State v. McClellan

[Cite as State v. McClellan, 2010-Ohio-314.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-09-21
v.
JAMES L. MCCLELLAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CV 2007 0033
Judgment Affirmed
Date of Decision: February 1, 2010
APPEARANCES:
Michael J. Short for Appellant
Jana E. Emerick for Appellee
Case No. 1-09-21
ROGERS, J.
{¶1} Defendant-Appellant, James McClellan, appeals from the judgment
of the Court of Common Pleas of Allen County convicting him of having a
weapon while under a disability and sentencing him to a three-year prison term.
On appeal, McClellan argues that the trial court erred in failing to suppress the
evidence seized as a result of the stop and search of his vehicle; that the trial court
erred in finding there to be probable cause for the police officer to effectuate a
traffic stop; that the trial court erred in permitting the arresting officer to testify at
trial and at the suppression hearing in violation of Evid.R. 601(C); that he was
denied the effective assistance of counsel; that the trial court erred in overruling
his Batson challenge to the State’s removal of a juror; and, that the trial court erred
in admitting the videotape of his traffic stop into evidence at trial where it was not
properly authenticated pursuant to Evid.R. 901. Based on the following, we affirm
the judgment of the trial court.
{¶2} In March 2007, the Allen County Grand Jury indicted McClellan on
one count of having a weapon while under a disability in violation of R.C.
2923.13, a felony of the third degree. The indictment arose from an incident
whereby McClellan was stopped by a Lima police officer for failing to signal a
turn, a search of the vehicle was conducted after a canine alerted to the presence of
drugs in the vehicle, and a firearm was discovered pursuant to the vehicle search,
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with McClellan having been previously convicted of a felony drug offense.
Subsequently, McClellan entered a not guilty plea.
{¶3} In May 2007, McClellan filed a motion to suppress the weapon
found in his vehicle and the statements he made to police officers subsequent to
his traffic stop, arguing that the officer did not have probable cause or a reasonable
articulable suspicion to effectuate the traffic stop; that the officers did not have a
search warrant to search the locked briefcase inside the vehicle, in which the
weapon was found; and, that the officers did not apprise McClellan of his Miranda
rights prior to conducting an interrogation outside his vehicle. However, in the
motion, McClellan admitted to failing to signal his turn, the basis for the traffic
stop.
{¶4} In June 2007, a hearing was held on McClellan’s motion to suppress,
at which the following testimony was heard. Patrolman Billy Thompson from the
Lima Police Department testified that he was on patrol on January 3, 2007, when
he received a radio call from Officer Charles Godfrey requesting that he stop a
vehicle for a “violation” (motion to suppress tr., p. 3); that Godfrey did not tell
him the nature of the violation; that Godfrey needed him to stop the vehicle
because he was in uniform and driving a marked police cruiser, whereas Godfrey
was in an unmarked car and not in uniform; that he did not observe the violation;
that, when he approached the vehicle, Godfrey verified that it was the vehicle at
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issue, and he conducted a stop; that, after stopping the vehicle, he asked McClellan
for his driver’s license, but McClellan stated he did not have it with him; that
McClellan was uncooperative in providing information and continuously asked
him why he was stopped; that he explained to McClellan that an undercover
officer witnessed a violation; that McClellan eventually gave his social security
number; that Officer Godfrey then arrived; that they asked McClellan to step out
of the vehicle because of his uncooperative actions, he patted him down for
weapons, and then placed him in the back of the police cruiser; and, that
subsequently, a search was conducted of the vehicle, but he was not involved in
the search.
{¶5} Officer Godfrey testified on direct examination that, on January 3,
2007, he was in an unmarked vehicle, wearing plain clothes, and investigating
drug activity; that, as he was in route to observe a suspected drug house, he saw
Terry Cannon walking across the street from a known drug house; that, due to
Cannon’s history, he called to see if he had any outstanding arrest warrants; that,
as he was watching Cannon while waiting for the warrant assessment, Cannon got
into McClellan’s vehicle; that he followed the vehicle as it drove about five or six
blocks, and Cannon then exited the vehicle; that he became suspicious of the
incident because it was similar to drug deals he had observed multiple times over
the last five years; that he followed the vehicle as it drove away, and while he was
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following, he observed the vehicle make a right turn without using a turn signal;
that he called for a marked police cruiser to conduct a traffic stop of the vehicle,
and Patrolman Thompson responded to the call and conducted the stop; that he
approached the driver’s side of the vehicle shortly after Patrolman Thompson
effectuated the traffic stop and told McClellan that he was stopped because he
observed him commit a traffic violation; that McClellan was unable to produce
identification and continued to ask what traffic violation he committed; that he
then asked McClellan to step out of the vehicle, to which McClellan responded by
asking whether he was under arrest; that McClellan eventually exited the vehicle
and provided his social security number; that McClellan continued to ask why he
was stopped and whether he was under arrest, and he also kept putting his hands in
his pockets, even after he was asked multiple times to remove them; that he told
McClellan he was being detained while he wrote a ticket, and that he was going to
call for a canine to conduct a drug sniff of his vehicle; that McClellan continued to
ask if he was under arrest and he continued to tell him he was being detained; that
McClellan then tried to walk away, so he placed McClellan in handcuffs and put
him in the back of Patrolman Thompson’s police cruiser; and, that he took this
action for officer safety and because McClellan was a flight risk.
{¶6} Officer Godfrey further testified that Patrolman Jason Bugh then
arrived with the canine and conducted a drug sniff of the vehicle; that the canine
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alerted to the presence of drugs, and a search was then conducted on the vehicle,
with marijuana residue found in the glove box and in the center console; that a
loaded pistol was also found in an attaché case in the vehicle; that he then
conducted a criminal history inquiry on McClellan, and McClellan also admitted,
in response to questioning, to having a prior conviction for “narcotics” (motion to
suppress hearing tr., p. 23); that McClellan was then placed under arrest; that he
could not recall whether McClellan was asked about his prior conviction before or
after he was arrested; that this stop was conducted outside McClellan’s family’s
house, and McClellan’s girlfriend came out and spoke with him; and, that
McClellan can be heard on the videotape from the patrol car stating, “They found
my gun”; “What do you expect me to ride around without it”; and, “Go to my crib,
get the dope, it’s in the burgundy coat, the burgundy coat, it’s right here in my
crib” (Id. at p. 25).
{¶7} On cross-examination, Officer Godfrey testified that McClellan told
him that he picked up Cannon because he was a relative and needed a “ride” (Id. at
p. 30); that, even though he believed there to be a drug transaction between
McClellan and Cannon, he did not call other officers or drug units for backup; that
McClellan was never Mirandized, even after being placed under arrest; that he did
not have a search warrant to search the attaché case in the vehicle; and, that the
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case was not locked, but he did not know whether the weapon was in plain sight
because the weapon was found by Patrolman Bugh.
{¶8} Patrolman Jason Bugh of the Lima Police Department testified that,
on January 3, 2007, he was called by Officer Godfrey to conduct a canine sniff for
narcotics; that the dog is certified through the International Police Work Dog
Association (“IPWDA”) and the Ohio Peace Officer Training Academy
(“OPOTA”); that, when he arrived on the scene, he walked the dog around the
vehicle, and the dog alerted to the presence of narcotics at the drivers-side door;
that he then conducted a search of the vehicle with the other officers; that, based
upon the search, he discovered marijuana residue in the center console and in the
glove box; that he also found a nine millimeter pistol in a soft-sided bag; that he
was searching the bag for narcotics when he discovered the pistol; that he could
not remember whether the bag was open or closed at the time; and, that the bag
was in plain view but the contents were not.
{¶9} At the conclusion of the presentation of evidence, a videotape of the
traffic stop, purported to be an original, was admitted into evidence, with no
objection from McClellan.
{¶10} Subsequently, McClellan’s trial counsel withdrew pursuant to
McClellan’s request, and new counsel was retained.
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{¶11} In August 2007, pursuant to McClellan’s oral motion, the trial court
reopened the motion to suppress proceedings for further testimony based upon the
fact that new counsel had been retained.
{¶12} In September 2007, a continuation of the motion to suppress hearing
was held, in which McClellan moved to strike Officer Godfrey’s testimony on the
grounds that he was not competent to testify regarding the traffic stop because he
was in an unmarked patrol car and not in uniform. The trial court, however, took
the motion under advisement. Subsequently, McClellan called himself as a
witness, to which the State objected. McClellan proffered his testimony that his
previous trial counsel was ineffective because he did not permit him to testify at
the suppression hearing despite his request. The trial court then sustained the
objection on the grounds that McClellan was available as a witness at the prior
hearing on the motion to suppress.
{¶13} Thereafter, Brian Estelle testified that he lived in the neighborhood
where McClellan’s traffic stop took place; that the stop occurred across the street
from his house; that he saw the police bring in a dog that circled McClellan’s
vehicle four or five times; that, at one point, “the dog stopped, or something” and
the police then searched the vehicle (continuation of motion to suppress hearing,
tr., p. 9); and, that he could not remember if the dog ever scratched or jumped at
the vehicle.
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{¶14} Latoya McClellan testified that she was McClellan’s first cousin;
that she was in her house when McClellan’s traffic stop occurred outside of the
house; that she came outside and watched as the police walked the dog around
McClellan’s vehicle; that they walked the dog around the vehicle three times, and
then an officer “threw this thing at the car and [the dog] still didn’t do nothing. It
just started scratching his doors” (Id. at p.14); and, that she could not recall the
month when this occurred, but that it was in the summer. Subsequently, the
hearing was continued due to the failure of a subpoenaed witness to appear.
{¶15} On October 11, 2007, the hearing on the motion to suppress
resumed, at which time McClellan again proffered his own testimony, and the trial
court again denied the testimony. However, the trial court permitted McClellan to
enter a written, sworn statement as a substitute for his earlier testimony proffer at
the September 2007 hearing. Thereafter, McClellan proffered a statement and
DVD from Tommy’s Film Works indicating that the videotape of the traffic stop
taken from the police cruiser had been altered. The trial court subsequently
accepted the proffer and allowed it in the record as an exhibit, but denied its
admission for evidentiary purposes for the suppression hearing.
{¶16} On October 18, 2007, the trial court denied McClellan’s motion to
suppress, finding there to be probable cause to stop McClellan’s vehicle based
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upon Officer Godfrey’s observance of the traffic violation.1 Additionally, the trial
court found that the officers acted reasonably in detaining McClellan in the back
of the patrol car in order to gather the information necessary for the citation due to
McClellan’s lack of a driver’s license or other form of identification; that
McClellan’s detention was not unreasonable in duration; that the officers did not
need a reasonable suspicion of drug activity in order to conduct a canine drug sniff
of the vehicle because a canine drug sniff is not considered a search under the
Fourth Amendment to the United States Constitution; that there was no Fourth
Amendment violation when the officers walked a drug canine around the vehicle
subsequent to the lawful traffic stop; that the incriminating statements made by
McClellan while in the back seat of the patrol car were unsolicited; and, that the
officers had probable cause to search McClellan’s vehicle based upon the fact that
Cannon, known for being involved with illegal drugs, was in the vehicle for a
short period of time, and that the dog alerted to the presence of drugs in the
vehicle.
{¶17} On October 20, 2007, McClellan filed a motion requesting that the
State furnish the original videotape taken from the patrol car on the day of his stop
and arrest so that he may have it analyzed by an expert to determine its
1
We note that, although the trial court found the presence of probable cause to effectuate the traffic stop,
the lesser standard of reasonable articulable suspicion is all that is necessary to make an investigatory stop.
See Delaware v. Prouse (1979), 440 U.S. 648; Terry v. Ohio (1968), 392 U.S. 1.
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authenticity.
{¶18} In December 2007, the trial court granted McClellan’s motion,
permitting him to inspect or copy the original videotape taken from the patrol car.
{¶19} In January 2008, McClellan filed another motion to suppress all
evidence seized from his vehicle, asserting that the videotape from the patrol car
provided by the State was missing a total of three minutes and thirteen seconds as
compared to another videotape he received of the stop; that part of the sections
missing from the videotape included a portion of the canine sniff of the vehicle
and a man exiting a vehicle across the street, who could be another potential
witness in the case; and, that an analysis of the videotape revealed that parts of it
were fast forwarded and blocked out.
{¶20} In March 2008, McClellan filed a “Notice to Court” stating that,
based upon an expert analysis of the purported original videotape from the patrol
car, the videotape was not an original, but a subsequent generation. Attached to
the filing was a letter from McClellan’s video expert, concluding that the
videotape submitted by the State was not an original because of its poor quality
due to being copied multiple times, the distortion present on the video, and the fact
that the video is over three minutes shorter in length than other copies of
videotapes from the same incident.
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{¶21} Subsequently, pursuant to McClellan’s request, his second trial
counsel withdrew from the case, and, in April 2008, McClellan retained new
counsel.
{¶22} In May 2008, McClellan filed a renewed motion to suppress, a
motion for contempt, a motion to dismiss for speedy trial violations, and a motion
to dismiss for due process violations, asserting, in part, that the evidence seized as
a result of the stop and search of his vehicle must be suppressed because of his
prior attorney’s ineffective assistance in preventing him from testifying at the
motion to suppress hearing and conceding that he did not use his turn signal when
he, in fact, did use a proper turn signal; because his attorney was ineffective in
failing to impeach Officer Godfrey at the suppression hearing about his statement
that he detained McClellan in order to ascertain his identity; because Patrolman
Thompson, the officer who conducted the stop of McClellan’s vehicle, did not
have probable cause to conduct the stop because he was not given information
from Officer Godfrey regarding the nature of the alleged traffic violation; and,
because the traffic stop was the result of prohibited selective enforcement.
Furthermore, McClellan argued, in part, that the testimony of Officer Godfrey
should be stricken because he was incompetent to testify regarding the citation, as
he was not in uniform and in a marked patrol car pursuant to R.C. 4549.14; that
the evidence seized from his vehicle and any statements he made to the officers
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must also be suppressed on the grounds that his detention was unreasonable under
the United States and Ohio Constitutions, as Officer Godfrey knew his identity
prior to making the stop and did not need to detain him in order to discover this
information; that the State must be held in contempt for failing to comply with
discovery rules and for failing to provide the original videotape from the traffic
stop, as the defense expert concluded that the videotape submitted by the State was
not the original; that the indictment should be dismissed for a violation of federal
and state speedy trial rights due to delays caused by the State’s failure to provide
proper discovery; and, that the indictment should be dismissed due to a due
process violation in the form of the State’s destruction or loss of material
exculpatory evidence, specifically, the original videotape from the patrol car.
{¶23} In July 2008, the trial court denied McClellan’s renewal of the
motion to suppress, stating that he raised similar arguments to the first motion,
except for the additional argument pertaining to the altered videotape, but because
McClellan stipulated to the admission of the videotape at the suppression hearing,
and because the motion had already been ruled upon, the renewal motion was
barred by res judicata. Furthermore, the trial court also denied McClellan’s
motion arguing that his counsel was ineffective; that the length of his detention
warranted the suppression of evidence; that the State should be held in contempt
for failing to provide the original videotape from the traffic stop; and, that the
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indictment must be dismissed due to a violation of his right to a speedy trial and a
violation of due process. Specifically, the trial court found that McClellan’s
various motions and changes in trial counsel tolled the time for speedy trial, and
that there was no evidence demonstrating that the State destroyed any material,
exculpatory evidence. Additionally, the trial court stated the following in its
judgment entry:
With regard to the cruiser videotape, the Due Process Clause of
the United States Constitution does not require the state to
employ particular investigative techniques to the defendant’s
liking. * * * Therefore the State did not even need to video tape
the stop of defendant. All of the defendant’s arguments
regarding the cruiser tape are based upon defendant’s
assumption that the videotape that was admitted into evidence at
the suppression hearing was somehow altered and is not the
original cruiser tape. Defendant argues that the “destroyed” or
“edited” portions might be favorable to him. Defendant says his
expert can show that the video admitted into evidence at the
suppression hearing is not the original. Even if the Court
believed the expert’s testimony could establish such a fact, that
opinion might be pertinent to the admissibility of the exhibit at
trial, but does not require dismissal. (The exhibit was admitted
by stipulation at the suppression hearing). Defendant says the
expert can show that the video was edited to take out parts
favorable to him. This is nothing but pure speculation. Even if
the expert could show the video is not an original, there is no
way for the expert to say what the content of the original was.
The Due Process Clause is not violated when the state fails “to
preserve potentially useful evidence” “unless a criminal
defendant can show bad faith on the part of the police.” * * *
Defendant has had months to establish bad faith on the part of
police and has not presented anything but self-serving
speculation as part of his continual efforts to delay this case.
* **
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Officer Godfrey has already testified that the video is blurry.
The defendant is free to cross examine Godfrey, if he testifies at
trial, or any State’s witness that testifies, as to the content and
quality of the video, bring in his expert at trial to attack the
originality or admissibility of the tape, if proffered as an exhibit
by the State, and to argue that the videotape might have been
exculpatory. The state, however, has no constitutional duty to
ensure that defendant’s traffic stop was recorded on video or
audio tape.
(Emphasis in original.) (Citations omitted.) (July 2008 Judgment Entry, pp. 6-8).
{¶24} In July 2008, McClellan’s third different trial counsel withdrew from
the case, and, in August 2008, the trial court appointed new trial counsel and
continued the trial date.
{¶25} In October 2008, McClellan’s fourth different trial counsel withdrew
from the case pursuant to McClellan’s request, and new trial counsel was
appointed.
{¶26} In January 2009, the case proceeded to a jury trial. During voir dire,
the State exercised a peremptory challenge to excuse an African-American woman
from the venire, and McClellan subsequently raised a Batson challenge, arguing
that the woman was dismissed on the impermissible basis of race. Subsequently,
the trial court overruled the challenge, finding that the dismissal was racially
neutral, in that the woman’s sister had a prior conviction for the sale and
possession of narcotics, and some of the same police officers involved in that case
were also involved in the present case.
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{¶27} During the presentation of evidence, Officer Godfrey testified to the
events of McClellan’s traffic stop and arrest. During his testimony, the videotape
from the traffic stop was played before the jury, with Officer Godfrey identifying
the videotape as the same videotape collected from his vehicle on the day of
McClellan’s arrest and stating that it depicted the events as he described them.
{¶28} After the State’s presentation of evidence, McClellan renewed his
objection to the admission of the State’s exhibits, including the videotape of the
traffic stop, on the grounds that the evidence was the product of an illegal stop and
search of his vehicle, and that the evidence was not properly maintained after
collection. The trial court then overruled the objection and admitted all of the
State’s exhibits, including the videotape from the traffic stop.
{¶29} Subsequently, Edward Primo testified on direct examination that he
owns an audio and video production company; that he reviewed what was
purported to be the original videotape from the traffic stop in this case, the same
tape submitted into evidence; that, initially, he was not able to get the video to
play, but, by using various techniques, he was able to view the images on the tape;
that he compared the video to copies of the traffic stop he received from the
previous attorney in the case and detected “several anomalies” (trial tr., vol. 3, p.
487); that the purported original videotape was lower in quality than the copy, the
image on the original was weaker than the copy, the original was around three
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minutes shorter in length than the copy, and there were different time and date
stamps at the beginning and end of the original videotape; that the date stamp on
the original videotape changed to 2006 forty-five minutes after the traffic stop, and
then subsequently changed to 2005; that, when a videotape is copied, the images
become less clear; and, that, based upon all of these facts, he believed that the
purported original videotape was actually a copy.
{¶30} On cross-examination, Primo testified that he was aware that
videotapes taken from police cruisers were taken from the vehicles for thirty days
and then placed back into circulation; that he was aware that the videotape he
examined had been in circulation at the Lima Police Department for several years;
that, “if that tape was recycled in 2006 [he] would expect to see a whole 2006
recording instead of a piece from 2007 in the middle of it” (Id at p. 497); and, that
he expected to see the rest of the eight-hour shift from the day of McClellan’s
traffic stop because he was told by another law enforcement officer that it would
be on the videotape, but he discovered that McClellan’s traffic stop was the only
part of that day on the videotape.
{¶31} Subsequently, the jury convicted McClellan on the one count of
having a weapon while under a disability, and he was sentenced to a three-year
prison term.
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{¶32} It is from his conviction and sentence that McClellan appeals,
presenting the following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS
THE EVIDENCE RETRIEVED AS A RESULT OF THE STOP
AND SEARCH OF THE DEFENDANT’S AUTOMOBILE.
Assignment of Error No. II
THE TRIAL COURT ERRED IN FINDING THAT THERE
WAS PROBABLE CAUSE TO STOP THE DEFENDANT’S
VEHICLE.
Assignment of Error No. III
THE TRIAL COURT ERRED IN PERMITTING THE
TESTIMONY OF OFFICER GODFREY AT THE
SUPPRESSION HEARING AND TRIAL.
Assignment of Error No. IV
THE DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL.
Assignment of Error No. V
THE TRIAL COURT ERRED IN OVERRULING THE
DEFENDANT’S BATSON CHALLENGE.
Assignment of Error No. VI
THE TRIAL COURT ERRED IN ADMITTING THE
VIDEOTAPE OF THE TRAFFIC STOP INTO EVIDENCE.
{¶33} Due to the nature of McClellan’s arguments, we elect to address his
first two assignments of error together.
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Assignments of Error Nos. I and II
{¶34} In his first assignment of error, McClellan asserts that the trial court
erred in failing to suppress the evidence obtained from the search of his vehicle.
Specifically, McClellan contends that, because the search of his vehicle was
incident to his arrest, the police officers were only permitted to search if they had a
reasonable belief that the vehicle would contain evidence of the crime for which
he was arrested, or they were only permitted to search within reaching distance of
the passenger compartment of the vehicle as set forth in the United States Supreme
Court decision of Arizona v. Gant (2009), ___ U.S. ___, 129 S.Ct. 1710.
McClellan further argues that, because he was arrested for failure to properly
signal a turn and his vehicle could not contain evidence of that crime, and because
the police searched beyond the reaching distance of the passenger compartment,
the search was unreasonable under the Fourth Amendment to the United States
Constitution and Section 14, Article I of the Ohio Constitution, and the evidence
must be suppressed.
{¶35} In his second assignment of error, McClellan argues that the trial
court erred in finding there was probable cause for his traffic stop and in failing to
suppress all evidence seized as a result of the stop. Specifically, he contends that
Officer Thompson did not have probable cause to stop his vehicle where he was
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merely instructed by Officer Godfrey to effectuate the stop, and where he did not
have personal knowledge of the facts supporting the stop.
Standard of Review
{¶36} A review of the trial court’s ruling on a motion to suppress presents
mixed questions of law and fact. State v. Dudli, 3d Dist. No. 3-05-13, 2006-Ohio-
601, ¶12, citing United States v. Martinez (C.A.11, 1992), 949 F.2d 1117. When
deciding a motion to suppress, the trial court is the trier of fact and judges the
credibility of witnesses and determines the weight to be given to the evidence.
State v. Johnson (2000), 137 Ohio App.3d 847, 850. Therefore, when reviewing a
trial court’s decision on a motion to suppress, the appellate court must accept the
trial court’s findings of facts, provided they are supported by competent, credible
evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶100, citing State
v. Fanning (1982), 1 Ohio St.3d 19, 20. The appellate court then reviews the trial
court’s application of the law to the facts de novo. Roberts, supra, citing State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8.
Constitutional Requirements of a Vehicle Stop and Search
{¶37} The Fourth Amendment to the United States Constitution and
Section 14, Article I of the Ohio Constitution prohibit unreasonable searches and
seizures, and require the suppression of any evidence seized as a result of an
unreasonable search and seizure. Mapp v. Ohio (1961), 367 U.S. 643, 649; State
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v. Jones, 88 Ohio St.3d 430, 434, 2000-Ohio-374, overruled on other grounds by
State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931.
{¶38} To determine the constitutionality of a traffic stop, the reviewing
court must consider whether the police officer had a sufficient articulable
suspicion of criminal activity by evaluating the objective facts surrounding the
stop. State v. Vlachos, 3d Dist. No. 17-08-24, 2009-Ohio-915, ¶¶10-11, citing
State v. Bobo (1988), 37 Ohio St.3d 177, 179; Dayton v. Erickson, 76 Ohio St.3d
3, 11-12, 1996-Ohio-431. A police officer’s testimony alone is sufficient to
establish reasonable articulable suspicion for a stop. See State v. Claiborne, 2d
Dist. No. 19060, 2002-Ohio-2696. Additionally, “[w]here a police officer stops a
vehicle based on probable cause that a traffic violation has occurred or was
occurring, the stop is not unreasonable under the Fourth Amendment to the United
States Constitution * * *.” Erickson, 76 Ohio St.3d at 11. Probable cause is
defined as “a reasonable ground for belief of guilt,” State v. Moore, 90 Ohio St.3d
47, 49, 2000-Ohio-10, quoting Carroll v. United States (1925), 267 U.S. 132, 161,
and is determined by “examining the historical facts, i.e., the events leading up to
a stop or search, ‘viewed from the standpoint of an objectively reasonable police
officer.’” Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, ¶14,
quoting Ornelas v. United States (1996), 517 U.S. 690, 696. Moreover, a finding
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of probable cause is fact-specific and turns upon what the officer knew at the time
he conducted the traffic stop. Erickson, 76 Ohio St.3d at 10.
{¶39} However, where a police officer conducts a traffic stop at the request
of another officer, it is the knowledge of the requesting officer that determines the
presence of articulable suspicion or probable cause.
A police officer need not always have knowledge of the specific
facts justifying a stop and may rely, therefore, upon a police
dispatch or flyer. * * * This principle is rooted in the notion that
“effective law enforcement cannot be conducted unless police
officers can act on directions and information transmitted by
one officer to another and that officers, who must often act
swiftly, cannot be expected to cross-examine their fellow officers
about the foundation for the transmitted information.” * * *
When a dispatch is involved, therefore, the stopping officer will
typically have very little knowledge of the facts that prompted
his fellow officer to issue the dispatch. The United States
Supreme Court has reasoned, then, that the admissibility of the
evidence uncovered during such a stop does not rest upon
whether the officers relying upon a dispatch or flyer “were
themselves aware of the specific facts which led their colleagues
to seek their assistance.” It turns instead upon “whether the
officers who issued the flyer” or dispatch possessed reasonable
suspicion to make the stop.
(Emphasis in original.) (Citations omitted.) Maumee v. Weisner 87 Ohio St.3d
295, 297, 1999-Ohio-68.
{¶40} Furthermore, the United States and Ohio Constitutions generally
require a warrant before conducting a search, but a warrantless search of an
automobile is permissible where the search is based upon probable cause that the
vehicle contains contraband. Maryland v. Dyson (1999) 527 U.S. 465, 466-467;
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State v. Blevins, 3d Dist. No. 9-06-40, 2007-Ohio-6972, ¶39, citing Moore, 90
Ohio St.3d 47. Additionally, “‘[w]here police officers have probable cause to
search an entire vehicle, they may conduct a warrantless search of every part of
the vehicle and its contents, including all movable containers and packages, that
may logically conceal the object of the search.’” Blevins, 2007-Ohio-6972, at ¶41,
quoting State v. Welch (1985), 18 Ohio St.3d 88, syllabus.
{¶41} In State v. Murrell, 94 Ohio St.3d 489, 2002-Ohio-1483, the
Supreme Court of Ohio found that, pursuant to the Fourth Amendment to the
United States Constitution and Section 14, Article I of the Ohio Constitution, a
police officer who has made a lawful custodial arrest of an individual may search
the passenger compartment of his automobile as a “contemporaneous incident of
that arrest.” Murrell, 94 Ohio St.3d 489, at syllabus, citing New York v. Belton
(1981), 453 U.S. 454, 460. However, in Gant, 129 S.Ct. 1710, the United States
Supreme Court limited automobile searches incident to a lawful arrest, as set forth
in Belton, by requiring that these searches be restricted to the reaching distance of
the passenger compartment of the vehicle when the individual is unsecured, or
where the police have a reasonable belief that evidence of the crime for which the
individual was arrested may be found in the vehicle.
[O]ur opinion [in Belton] has been widely understood to allow a
vehicle search incident to the arrest of a recent occupant even if
there is no possibility the arrestee could gain access to the vehicle
at the time of the search. * * * Accordingly, we reject this
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reading of Belton and hold that the Chimel rationale authorizes
police to search a vehicle incident to a recent occupant’s arrest
only when the arrestee is unsecured and within reaching
distance of the passenger compartment at the time of the search.
Although it does not follow from Chimel, we also conclude that
circumstances unique to the vehicle context justify a search
incident to a lawful arrest when it is “reasonable to believe
evidence relevant to the crime of arrest might be found in the
vehicle.”
(Citations omitted.) Gant, 129 S.Ct. at 1718-1719.
The Stop of McClellan’s Vehicle
{¶42} In the case at bar, McClellan was cited for failure to signal a turn.
R.C. 4511.39 governs this offense, and provides, in pertinent part:
(A) No person shall turn a vehicle or trackless trolley or move
right or left upon a highway unless and until such person has
exercised due care to ascertain that the movement can be made
with reasonable safety nor without giving an appropriate signal
in the manner hereinafter provided.
When required, a signal of intention to turn or move right or left
shall be given continuously during not less than the last one
hundred feet traveled by the vehicle or trackless trolley before
turning * * *.
***
Any stop or turn signal required by this section shall be given
either by means of the hand and arm, or by signal lights that
clearly indicate to both approaching and following traffic
intention to turn or move right or left * * *.
{¶43} Patrolman Thompson conducted the traffic stop of McClellan. At the
suppression hearing, he testified that he conducted the stop pursuant to Officer
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Godfrey’s request, as Godfrey was not in uniform and was in an unmarked patrol
car, whereas he was in uniform and driving a marked police cruiser, and that
Godfrey did not inform him of the reason for the stop. Furthermore, Officer
Godfrey testified that he observed McClellan make a right turn without using a
turn signal.
{¶44} Accordingly, although Patrolman Thompson did not have probable
cause himself to conduct the traffic stop, he relied upon Officer Godfrey’s request
for the stop, and Officer Godfrey had probable cause to believe that a traffic
violation was committed, as he observed McClellan’s turn without the use of a
turn signal. Consequently, we find the trial court did not err in denying
McClellan’s motion to suppress on the grounds that probable cause existed to
conduct the traffic stop.
The Search of McClellan’s Vehicle
{¶45} Here, Officer Godfrey testified that he observed McClellan pick up a
man whom he knew to have had prior contact with the police; that McClellan
drove a few blocks with the man in the vehicle, and the man subsequently got out
of the vehicle; that this activity was similar to many drug deals he observed in the
past; that this took place while he was patrolling in an area of town that was
known for drug deals; that, after McClellan was stopped for the turn signal
violation, he was uncooperative in providing personal information; that, due to his
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uncooperativeness, he was placed in handcuffs in the back of the police cruiser;
that a canine was called to the scene and alerted to the presence of narcotics in
McClellan’s vehicle; and, that a subsequent search of the vehicle revealed a small
amount of marijuana and a handgun inside of an attaché case.
{¶46} “[E]xamining [these] historical facts * * * ‘viewed from the
standpoint of an objectively reasonable police officer[,]’” Godwin, 110 Ohio St.3d
58, at ¶14, we find that the search of McClellan’s vehicle was based upon probable
cause and was not merely a search incident to an arrest, such that the rule
announced in Gant is applicable. It is clear from Officer Godfrey’s testimony that
there were reasonable grounds to believe that a drug deal had occurred, given the
short distance which McCellan drove with another man in his vehicle, the fact that
the incident occurred in an area known for drug deals, and the fact that a dog
alerted to the presence of drugs in McClellan’s vehicle. Accordingly, when
searching McClellan’s vehicle, the police were not limited to searching an area
within the reaching distance of the passenger compartment or searching only if
they had a reasonable belief that evidence related to McClellan’s arrest would be
found. The search of the vehicle based upon probable cause permitted the police
to search anywhere in the vehicle where the drugs may be found, “including all
movable containers and packages, that may logically conceal the object of the
search.” Blevins, 2007-Ohio-6972, at ¶41. Consequently, we find the rule
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announced in Gant to be inapplicable and that the trial court did not err in failing
to suppress the evidence seized as a result of the search of McClellan’s vehicle.
{¶47} Accordingly, we overrule McClellan’s first and second assignments
of error.
Assignment of Error No. III
{¶48} In his third assignment of error, McClellan argues that the trial court
erred in permitting the testimony of Officer Godfrey at trial and the suppression
hearing. Specifically, he contends that, because Officer Godfrey was not in
uniform or driving a marked patrol car at the time of the traffic stop, he was not
permitted to testify about the stop pursuant to Evid.R. 601(C). We disagree.
{¶49} An appellate court reviews the trial court’s decision on the
admission of evidence for an abuse of discretion. State v. Heft, 3d Dist. No. 8-09-
08, 2009-Ohio-5908, ¶62, citing State v. Issa, 93 Ohio St.3d 49, 64, 2001-Ohio-
1290. Accordingly, an appellate court will not disturb a trial court’s evidentiary
decision unless the trial court acted unreasonably, arbitrarily, or unconscionably.
State v. Barnes, 94 Ohio St.3d 21, 23, 2002-Ohio-68. When applying an abuse of
discretion standard, a reviewing court may not simply substitute its judgment for
that of the trial court. State v. Nagle (2000), 11th Dist. No. 99-L-089, 2000 WL
777835.
{¶50} Evid.R. 601(C) provides as follows:
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Every person is competent to be a witness except:
***
(C) An officer, while on duty for the exclusive or main purpose
of enforcing traffic laws, arresting or assisting in the arrest of a
person charged with a traffic violation punishable as a
misdemeanor where the officer at the time of the arrest was not
using a properly marked motor vehicle as defined by statute or
was not wearing a legally distinctive uniform as defined by
statute.
{¶51} Additionally, R.C. 4549.14 provides a similar standard as to when an
officer is incompetent to testify as a witness. It provides:
Any officer arresting, or participating or assisting in the arrest
of, a person charged with violating the motor vehicle or traffic
laws of this state, provided the offense is punishable as a
misdemeanor, such officer being on duty exclusively or for the
main purpose of enforcing such laws, is incompetent to testify as
a witness in any prosecution against such arrested person if such
officer at the time of the arrest was using a motor vehicle not
marked in accordance with section 4549.13 of the Revised Code.
{¶52} The phrase “while on duty for the exclusive or main purpose of
enforcing traffic laws” contained in Evid.R. 601(C) and similar language in R.C.
4549.14 refers to “the officer’s main purpose for his whole period of duty and not
to his duty during the apprehension and arrest of the suspect.” State v. Huth
(1986), 24 Ohio St.3d 114, 116, citing Columbus v. Stump (1974), 41 Ohio App.2d
81, 85.
{¶53} Here, Officer Godfrey testified that he was on patrol in an unmarked
police cruiser and that he was not wearing a police uniform. However, he also
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Case No. 1-09-21
testified that he was on duty that day to observe activity at a suspected drug house.
Accordingly, we find that Evid.R. 601(C) and R.C. 4549.14 did not apply to bar
Officer Godfrey from testifying regarding the traffic stop, as he was not on duty at
the time to enforce traffic laws, but was conducting surveillance and merely
happened to observe potential drug activity and a subsequent traffic violation.
{¶54} Accordingly, McClellan’s third assignment of error is overruled.
Assignment of Error No. IV
{¶55} In his fourth assignment of error, McClellan argues that he was
denied the effective assistance of counsel. First, he contends that his trial counsel
at the suppression hearing was ineffective when he failed to permit him to testify,
when he admitted that McClellan failed to use his turn signal, and when he did not
object to the admission of the videotape of the traffic stop. Second, he also
contends that his trial counsel was ineffective by failing to object to a venire
containing only three African-Americans, thereby prejudicing his right to a fair
trial. We disagree.
{¶56} An ineffective assistance of counsel claim requires proof that trial
counsel’s performance fell below objective standards of reasonable representation
and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio
St.3d 136, paragraph two of syllabus. To show that a defendant has been
prejudiced by counsel’s deficient performance, the defendant must prove that there
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exists a reasonable probability that, but for counsel’s errors, the outcome at trial
would have been different. Id. at paragraph three of syllabus. “Reasonable
probability” is a probability sufficient to undermine confidence in the outcome of
the trial. State v. Waddy (1992), 63 Ohio St.3d 424, 433, superseded by
constitutional amendment on other grounds as recognized by State v. Smith, 80
Ohio St.3d 89, 103, 1997-Ohio-355.
{¶57} Furthermore, the court must look to the totality of the circumstances
and not isolated instances of an allegedly deficient performance. State v. Malone
(1989), 2d Dist. No. 10564, 1989 WL 150798. “Ineffective assistance does not
exist merely because counsel failed ‘to recognize the factual or legal basis for a
claim, or failed to raise the claim despite recognizing it.’” Id., quoting Smith v.
Murray (1986), 477 U.S. 527.
{¶58} An attorney’s decision pertaining to matters of trial strategy is an
insufficient basis for an ineffective assistance claim. State v. Conway, 109 Ohio
St.3d 412, 2006-Ohio-2815, ¶101, citing State v. Hoffner, 102 Ohio St.3d 358,
2004-Ohio-3430, ¶45. Specifically, trial counsel’s failure to raise an objection,
alone, does not constitute ineffective assistance, State v. Turks, 3d Dist. No. 1-08-
44, 2009-Ohio-1837, ¶43, citing Conway, 109 Ohio St.3d 412, at ¶103, and trial
counsel’s decision on whether to call the defendant as a witness is generally within
the purview of trial strategy and is not an adequate basis for an ineffective
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Case No. 1-09-21
assistance claim unless prejudice can be affirmatively established. State v.
Solomon, 3d Dist. No. 9-03-58, 2004-Ohio-2795, ¶23, citing State v. Adkins
(2001), 144 Ohio App.3d 633, 646. Furthermore, ‘“trial counsel is entitled to a
strong presumption that all decisions fall within the wide range of reasonable
professional assistance.”’ State v. Tosco, 3d Dist. No. 9-08-21, 2009-Ohio-408,
¶36, quoting State v. Sallie, 81 Ohio St.3d 673, 675, 1998-Ohio-343.
{¶59} Here, McClellan had five different trial counsels throughout the
proceedings, and claims that his counsel at the suppression hearing and at trial
rendered ineffective assistance. With regard to his argument that his trial counsel
was ineffective for failing to object to the admission of the videotape of the traffic
stop at the suppression hearing, we find that, even if this was error, no prejudice
resulted. The videotape was only admitted at the suppression hearing for the
limited purpose of determining whether the evidence seized as a result of the stop
and search of McClellan’s vehicle should be suppressed, and the trial court had
sufficient evidence solely based upon the testimony of the officers that the stop
and search of the vehicle was constitutional. Furthermore, the trial court allowed
the videotape into evidence at trial despite McClellan’s argument as to its
admissibility. Accordingly, even if trial counsel would have raised an objection to
the videotape at the original suppression hearing, it seems improbable that the trial
court would have then found the videotape to be inadmissible. Consequently, it
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cannot be said that the outcome of the trial would have been different if trial
counsel would have raised an objection at the suppression hearing.
{¶60} McClellan also argues that his trial counsel was ineffective for
admitting that McClellan failed to use his turn signal. Yet, the only way in which
this admission would prejudice his case is if the trial court would have suppressed
the stop and search of McClellan’s vehicle in the absence of this admission.
However, because Officer Godfrey testified to McClellan’s failure to use a turn
signal, the trial court had a sufficient basis for a finding of probable cause to stop
the vehicle even in the absence of the admission. Accordingly, any error of trial
counsel was not prejudicial.
{¶61} McClellan further contends that trial counsel was ineffective in
failing to permit him to testify at the suppression hearing. However, although the
record does reflect that subsequent trial counsel argued that McClellan was
prevented from testifying by his trial counsel at the initial suppression hearing, the
record from the initial suppression hearing does not reflect that McClellan actually
requested to testify and that his attorney rejected his request. Accordingly, we
must presume that trial counsel made a tactical decision not to call McClellan to
testify, thereby placing this matter in the category of trial strategy and outside the
scope of a valid ineffective assistance claim. See Solomon, 2004-Ohio-2795, at
¶23. Furthermore, in the sworn statement entered by McClellan as a proffer for
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Case No. 1-09-21
his testimony, the only disputed facts regarding the traffic stop were that he did
use his turn signal and that the dog did not signal for drugs in his vehicle until
after the police officer threw something at his vehicle. While these facts are in
direct conflict with testimony presented by the State at the suppression hearing, it
is unlikely that the trial court would have suppressed the evidence on the basis of
this self-serving testimony. Consequently, we find that trial counsel’s failure to
call McClellan to testify does not create the prejudice necessary to prevail on an
ineffective assistance claim.
{¶62} Finally, McClellan argues that trial counsel was ineffective in failing
to object to a venire containing only three African-Americans. While the Sixth
Amendment to the United States Constitution guarantees a defendant the right to
have a jury drawn from a representative cross section of the community, Taylor v.
Louisiana (1975), 419 U.S. 522, 527; State v. Fulton (1991), 57 Ohio St.3d 120, fn
1, in order to establish a violation of this requirement, the defendant must prove
‘“(1) that the group alleged to be excluded is a ‘distinctive’ group in the
community; (2) that the representation of this group in venires from which juries
are selected is not fair and reasonable in relation to the number of such persons in
the community; and (3) that the representation is due to systematic exclusion of
the group in the jury-selection process.’” State v. Harrington, 4th Dist. No.
05CA3038, 2006-Ohio-4388, ¶31, quoting Fulton, 57 Ohio St.3d 120, at
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Case No. 1-09-21
paragraph two of the syllabus. Furthermore, there is no affirmative right to a jury
composed of a particular racial composition. U.S. v. Mack (C.A.6, 1998) 159 F.3d
208, 219, citing Taylor, 419 U.S. at 538. Here, McClellan fails to assert how the
venire was not fair and reasonable in relation to the racial composition of the
community, and that having only three African-Americans on the venire was the
result of their systematic exclusion. Consequently, because he cannot show that
trial counsel would have had any chance of success by raising such an objection,
he cannot demonstrate the prejudice necessary to prevail on this ineffective
assistance claim.
{¶63} Accordingly, we overrule McClellan’s fourth assignment of error.
Assignment of Error No. V
{¶64} In his fifth assignment of error, McClellan argues that the trial court
erred in overruling his objection to the State’s use of its peremptory challenge to
remove a potential juror on the basis of race. Specifically, he contends that the
State’s race-neutral explanation for the potential juror’s dismissal was not
sufficient and that the trial court should have permitted further questioning into the
potential juror’s ability to serve. We disagree.
{¶65} A trial court’s finding that the State did not exercise its challenges
with a discriminatory intent will not be reversed on appeal absent a determination
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Case No. 1-09-21
that the trial court’s finding was clearly erroneous. State v. Hernandez (1992), 63
Ohio St.3d 577, 583, citing Hernandez v. New York (1991), 500 U.S. 352.
{¶66} In Batson v. Kentucky (1986), 476 U.S. 79, the United States
Supreme Court found there to be a violation of the equal protection clause when a
peremptory challenge is utilized to strike a juror on the basis of race. Furthermore,
“Batson delineated a three-step procedure for evaluating claims of racial
discrimination in peremptory strikes. ‘First, the opponent of the strike must make
a prima facie showing of discrimination. Second, the proponent must give a race-
neutral explanation for the challenge. Third, the trial court must determine
whether, under all the circumstances, the opponent has proven purposeful racial
discrimination.’” State v. Douglas, 3d Dist. No. 9-05-24, 2005-Ohio-6304, ¶29,
quoting State v. White, 85 Ohio St.3d 433, 436, 1999-Ohio-281, citing Batson, 476
U.S. at 96-98. Moreover, “[o]nce a prosecutor has offered a race-neutral
explanation for the peremptory challenges and the trial court has ruled on the
ultimate question of intentional discrimination, the preliminary issue of whether
the defendant had made a prima facie showing becomes moot.” Hernandez, 500
U.S. at 359.
{¶67} In regards to the third step of the Batson test, the Ohio Supreme
Court has stated as follows:
[T]he trial court may not simply accept a proffered race-neutral
reason at face value, but must examine the prosecutor's
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Case No. 1-09-21
challenges in context to ensure that the reason is not merely
pretextual. “[T]he rule in Batson provides an opportunity to the
prosecutor to give the reason for striking the juror, and it
requires the judge to assess the plausibility of that reason in light
of all evidence with a bearing on it.” * * * If the trial court
determines that the proffered reason is merely pretextual and
that a racial motive is in fact behind the challenge, the juror may
not be excluded.
(Citations omitted.) State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, ¶65,
quoting Miller-El v. Dretke (2005), 545 U.S. 231, 251-252.
{¶68} In the case sub judice, McClellan objected to the State’s exercise of
a peremptory challenge to excuse an African-American woman from the venire.
In response to McClellan’s objection, the following discussion took place:
State: I would indicate to the Court that the reason the State
opted to exercise a peremptory on her is because she indicated
that she has a family member that has been convicted of drugs,
and specifically naming Easter Brownlow. As the Court may, or
may not, remember that was a long-term investigation by the
Lima Police Department’s P.A.C.E. unit and resulting in a jury
trial in that case wherein Ms. Brownlow was convicted and
sentenced to twenty-five plus years in prison and involving
offenses with the sale and/or possession of cocaine and crack
cocaine. A couple of things of note there, Judge. First of all, two
of the witnesses that will be testifying in this case are members,
or were at the time, of the P.A.C.E. unit, the same unit that
investigated and prosecuted Ms. Smith’s sister. Secondly, the
prior of Mr. McClellan’s that will be introduced into evidence in
this trial includes a trafficking in crack cocaine conviction. Also,
I want to point out to the Court that now-Sergeant Godfrey was
the lead investigator in that case and actually sat at the table
during trial. So, that’s a concern as well. He, as the Court
knows from the suppression hearing, is a key witness in this
hearing here today. That would be the reason we dismiss her.
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Case No. 1-09-21
***
McClellan’s Trial Counsel: Your Honor, I think we should call
Mrs. Smith back for further inquiry. * * * There was no
inquiry, I don’t believe, by either of us as to whether or not that
particular circumstance would make her, that is, Mrs. Smith,
unable to be fair, neutral, unbiased, and impartial in this case. *
* * But, given the close relationship of her sister, apparently a
notorious Lima drug case investigated by the P.A.C.E. unit and
with the lead investigator being the same investigator,
Investigator/Sergeant Godfrey, who sits here, I think we need
some more inquiry of Mrs. Smith to determine whether or not
that connection rises to the level of a race-neutral peremptory
challenge exercise.
Trial Court: Well, the Court’s going to deny the request to have
further questioning. I think your argument * * * might be a
little more well taken in terms of bringing her back in for
inquiry if this was a challenge for cause. * * * The explanation
that the State has offered is the fact that Mrs. Smith, by her own
answers, has disclosed that she is a sister to one Easter
Brownlow who, as the State has indicated, because of the past
record of Easter Brownlow, having nothing to do with her race
or the race of Mrs. Smith, the fact that they’re just sisters, is
their reason. * * * If it’s a sister, well, it’s facially race-neutral.
I find that the opponent [sic], in this case the defendant, of the
peremptory challenge has not proven purposeful racial
discrimination.
(Trial tr., Vol. 2, pp. 223-227).
{¶69} Even if we were to find that McClellan was able to make a prima
facie case of discrimination, the record clearly demonstrates that the State’s
exercise of its peremptory challenge was exclusively for race-neutral reasons, as
this potential juror’s sister was convicted of drug-related offenses due to the
investigations of some of the same officers who were involved in McClellan’s
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Case No. 1-09-21
case. Furthermore, once the State has offered a race-neutral explanation and the
trial court has determined there to be no purposeful discrimination, no further
inquiry into the ability of the potential juror to be fair and unbiased is necessary.
Consequently, we find that the trial court’s denial of McClellan’s motion was not
clearly erroneous.2
{¶70} Accordingly, we overrule McClellan’s fifth assignment of error.
Assignment of Error No. VI
{¶71} In his sixth assignment of error, McClellan argues that the trial court
erred in admitting the videotape of the traffic stop into evidence at trial.
Specifically, he asserts that, because the expert testimony he presented
demonstrated that the videotape was not authentic, the tape should not have been
admitted pursuant to Evid.R. 901. We disagree.
{¶72} We review the trial court’s admission of evidence under an abuse of
discretion standard, as set forth in our disposition of McClellan’s third assignment
of error. State v. Kessler, 3d Dist. No. 13-06-09, 2006-Ohio-6340, ¶33.
{¶73} Evid.R. 901 provides for the authentication or identification of
evidence prior to its admissibility. The rule provides, in pertinent part:
The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what
its proponent claims.
2
We further note that this juror would have been an alternate, and that the eventual alternate juror selected
did not participate in the deliberation of this case, thereby making any potential error harmless.
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Case No. 1-09-21
Evid.R. 901(A). Furthermore, a videotape is properly admitted into evidence upon
a showing that it accurately depicts what the proponent claims it to depict, Bryant
v. Terry, 9th Dist. No. 20140, 2001 WL 324389, citing Midland Steel Prods. Co.
v. U.A.W. Local 486 (1991), 61 Ohio St.3d 121, 129, and any quality problems in
the videotape go to its weight, not to its admissibility. State v. Benson, 11th Dist.
No. 2001-P-0086, 2002-Ohio-6942, ¶17.
{¶74} Here, Officer Godfrey testified that the videotape, although poor in
quality, depicted the events of the traffic stop as he described them. Although
McClellan’s expert, Edward Primo, testified that the videotape appeared to be a
copy from the original and that a few minutes of the traffic stop were missing, at
no point did Primo testify that the videotape did not depict the traffic stop.
Instead, Primo actually compared the videotape played at trial to other copies of
the traffic stop he received, and only disputed that the videotape was shorter in
length and of worse quality than the other copies, not that it inaccurately portrayed
the traffic stop. Furthermore, Evid.R. 1003 provides that a duplicate is admissible
to the same extent as an original unless there is a question raised as to its
authenticity or unless it would be unfair to admit the duplicate in lieu of the
original. See State v. Garcia, 3d Dist. No. 5-01-12, 2001-Ohio-2262. Even if
McClellan did raise a question as to the authenticity of the videotape, he only
questioned whether the videotape had been shortened in length and distorted in
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Case No. 1-09-21
quality, not whether the content had been altered to depict a different series of
events. Therefore, we find that the issues McClellan asserted in regards to the
videotape pertained to the weight of the evidence, and not its admissibility, and,
consequently, that the trial court did not abuse its discretion in admitting the
videotape into evidence.
{¶75} Accordingly, we overrule McClellan’s sixth assignment of error.
{¶76} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
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