State v. Moore , 74 Ohio App. 3d 334 ( 1991 )

While I concur with the judgment of the majority in overruling defendant's first assignment of error, I find it necessary to further clarify the opinion in light of the Ohio Supreme Court's recent decision in State ex rel. Clark v. Toledo (1990), 54 Ohio St. 3d 55, 560 N.E.2d 1313.

In Clark, the court held that R.C. 149.43 may be used by a criminal defendant in a post-conviction relief proceeding to gain access to information otherwise not discoverable under Crim.R. 16 for the reason that R.C. 149.43 creates a substantive right which cannot be abridged by Crim.R. 16. In Clark, the court narrowly limited its ruling to post-conviction relief proceedings and specifically did not rule on the application of R.C. 149.43 to original trial proceedings, but did note, at 57, 560 N.E.2d at 1315:

"The narrow issue in this case is whether R.C. 149.43 is available to a criminal defendant in a post-conviction proceeding, and it has not been necessary to address the possible application of R.C. 149.43 to original trial proceedings.

"We share the concern that widespread use of R.C. 149.43 by criminal defendants might place an intolerable burden on the administration of criminal justice. This court cannot, however, eliminate this eventuality by ignoring the substantive right conferred upon all persons, including Clark, by R.C. 149.43(B). Only the legislature can do so, as hereinabove indicated."

Thus, this opinion should not be interpreted as approving the trial court's conclusion that material which is not discoverable under Crim.R. 16(B)(2) is also, for that reason alone, not discoverable under R.C. 149.43

Although the court below did not specifically determine that the information sought to be discovered fell under an exception to the R.C. 149.43 rule that public records should be made available, as the majority states, "* * * [w]hile the better practice might be for a trial court to identify the exemption it invokes in denying disclosure, nothing contained in R.C. 149.43 or the case law to date mandates such requirement. * * *" Here, the information sought to be discovered was reviewed in camera and the court determined it was not discoverable under either Crim.R. 16(B)(2) or R.C. 149.43. The trial court's analysis thus meets the inherent requirement of R.C. 149.43 that the court review the information sought to be disclosed before making its determination:

"Under R.C. 149.43 and NBC, supra [State ex rel. NationalBroadcasting Co. v. Cleveland (1988), 38 Ohio St. 3d 79,526 N.E.2d 786], the trial court must scrutinize the records in question. If the trial court determines that the records in question are specific investigatory work product under R.C.149.43(A)(2)(c), or otherwise excepted from disclosure under R.C.149.43(A)(2), or that the records in question were specifically compiled in reasonable anticipation of a criminal action or proceeding under R.C. 149.43(A)(4), then neither the media nor the criminal defendant would be entitled to the records. The trial court would redact that which was excluded." Sanford v.Kelly (1989), 44 Ohio App. 3d 30, 34, 541 N.E.2d 124, 127.

Because Clark clearly indicates that its holding is intended to apply only where post-conviction relief is sought, and because the trial court appeared to have conducted a review sufficient to satisfy the mandate ofClark, I would concur in the view of the majority that the trial court did not err in denying defendant's pre-trial R.C. 149.43 motion for disclosure of witness statements.