STATE OF OHIO, Plaintiff-Appellee v. TOMMY L. ARNETT, Defendant-Appellant
Appellate Case No. 2018-CA-3
Trial Court Case No. 2017-CR-388; (Criminal Appeal from Common Pleas Court)
IN THE COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MIAMI COUNTY
October 19, 2018
2018-Ohio-4227
Attorney for Plaintiff-Appellee
RENEE D. BUSSE, Atty. Reg. No. 0092823, 123 Market Street, P.O. Box 910, Piqua, Ohio 45356
Attorney for Defendant-Appellant
Rendered on the 19th day of October, 2018.
HALL, J.
{¶ 1} Tommy Arnett appeals from his convictions for assault and harassment by inmate. Finding no error, we affirm.
I. Background
{¶ 2} Arnett was first indicted on charges of harassment by inmate in December 2016. The charges resulted from an incident the month before at the Miami County Jail, where Arnett was incarcerated, between Arnett and corrections officers, when he allegedly struck one officer and repeatedly spit or tried to spit at the officers. The charges were dismissed by the State in April 2017 pending the possibility of new evidence.
{¶ 3} In August 2017, Arnett was reindicted on two counts of harassment by inmate and also indicted on one count of assaulting a corrections officer. In discovery, the State produced a video recording from cameras at the jail that it believed captured the incident. Sometime after the video was produced, it was discovered that the video captured only the immediate aftermath of the incident. According to the State, it contacted the jail and asked it to send the full video recording, but jail personnel said that the video no longer existed.
{¶ 4} The case was tried to a jury in early 2018. Among those witnesses who testified for the State were the corrections officers involved in the incident and the Sheriff‘s deputy who investigated. The corrections officers testified that, on November 7, 2016, Arnett was upset, pounding on his cell wall, threatening officers, and attempting to flood his cell. Lieutenant Tiffany Upham and Corrections Officers Jack Snyder and Jacob Kerrigan removed Arnett from his second-floor cell to take him down to the first floor so that the cell could be cleaned. Snyder testified that when Arnett walked out of the cell, he
{¶ 5} Sergeant Randy Slusher responded to the disturbance and investigated the incident. He testified that when he arrived not long after the incident had occurred, he noticed right away that Kerrigan‘s ear was “really red.” (Id. at 197). He photographed Kerrigan‘s ear and cheek, and the photograph was admitted at triаl.
{¶ 6} On the first floor of the jail, a camera points directly at the elevator from one angle and another camera points to the same location from a different angle. The corrections officers agreed that the cameras should have recorded the entire incident, but the video recording played at trial submitted as a joint exhibit showed only the moments immediately after the incident. Sergeant Slusher testified that he never requested or watched the video from the cameras. No explanation was provided at trial for why the
{¶ 7} Arnett testified in his defense and denied assaulting Officer Kerrigan or spitting at any of the officers. On cross-examination, he read a portion of his written statement from the night of the incident, in which he stated that an officer, presumably Officer Kerrigan, ” ‘put me in the chair and I jerked away from him. My elbow rubbed across the face—across his face.’ ” (Id. at 226).
{¶ 8} The jury found Arnett guilty on all three counts. The trial court sentenced him to twelve months in prison on each count and ordered that he serve two of the sentences consecutively for a total of twenty-four months in prison.
{¶ 9} Arnett appealed.
II. Analysis
{¶ 10} Arnett‘s sole assignment of error is a claim that trial counsel was ineffective:
DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL WHERE TRIAL COUNSEL FAILED TO FILE A MOTION TO COMPEL, MOTION TO SUPPRESS, OR MOTION TO DISMISS RELATIVE TO THE STATE‘S FAILURE TO PRODUCE POTENTIALLY [EXCULPATORY] VIDEO EVIDENCE.
{¶ 11} To establish a claim for ineffective assistance, Arnett must show both that trial counsel‘s performance fell below an objective standard of reasonableness and that there is a reasonable possibility that but for counsel‘s deficient performance the result of thе proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Arnett argues that it was objectively unreasonable for trial counsel not to file
{¶ 12} “The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects a criminal defendant from being convicted where the state fails to preserve materially exculpatory evidence or destroys in bad faith pоtentially useful evidence.” (Citation omitted.) State v. Bolden, 2d Dist. Montgomery No. 19943, 2004-Ohio-2315, ¶ 51. Evidence is “materially exculpatory” if it (1) possesses “an exculpatory value that was apparent before the evidence was destroyed” and (2) is “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 74. “Potentially useful evidence indicates thаt the evidence may or may not have incriminated the defendant. The failure to preserve evidence that by its nature or subject is merely potentially useful violates a defendant‘s due process rights only if the police or prosecution acted in bad faith.” State v. Cox, 2d Dist. Montgomery No. 25477, 2013-Ohio-4941, ¶ 88. “The defendant bears the burden to prove that the evidence in question was materially exculpatory, not merely рotentially useful.” State v. McClain, 2016-Ohio-838, 60 N.E.3d 783, ¶ 23 (2d Dist.), citing Powell at ¶ 74.
{¶ 13} Arnett concedes that, under current law, he cannot satisfy his burden to prove that a video depicting the entire incident would have been materially exculpatory.
{¶ 14} McClain also concerned unpreserved video recordings. In that case, the defendant was convicted of heroin possession. The police received a report that a vehicle was stopped at a light and that the driver was slumped over the steеring wheel. Officers responded, observed signs of intoxication, and administered field sobriety tests. When he failed the tests, the officers arrested the defendant for operating a vehicle while intoxicated (OVI) and took him to the police department, where a breathalyzer test was administered. He was then taken to jail, where a search of the jacket he was wearing turned up hеroin in a pocket. Id. at ¶ 4-7.
{¶ 15} The police cruiser had a dash camera that should have recorded the traffic stop, and the jail had cameras that should have recorded the search. Approximately three and a half months after the arrest, the defendant filed a motion to compel discovery and to preserve any videos. The State represented that it did not knоw whether the video had since been “taped over” but that it would “do everything it can in its power to do what it can to get the video.” Id. at ¶ 34. Apparently, no video was located and no evidence was presented that established why, though it appears that police department and jail retention policies were to blame.1 In addition to a motion to compel discovery, the
{¶ 16} We affirmed. The defendant claimed on appeal that his due-process rights were violated by the destruction of the videos, arguing that the video recordings were materially exculpatory and that the apparent destruction of them required the dismissal of the charges. The defendant argued that we should alter the burden of proof, saying that “the State should bear the burden of establishing that any destroyed evidence was not materially exculpatory, particularly when a defendant faced potential incarceration.” Id. at ¶ 25. We declined to do so. Because the burden of proof is mandated by Ohio Supreme Court and United States Supreme Court precedent, we found that, we “lack[ed] the authority” to alter it. Id. The majority was critical of the current law placing the burden on the defendant.2 Nevertheless, “under current law, the defendant bears the burden to
{¶ 17} In the present case, we are agаin invited to alter the burden of proof. Arnett says that here, unlike in McClain, there is no independent evidence that establishes his crime. The only other evidence of what happened was the testimony of those involved—the officers and Arnett. The unpreserved video, he argues, would have established conclusively whose version of the events was correct. In the trial court, says Arnett, the Statе simply said that it did not have the video, offering no real explanation, and trial counsel did not press for an explanation on the record, which made it all but impossible for him to bear the burden of proving that the missing evidence was either materially exculpatory or destroyed in bad faith.
{¶ 18} Once again, we decline the invitation to alter the burden of proving material exculpability оr bad faith, and we do so for the reason that we gave in McClain: “As an intermediate court of appeals, we lack the authority to alter the burden of proof mandated by Ohio Supreme Court and United States Supreme Court precedent.” Id. at ¶ 25, citing State v. Beavers, 2012-Ohio-6222, 986 N.E.2d 516, ¶ 26 (2d Dist.) (following high court precedent to reject shifting the burden to the State to establish the inculpatory nature of lost or destroyed evidence and rеjecting the position that “evidence that has been destroyed by the State may be treated as exculpatory, even though the exculpatory nature was not apparent prior to the evidence‘s destruction“).
{¶ 19} Arnett has not satisfied his burden to prove that the missing portion of the
{¶ 20} Arnett admits that he cannot prove that the missing portion of the video was materially exculpatory, because there was no evidence of what the video showed. As the Eighth District has said, “[g]enerally, missing videotape evidence that purports to contain images of an actual crime or event at issue speаks for itself. Simply put, such direct evidence is by its very nature either inculpatory or exculpatory, or some combination of the two, and there is likely no ‘test’ of that footage that would be necessary to yield a result that would exonerate the accused.” State v. Durham, 8th Dist. Cuyahoga No. 92681, 2010-Ohio-1416, ¶ 16. Here, no one disputes that the jail video cameras should have captured what happened, which means that thе missing video was either inculpatory—showed that Arnett assaulted Officer Kerrigan and spit at the officers—or exculpatory—showed that Arnett was assaulted by the officers and that he did not spit at them. (Alternatively, the video might show a combination of the two.) There was no evidence that anyone ever saw the missing video who could say which version of events it would have supported. While the video might have supported Arnett‘s version of events, it cannot be concluded that it would have shown a clear set of facts that supported either a dismissal or a limitation on the testimony about the events. Compare id. at ¶ 21 (concluding the same on very similar facts).
{¶ 21} Assuming that the missing video was potentially useful, there was no evidence that it was destroyed, or at least was unavailable, because of bad faith. There was no evidеnce that the officers, or anyone else, acted to destroy or hide the missing video. Indeed, we can find no explanation in the record, or even a hint, as to what
{¶ 22} Arnett asserts that he cannot satisfy his burden because trial counsel rendered ineffective assistance by failing to file a motion that would have forced the State to explain what happened at an evidentiary hearing. Based on the trial trаnscript, it is apparent that counsel knew that a portion of the video was not available. But there is nothing in the record to suggest that it was unavailable because of bad faith. As such, there is nothing in the record to indicate that the result would have been any different if such a motion had been filed.
{¶ 23} Another reasonable possibility, of course, is that trial counsel did not want the video of thе assault produced. It is conceivable that counsel believed the missing video would not help the defense of his client and might result in little chance of exoneration. In that case, not pursuing the video would have been a defensible strategic decision. At trial, counsel did forcefully argue that the State did not meet its burden of proof because the State did not produce the rеlevant video, and that therefore the jury should return a not guilty verdict. That could have been the best defense.
{¶ 25} Finаlly, as we indicated, resolving this matter in Arnett‘s favor would be purely speculative so it is not appropriate to consider his claim on direct appeal. The Ohio Supreme Court reached a similar conclusion about a similar ineffective assistance claim in State v. Madrigal, 87 Ohio St.3d 378, 721 N.E.2d 52 (2000). In that case, the defendant-appellant maintained that he was not the person who committed the crimе. Seeking to bolster that defense, defense counsel questioned witnesses about the fact that the defendant had facial hair when the crime was committed, but that no witness described the suspect as having facial hair. On appeal, the defendant argued that counsel was ineffective for not getting an expert to testify about the problems inherent in eyewitness identification, beсause if such an expert had testified, there was a reasonable probability that the outcome of the trial would have been different. In addition to concluding that counsel was not ineffective, the Court said that it was not appropriate to consider the claim on direct appeal:
[R]esolving this issue in [Defendant]‘s favor would be purely speculative. Nothing in the record indiсates what kind of testimony an eyewitness identification expert could have provided. Establishing that would require proof outside the record, such as affidavits demonstrating the probable testimony. Such a claim is not appropriately considered on a direct appeal. See State v. Keith (1997), 79 Ohio St.3d 514, 536, 684 N.E.2d 47, 67; State v. Scott (1989), 63 Ohio App.3d 304, 308, 578 N.E.2d 841, 844 (claim of failure to present mitigating evidence is properly considered in a post-conviction proceeding because evidence in support of claim could not be presented on direct appeal).
{¶ 26} Here, resolving the due-process issue in Arnett‘s favor would be purely speculative. Nothing in the record suggests what kind of testimony could have been provided about what happened to the missing portion of the video. This would require us to speculаte about what evidence might have been presented at a hearing and then to speculate about what the trial court might have found. To establish material exculpability or bad faith at this point, Arnett must present proof outside the record, such as affidavits describing probable testimony. Such evidence may not be considered on direct appeal.
III. Conclusion
{¶ 27} The sole assignment of error is overruled. The trial court‘s judgment is affirmed.
WELBAUM, P. J., concurs.
DONOVAN, J., concurs in judgment only.
Copies sent to:
Ryan Spitzer
Renee D. Busse
Hon. Christopher Gee