State v. Reid

[Cite as State v. Reid, 2012-Ohio-1659.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24672
vs. : T.C. CASE NO. 01CR1371
TYRONE REID : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 13th day of April, 2012.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Carley J. Ingram, Asst. Pros.
Attorney, Atty. Reg. No. 0020084, P.O. Box 972, Dayton, Oh 45422
Attorney for Plaintiff-Appellee
Tyrone Reid, #438-902, P.O. Box 57, Marion, OH 43302
Defendant-Appellant, Pro Se
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant Tyrone Reid appeals from a final order that
denied his motion filed pursuant to R.C. 149.43(B)(8) requesting
the trial court to find that he is seeking information subject
to release as a public record and that the information sought is
necessary to support what appears to be a justiciable claim.
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{¶ 2} In December 2002, a jury found Defendant guilty of the
murder of Cedron Brown. In January 2003, the trial court sentenced
Defendant to eighteen years to life imprisonment. We affirmed
Defendant’s conviction and sentence on direct appeal. State v.
Reid, 2d Dist. Montgomery No. 19729, 2003-Ohio-6079. Since then,
Defendant has filed numerous unsuccessful motions, post-conviction
actions and appeals, all in an effort to undo his conviction.
{¶ 3} Defendant, an inmate at Marion Correctional Institute,
seeks information concerning the investigation and prosecution
of his criminal case that he believes may be contained in the records
and files of police agencies, the prosecutor’s office, or the court.
On February 16, 2011, Defendant filed a motion asking the trial
court to find, pursuant to R.C. 149.43(B)(8), that certain records,
including all 911 calls made to Dayton police concerning his offense
and records concerning a particular vehicle contained in Dayton
police impound logs, are public records and are necessary to support
what appears to be a justiciable claim by Defendant. The State
filed a memorandum contra Defendant’s motion. The trial court
denied Defendant’s motion on May 4, 2011, finding that Defendant
does not have a justiciable claim because any claim he might present
would be barred by res judicata, and in any event Defendant has
not demonstrated how the records sought, even if they exist, would
aid his defense and are therefore necessary to support a justiciable
claim.
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{¶ 4} Defendant appealed to this court from the trial court’s
decision denying his motion.
FIRST ASSIGNMENT OF ERROR
{¶ 5} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
THE APPELLANT’S REQUEST FOR JUSTICIABLE FINDING AFTER THE
PLAINTIFF ADMITTED THAT ITS OFFICE WAS IN POSSESSION OF 911 TAPE
RECORDINGS CONCERNING THIS CASE THAT IT NEVER TURNED OVER TO THE
APPELLANT.”
THIRD ASSIGNMENT OF ERROR
{¶ 6} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
THE APPELLANT’S REQUEST FOR JUSTICIABLE FINDING CONCERNING THE
VEHICLE DRIVEN BY WILLIAM THOMAS (VICTIM) AND THE APPELLANT WHICH
THE PLAINTIFF FOR TEN YEARS, INCLUDING AT TRIAL CLAIMED NEVER
EXISTED, ALTHOUGH THE POLICE REPORT SHOWS THE VEHICLE DID EXIST
AND THAT IT WAS IMPOUNDED BY THE DAYTON POLICE DEPARTMENT.”
{¶ 7} Defendant argues that the trial court abused its
discretion in not finding that the records he seeks are necessary
to support a justiciable claim. Defendant additionally argues
that the State has admitted suppressing the recording of a 911
call made by Nettie Spidell.
{¶ 8} A public office or person responsible for public records
is not required to permit a person who is incarcerated pursuant
to a criminal conviction to inspect or copy any public record
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concerning a criminal investigation or prosecution unless the
request to inspect or copy the record is for the purpose of acquiring
information that is subject to release as a public record and the
judge who imposed the sentence finds that the information sought
in the public record is necessary to support what appears to be
a justiciable claim. R.C. 149.43(B)(8); State ex rel. Russell
v. Bican, 112 Ohio St. 3d 559, 2007-Ohio-813, 862 N.E.2d 102.
{¶ 9} In denying Defendant’s motion for a finding that the
public records Defendant seeks are necessary to support what
appears to be a justiciable claim by Defendant, the trial court
concluded that Defendant does not have a justiciable claim. We
agree. Since his conviction, Defendant has filed numerous
motions, post-conviction actions and appeals. Defendant has
exhausted his available remedies and his conviction has become
final. As a result, any claim for relief Defendant might present
is barred by res judicata. State v. Perry, 10 Ohio St. 2d 175,
226 N.E.2d 104 (1967). Claims barred by res judicata are not
justiciable.
{¶ 10} While res judicata would not bar a post-appeal motion
for a new trial based upon newly discovered evidence, State v.
Davis, 131 Ohio St. 3d 1, 2011-Ohio-5028, 959 N.E.2d 516, the
information Defendant seeks regarding recorded 911 calls to police
and the vehicle police impounded is not newly discovered, because
it was either provided to defense counsel at trial or referenced
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in police reports provided to defense counsel at trial. See: Trial
Court’s Decision of August 6, 2007, overruling Defendant’s motion
for expert assistance; Trial Court’s Decision of May 4, 2011,
overruling Defendant’s motion for a finding of a justiciable claim
to support disclosure of public records.
{¶ 11} With respect to the 911 calls police received after the
shooting that led to the deaths of Cedron Brown and William Thomas,
Defendant claims that the police report he attached to his motion
demonstrates that the State destroyed or suppressed a recorded
911 call made by Nettie Spidell. The trial court found that no
such thing is demonstrated because the record demonstrates that,
prior to trial, Defendant was provided with all tape recorded 911
calls Dayton police had. See: Trial Court’s August 6, 2007
Decision overruling Defendant’s motion for expert assistance.
Furthermore, the failure to preserve all of the 911 calls is hardly
sinister, because typically tapes of 911 calls are recycled
pursuant to Dayton Police Department policy after sixty days.
Id. More importantly, there is no evidence that whatever Ms.
Spidell may have said when she called 911 would have exonerated
Defendant or aided his defense. Therefore, Defendant has not shown
that the recordings of the 911 calls he seeks, if they exist, are
necessary to support a justiciable claim. Defendant has failed
to satisfy his statutory duty under R.C. 149.43(B)(8). Bican.
{¶ 12} With respect to Defendant’s request that the trial court
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find that the records concerning a particular motor vehicle, which
Defendant believes are located in Dayton police impound logs, are
necessary to support a justiciable claim, Defendant has likewise
failed to show how these records, if they exist, would aid his
defense and support a justiciable claim.
{¶ 13} Because Defendant has not demonstrated that he has a
justiciable claim or that the public records he seeks are necessary
to support that claim, the trial court did not abuse its discretion
when it overruled Defendant’s motion seeking a justiciable claim
finding pursuant to R.C. 149.43(B)(8).
{¶ 14} Defendant’s first and third assignments of error are
overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 15} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
THE APPELLANT’S REQUEST FOR JUSTICIABLE FINDING AFTER IT ENGAGED
IN EX PARTE COMMUNICATIONS AND ALLOWED THE PLAINTIFF TO DRAFT THE
TRIAL COURT’S OPINION.”
{¶ 16} Defendant argues that the assistant prosecutor who wrote
the State’s memorandum contra Defendant’s motion requesting a
finding of a justiciable claim, also authored the trial court’s
May 4, 2011 decision denying Defendant’s motion. No such thing
has been demonstrated on this record. The mere fact that the trial
court found the State’s memorandum persuasive and incorporated
parts of it into the court’s decision does not demonstrate that
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the court engaged in ex parte communications with the prosecutor
about the court’s decision or allowed the prosecutor to write the
decision for the court. State v. Roberts, 110 Ohio St. 3d 71,
2006-Ohio-3665, 850 N.E.2d 1168, is not applicable here. A court
is not prohibited from adopting arguments and language contained
in a memorandum filed by one of the parties.
{¶ 17} Defendant’s second assignment of error is overruled.
The judgment of the trial court will be affirmed.
FAIN, J., And FROELICH, J., concur.
Copies mailed to:
Carley J. Ingram, Esq.
Tyrone Reid
Hon. Timothy N. O’Connell