State v. South , 2005 Ohio 2152 ( 2005 )

{¶ 19} I respectfully dissent. Although not mentioned in the majority opinion, the first issue we as an appellate court must examine is whether the trial court abused its discretion in denying appellant's motion to compel. The granting or denial of motions to compel discovery are reviewed under an abuse-of-discretion standard. State ex rel. The V Cos. v.Marshall (1998), 81 Ohio St. 3d 467, 469, 692 N.E.2d 198. As I believe the trial court did not abuse its discretion in refusing to order the state to provide a copy of the dashcam video, I would affirm.

{¶ 20} Although appellant was provided with complete open-file discovery pursuant to Loc.R. 21.06, appellant was not given copies of items he requested. However, he was able to view, review, inspect, and take notes pursuant to the open-file discovery custom followed in Summit County. Appellant filed a motion to compel to obtain copies of the items he requested. The trial court denied this motion to compel based on the fact that appellant had been able to view everything in the state's file including the videotape and based on case law from this court approving of the open-file discovery procedure. Nonetheless, despite a local rule providing for open-file discovery and case law from this court approving it, the majority concludes that the trial court erred in denying the motion to compel.

{¶ 21} Regulation of discovery is a matter within the sound discretion of the trial court. State v. Lough, 9th Dist. No. 21547, 2004-Ohio-596, 2004 WL 239917, at ¶ 11. This regulation will not be disturbed by a reviewing court absent an abuse of discretion. Id. The term "abuse of discretion" implies more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St. 2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144. When applying the abuse-of-discretion standard, an appellate court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St. 3d 619,621, 614 N.E.2d 748. I cannot find that the trial court abused its discretion here.

{¶ 22} Finally, even if the trial court erred in not granting the motion to compel, appellant still has not demonstrated prejudice. The dashcam videotape was played for the jury. Both sides agreed that no identification of the driver or license plate could be made. In other words, it did not inculpate appellant in any manner.

{¶ 23} After personally viewing the videotape, I, too, do not find that it inculpated appellant. The video shows a high-speed pursuit. The license plate and driver of the car being pursued cannot be ascertained, because of either distance or the glare of the patrol car's lights. Moreover, the videotape shows the driver only from the back. It was basically irrelevant to the proceedings. This case was all about credibility. Either the jury was going to believe the police officer's identification of appellant or not. Obviously, the jury believed the officer's testimony. Moreover, it is appellant's burden to demonstrate prejudice. Here appellant argues that if he had received a copy of the dashcam video, he might have been able to get it enhanced; and, if he had been able to get it enhanced, it might have demonstrated who the driver was, and he might have been able to demonstrate that he was not driving the vehicle. Mere speculation is insufficient to prove prejudice.

{¶ 24} The majority reasons that "the refusal to provide South with a copy of the videotape prevented him from enhancing the tape and thereby demonstrating its materiality to his defense." I can find no case law to support this presumption of prejudice for a failure to provide copies to the defense. In fact, prejudice is not presumed even in cases where the state has failed to disclose evidence.

{¶ 25} In State v. Iacona (Mar. 15, 2000), 9th Dist. No. 2891-M, 2000 WL 277911, this court held:

Potentially exculpatory evidence subject to disclosure under Crim.R. 16 is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." State v. Johnston (1988), 39 Ohio St. 3d 48 [529 N.E.2d 898], paragraph five of the syllabus. See, also, State v. Keene, [(1998)] 81 Ohio St.3d [646] at 650 [693 N.E.2d 246] (concluding that the definition of materiality provided by Brady is also applicable to Crim.R. 16[B][1][f]). A reasonable probability consists of "a probability sufficient to undermine confidence in the outcome." State v. Johnston, 39 Ohio St. 3d 48 [529 N.E.2d 898], at paragraph five of the syllabus.

{¶ 26} Appellant has not demonstrated prejudice. Appellant says he might be able to hire an expert who might be able to enhance the videotape. The videotape was disclosed to appellant. He was able to view it before trial. It was incumbent upon appellant to present some evidence to the trial court that the videotape could be enhanced. Appellant could have secured an affidavit from an expert attesting to the fact that the video could be enhanced so as to be able to view the driver and/or the license plate. All we have is speculation. In addressing a similar argument under an ineffective-assistance-of-counsel claim, the Fourth District Court of Appeals held:

Because no "enhanced" version of the videotape currently exists, it is difficult for us to perceive or to speculate how the tape would have aided Davis's defense. We note that courts have repeatedly held that under the Strickland test, prejudice will not be implied. * * * Without some affirmative demonstration that an enhanced version of the videotape shows a vehicle passing the bus, and without a definitive showing that the vehicle was positioned in Davis's lane of travel prior to her veering off the roadway, it is speculative to assert that an enhanced video would have had any effect on the outcome of the proceeding.

State v. Davis, 4th Dist. No. 04CA1, 2004-Ohio-5680, at ¶ 33. That is all we have here, speculation. We are speculating that the video might be able to be enhanced. We are speculating that if it is able to be enhanced it might be possible to get a better look at the driver. Finally, we speculate that if a better view of the driver is enhanced it might demonstrate that appellant was not the driver.

{¶ 27} Meanwhile, a jury weighed all the evidence that does exist, evidence that was disclosed and reviewed by appellant's counsel before trial, and determined that appellant was the driver who fled from the officer. There is no reason to overturn the jury's verdict based on mere speculation.