State v. Daniels

437 N.E.2d 1186, 1 Ohio St. 3d 69

• Court: Ohio Supreme Court
• Decided: July 21, 1982
• Docket: No. 81-1815
• Status: Published

Opinions

Celebrezze, C.J.

The focal point of this case is the following pertinent language of Crim. R. 16 (B)(1)(g):

“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.” (Emphasis added.) See, also, State v. White (1968), 15 Ohio St. 2d 146 [44 O.O.2d 132].

Appellant contends that the phrase “present and participating” means that defense counsel must be physically present at the judge’s in camera inspection and be afforded the opportunity to review the statement personally for perceived inconsistencies. Appellant argues that this procedure is required because the prosecuting attorney and defense counsel “have spent hours examining the evidence and preparing witness, they alone can understand the nuances among an omission, an inconsistency anda misstatement.”

Appellee, on the other hand, submits that Crim. R. 16 (B)(1)(g) merely requires that defense counsel be present and available for consultation with the trial court during the in camera inspection of the witness’ statement.

As defined in Webster’s Third New International Dictionary, “participate” has a straightforward, unambiguous meaning: “to take part in something (as an enterprise or activity) usually in common with others.” See, also, Martin v. Mutual Life Ins. Co. of New York (1934), 189 Ark. 291, 71 S.W. 2d 694 (participate “means to take part in” and connotes to the average person the meaning and effect of “engaged in” rather than mere presence).

We construe Crim. R. 16 (B)(1)(g) to mean that, once the trial court independently determines that a producible out-of-court witness statement exists, attorneys for all parties must be given the opportunity to inspect-the statement personally. The trial court’s simply permitting the attorneys to be passively present and available for consultation during the in camera inspection constitutes reversible error.

This procedure will ensure meaningful participation by all attorneys in reviewing the statement and will assist the trial court in evaluating whether there are inconsistencies between the testimony of such witness and the prior statement. As the court noted in Columbus v. Bee, supra, at 78: “An advocate is frequently in a better position than the court to spot inconsistencies, being much more familiar with the entire case. Thus, the advocate is able to intelligently argue that matter prior to the court’s ruling.”

Furthermore, as the Court of Appeals in the case sub judice keenly observed: “We understand this language to intend that the defense lawyer shall have the right to call to the attention of the court any inconsistencies existing between the testimony of the witness and his statement. Any lesser procedure would deprive the court of any suggestions of counsel for the defendant with respect to the substantiality of inconsistencies. Otherwise, in most instances, the trial court would be required to depend on his own recollection of the complete testimony of the witness in hindsight. Understandably, the court could fail to recall’portions of that testimony. Although it may be argued the court may have the luxury of a court reporter rereading to him all or part of the testimony of the witness, this is not practicable nor does it afford defense counsel an opportunity to truly participate in the court’s decision as to inconsistencies. Such a result is not contemplated by the rule itself or the adversary procedure in general.”

Therefore, we conclude that, under the facts at bar, the trial court's failure to afford defense counsel the opportunity to inspect the witness’ statement personally and call to the court’s attention any perceived inconsistencies constitutes reversible error per sc.³

Accordingly, for all the foregoing reasons, the judgment of the Court of Appeals is reversed.

Judgment reversed.

W. Brown, Sweeney and C. Brown, JJ., concur. Holmes, J., concurs in part and dissents in part. Locher and Krupansky, JJ., dissent.

3 We concur with the Court of Appeals’ conclusion that the trial court’s failure to furnish defense counsel with the statement was not harmless error. We have reviewed the pretrial statement and the in-court testimony of Gregory Wilson and find that there are inconsistencies pertaining to Wilson’s observations and recollection of the events which transpired on August 19-20, 1979.