerning his observations and recollection of the events are `statements' within the meaning of Crim. R. 16(B)(1)(g)" and therefore excepted from the general prohibition of Crim. R. 16(B)(2). Id. at 225. We also emphasized, however, that a "defendant cannot be heard to complain on appeal about a matter which the trial judge could have remedied if the defense had complained then." Id. at 226. When, as in the instant case, a defendant fails to move the court to inspect a police report, he cannot later complain that he was wrongfully denied the opportunity to cross-examine a testifying officer on apparent inconsistencies between the officer's testimony and the statements contained in his report.
Based on the foregoing, it is clear that no error was committed when the trial court sustained the state's objection to the appellant's attempted cross-examination of Officer Hensley on the statements contained in his police report. While a trial court sua sponte may inspect statements in a police report, it has no obligation to conduct such an inspection absent a motion by the defense. Accordingly, the judgment of the court of appeals is affirmed.
We note that even if appellant had properly moved the court for an in camera inspection of the police report in question and such motion had been denied, the resulting error would have been harmless. Any dispute as to the number of persons who followed appellant out of Jimmie's Lounge was largely irrelevant to the central issues of appellant's trial. Appellant, himself, stated that he did not know how many people followed him out of the lounge, and the alleged inconsistency between the testimony of Lieutenants Hensley and Morgan and the statements contained in their police report was not so substantial as to cast doubt upon the officers' credibility.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN and WRIGHT, JJ., concur.
DOUGLAS, J., concurs in judgment only.