State v. Billups (68 Ohio App. 3d 248, 1990)

John C. Young, Judge.

Appellant, David Billups, was charged with five counts of aggravated robbery with specifications, in violation of R.C. 2911.01, four counts of kidnapping with specifications, in violation of R.C. 2905.01, one count of aggravated burglary with specifications, in violation of R.C. 2913.01, one count of receiving stolen property, in violation of R.C. 2913.51, and one count of carrying a concealed weapon, in violation of R.C. 2923.12. Following a jury trial, appellant was found guilty on all counts. Appellant appeals from his conviction and raises the following five assignments of error:

“Assignment of Error No. One

“The defendant was deprived of his right to due process of law in violation of the United States Constitution and of his statutory and procedural rights when the trial court refused to allow defense counsel to inspect prior out-of-court statements made by the state’s witnesses to police officers. The trial court further erred by not making an independent in camera determination as to the producibility of such statements and by overruling the defendant’s request to preserve the statements at issue for purposes of appeal.

“Assignment of Error No. Two

“The trial court erred when it allowed the state, over objection, to improperly impeach the defendant and further erred when it allowed the state to present evidence not provided pursuant to the defendant’s discovery request to rebut the defendant’s alibi evidence in violation of due process of law.

“Assignment of Error No. Three

“The trial court erred when it failed to state on the record its essential factual findings, upon the defendant’s request, after it overruled the defendant’s motion to suppress evidence.

“Assignment of Error No. Four

“The trial court erroneously imposed terms of incarceration for convictions of firearm specifications and for convictions of felonies committed as part of the same transaction.

“Assignment of Error No. Five

“The trial court erred when it refused to instruct the jury on the law of alibi as requested by the defendant.”

The charges against appellant arose as a result of three separate incidents. Joe Carnahan testified that on January 17, 1988, at approximately 2:00 a.m., the gas station where he was employed was robbed by a male black who was armed with a gun. Money from Carnahan’s wallet was taken in addition to money from the cash register. The police were called and a description of the robber was given. At approximately 6:00 a.m., on the same day, witnesses testified that two men entered the residence located at 4629 Saint Francis Lane in Whitehall, Ohio, and robbed the occupants at gunpoint. Douglas Greenwald testified that he was at home watching a football game with his wife, Kyla Greenwald, and his mother-in-law, Eleanor Haffner, when two black men entered, produced a gun and took various items from the home plus jewelry and personal items from the women. The police were called and a report was taken which included the witnesses’ descriptions of the robbers. Photographs were taken of footprints which were left in the mud and latent fingerprints were lifted from various household items.

The following morning of January 18, 1988, Officer Mark Martin of the Whitehall Police Department saw the appellant using a pay phone near the parking lot of the United Dairy Farmer (“UDF”), a convenience store located at the intersection of East Broad Street and Yearling Road. Appellant resembled the description Officer Martin had been given of a suspect involved in the robbery on Saint Francis Lane. Officer Martin pulled into the UDF parking lot. He reported over the radio that he saw a man who met the physical description of the robbery suspect as given to him earlier. He also requested information on a 1986 gray Nissan with Florida plates which was parked at the UDF near the pay phone.

Appellant hung up the phone and started to walk away from the UDF. Officer Martin stopped him and asked to see some identification. Officer Martin testified that appellant responded that he did not have any identification. Conversely, appellant stated that Officer Martin took his driver’s license from him. According to Officer Martin, when he received a radio report that the car with the Florida license plates had been reported as stolen, he requested a back-up cruiser. Appellant, who overheard the radio report, took off running and was later found hiding in a shed behind some nearby apartments. A holster was found in the shed and the keys to the 1986 Nissan were recovered a few feet from the shed.

In the first assignment of error, appellant asserts that his rights were violated because the prosecution was not required to provide defense counsel with copies of certain statements allegedly made by witnesses to the police concerning their initial descriptions of the robber. Appellant argues further that the trial court should have made an in camera inspection of the police records to determine whether the state was required to produce the statements at issue and that those statements should have been preserved for appeal.

The state argues that defense counsel was provided with copies of the witnesses’ descriptions of the robber; however, the statements which defense counsel sought at trial were not discoverable because those statements were actually summaries prepared by the police officers themselves. According to the state, the trial court did make an in camera inspection of the records as requested by defense counsel. However, the trial court determined that the records at issue did not contain any inconsistencies, that they were police summaries and that the state was not required to produce them.

Crim.R. 16 provides for the discovery and inspection of certain types of information by both defense counsel and the prosecution during a criminal trial. Crim.R. 16(B)(1)(g) sets forth the procedure to be followed, when a demand for a witness’s out-of-court statement is made. Crim.R. 16(B)(1)(g) provides as follows:

“(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-examination or comment thereon.

“Whenever the defense attorney is not given the entire statement, it shall be preserved in the records of the court to be made available to the appellate court in the event of an appeal.” (Emphasis added.)

Appellant contends that the trial court should have made an in camera inspection of the police reports in question to determine whether or not the reports were merely summaries or if the reports contained statements of the witnesses which may have been inconsistent with their testimony at trial. The state, on the other hand, argues that the trial court did make an in camera inspection of the reports in question but that the court concluded that the reports did not contain any inconsistencies and that reports were simply summaries.

Upon review of the record, and specifically those pages in the transcript to which the state directs our attention, it is clear that the trial court did make an inspection of something per defense counsel’s request. Each time that defense counsel requested an opportunity to review certain reports pertaining to the witnesses’ descriptions of their robber, the prosecution presented something to the trial court which was reviewed by the trial judge. On each occasion, the trial court ruled that the statements which were reviewed were consistent with the witnesses’ testimony at trial. On three occasions, the trial court also commented that at least part, but not necessarily all, of a particular report was a summary. Unfortunately, none of the reports which were reviewed by the trial court was preserved in the record for appeal.

This court agrees with State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, wherein the Ohio Supreme Court found that portions of a police report which recite matters beyond a witness’s personal observations are privileged and excluded from discovery under Crim.R. 16(B)(2). Id. at 225, 15 OBR at 364, 473 N.E.2d at 316. However, based upon the language used by the trial court, it is possible that at least some portions of the reports reviewed may have contained statements which were made by the witnesses and, therefore, the reports may not have been just summaries. Specifically, the trial court made several references to the witnesses’ statements as follows:

“ * * * The Court notes [that the statement which has been examined] * * * contains no inconsistencies with his sworn testimony although the statement is much, much briefer than, obviously, any of the testimony that he has testified to.

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“THE COURT: There were no inconsistencies under Criminal Rule 16.

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“THE COURT: * * * Let the record reflect that there are no inconsistencies with the witness’ statement.

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“THE COURT: * * * Let the record reflect that the eyewitness’ statement is consistent with his testimony at trial.

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“THE COURT: Let the record reflect that there were no inconsistencies.

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“THE COURT: Let the record reflect that there are no inconsistent statements.”

Pursuant to Crim.R. 16(B)(1)(g), when the court determines that inconsistencies do not exist, the statement is not given to the defense attorney. However, whenever the defense attorney is not given the entire statement, the statement is preserved in the record of the case to be made available to the appellate court in the event of an appeal.

Clearly, the trial court erred in not preserving these statements in the record so that they would be available for review. Because the record indicates that these police reports may have contained some statements made by witnesses which should have been provided to defense counsel, appellant has clearly been prejudiced. Accordingly, appellant’s first assignment of error is well taken and is sustained.

In the second assignment of error, appellant argues that the trial court erred when it allowed the state, over objection, to improperly impeach the appellant. Appellant also contends that the trial court erred when it allowed the state to present evidence to rebut appellant’s alibi evidence without providing notice of such evidence beforehand.

Audrey Brown and Stephanie Griffin, two students at Central State University who were acquaintances of appellant, testified that appellant was frequently at the campus on weekends. Neither one of them could say for certain that appellant was on campus January 17, 1988 nor could they say for certain that he was not on campus January 17, 1988.

Appellant testified on his own behalf at trial. According to appellant’s testimony, he was at Central State University in Wilberforce, Ohio, on Sunday, January 17, 1988, watching the football playoff games when the robberies occurred. He arrived at the university on Saturday, January 16, 1988 and he did not leave until 1:00 or 2:00 a.m. Sunday, January 17, 1988 after the football games had ended.

On cross-examination, the prosecutor inquired whether or not appellant had discussed an alibi with Blaise Baker when Baker was his attorney. Appellant answered that he did not discuss any alibi with Baker. Appellant answered further that, if Baker filed a notice of alibi, as the prosecutor inferred that he had, then he did so without the appellant’s permission. Appellant consistently maintained that he never gave Baker the information contained in the notice of alibi which was filed by Baker. Appellant responded similarly when the prosecutor inquired as to whether or not he had knowledge that Terry Sherman, another attorney, had also filed a notice of alibi in appellant’s case which differed from the one filed by Baker. The prosecutor accused the appellant of now giving the court a third alibi.

The trial court allowed the amended notice of alibi, filed by Sherman, to be admitted into evidence over the objection of defense counsel and without any foundational testimony by Sherman. Sherman objected to being called as a witness because of the attorney-client privilege. He indicated that the information contained in the notice of alibi was a result of his own investigation. Baker, appellant’s former counsel, was called by the prosecution as a witness and was permitted to testify, over objection of defense counsel, as follows:

“Q. (By Mr. Sheeran) Mr. Baker, in your representation of Mr. Billups, did you have an occasion to file a notice of alibi in this case?

“A. I did.

“Q. Sir, I’m going to hand you what has been marked as a notice of alibi. I ask you if you recognize that?

“A. I do.

“Mr. Meyers: Objection, your honor, to this entire line, just so it is on the record.

“The Court: So as to what?

“Mr. Meyers: To this whole witness, to the questions that he is getting into.

“The Court: Overruled for the limited purpose.

“Mr. Sheeran: Thank you, your honor.

“Q. (By Mr. Sheeran) Is this your signature?

“A. It is.

“Q. And can you read the sentence that begins with the words ‘in regard to’? Just that one sentence.

“A. ‘In regard to January the 17th of 1988, the defendant states that he was with friends at an address located at 1215 Brentnell, Columbus, Ohio, 43219.’

“Q. And with regard to January 17th of 1988, that is the alibi that you filed in his behalf, correct?

“A. That’s correct.

“Q. And prior to filing that, did you in fact — did you in fact have conversations or consultations with the defendant concerning that alibi?

“A. Yes.

“Q. And it was after conversing with the defendant that you filed that notice of alibi on May the 11th of 1988, is that correct?

“A. That’s correct.”

The trial court permitted the above testimony of Baker and admission of the amended notice of alibi filed by Sherman pursuant to Evid.R. 801(D)(2)(d), which provides as follows:

“(D) Statements Which Are Not Hearsay. A statement is not hearsay if:

<( * * *

“(2) * * * The statement is offered against a party and is * * * (d) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship * * *.”

The state used the notices of alibi and the testimony of Baker to impeach appellant’s credibility. The prosecutor accused appellant of giving three different alibis for his whereabouts on January 17, 1988. Appellant emphatically denied telling Baker and Sherman the information contained in the notices of alibi. Appellant denied that he had any knowledge that these attorneys were going to or had filed notices of alibi in his case. Appellant denied giving his permission for his attorneys to file those notices of alibi. The prosecution, however, asked that appellant be personally accountable for those alibis, on the basis of agency principles, by virtue of Evid.R. 801(D)(2)(d).

Appellant argues that because the testimony of Baker and the notices of alibi were used to “impeach” appellant’s testimony, as if appellant had previously made these statements, Evid.R. 613 should have been applied instead of Evid.R. 801(D)(2)(d). Evid.R. 613 provides as follows:

“(A) Examining Witness Concerning Prior Statement. In examining a witness concerning