The Second District held that a trial court erred in requiring a defendant to disclose an investigator’s report that included incriminating information.

The Second District held that a trial court erred in requiring a defendant to disclose an investigator’s report that included incriminating information.

In a decision that overturned the conviction of  a Dayton man for felonious assault, the Second District Court of Appeals held that Ohio evidence rules barred a trial court from ordering the defendant to disclose to prosecutors incriminating information contained in a report prepared by the defendant’s investigator.

In a 2-1 decision announced October 19, the court of appeals ordered that defendant Gary Crews receive a new trial based on an improper discovery order in which the trial judge compelled Crews’ attorney to disclose to the state information damaging to Crews’ defense
that was  obtained during interviews of prospective defense witnesses by an investigator working for defense counsel.

Crews was charged with felonious assault for allegedly beating Amanda Hatfield, an estranged former girlfriend, after learning that Hatfield had begun a relationship with another man.  In the course of preparing a defense, Crews’ attorney hired an investigator who interviewed Isaac Black and Cindy Dant, friends of Crews who witnessed the beginning of the incident that led to the assault charge.  The investigator, Pat Tannreuther, prepared and delivered a report recounting Black and Dant’s description of the incident to defense counsel. Black and Dant were subsequently included on the list of defense witnesses Crews’ attorney provided to the court and the prosecutor.

During a meeting in the judge’s chambers on the second day of Crews’ trial, before Black or Dant had testified,  the prosecutor asked defense counsel to disclose Tannreuther’s report of her interviews with Black and Dant, asserting that the report was subject to disclosure under  the “reciprocal discovery rule” set forth in Ohio Criminal Rule 16.  Defense counsel objected, arguing that the investigator’s report was exempt from disclosure both as legal work product and because it included information that would be damaging to Crews’ defense.

The judge ordered Tannreuther to submit to an interview with the prosecutor regarding the statements Black and Dant had made to her, and also granted the state’s request to call Tannreuther as a rebuttal witness to challenge any trial testimony by Black or Dant that was inconsistent with their earlier statements to Tannreuther. In its cross examination of Dant after she testified for the defense, the state made repeated references to statements she had made during her pretrial interview with Tannreuther that were inconsistent with her trial testimony. The state then called Tannreuther as a rebuttal witness, and elicited testimony in which she affirmed that during the pretrial interview Dant had specifically described Crews as  “choking” Hatfield, and had otherwise described Crews’ actions in a different and more incriminating manner than she had in her trial testimony. 

The jury found Crews guilty of felonious assault and the court sentenced him to five years in prison.

Crews appealed, asserting among other claims that the trial court erred by ordering disclosure of the contents of Tannreuther’s interviews with Black and Dant because her report to defense counsel was exempt from discovery as legal work product, and because the report contained incriminating  information. 

In a majority opinion written by Judge Mike Fain and joined by Judge Mary E. Donovan, the court of appeals agreed that the trial court committed reversible error by requiring Crews to disclose incriminating information included in the defense investigator’s report.  Judge Fain cited language in Evid.R. 16(H)(3) that specifically excludes from a defendant’s disclosure requirements “information that would tend to incriminate (the) defendant.”

He wrote: “The language regarding disclosure of incriminating information in (H)(3) applies to each section of Crim.R.16, including (A): ‘All duties and remedies are subject to a standard of due diligence, apply to the defense and the prosecution equally, and are intended to be reciprocal.’  This section cannot be construed in a way that would require a defendant to disclose information that would tend to incriminate the defendant. Crim.R.16(H)(3) also uses the broadly inclusive word ‘information’ in the phrase: ‘ ... information that would tend to incriminate that defendant.’ This demonstrates that the sentence applies to information, in any form, that has a tendency to incriminate the defendant. The statements of the witnesses Black and Dant fall within the broad concept of ‘information,’ as used in the Rule.”

“Crim.R.16 does not require the same burdens of production on both the State and the defendant in a criminal proceeding. Subsection (H)(3) states, ‘... nothing in this rule shall be construed to require the defendant to disclose information that would tend to incriminate that defendant.’ This echoes the language both of the Fifth Amendment to the United States Constitution. ... Asymmetrically, the State has a constitutional duty to produce evidence tending to exculpate a defendant.”

Judge Michael T. Hall entered a dissent in which he disagreed with the majority’s conclusion that the exclusion from reciprocal discovery of “incriminating information” set forth in Crim.R. 16(H)(3) is meant to apply to all provisions of Rule 16.  But even if that interpretation is correct, Judge Hall indicated that he didn’t believe that the use of the term “information” in the rule was meant to preclude  disclosure of a prior written or recorded statement of a witness who is called by the defense.

Judge Hall wrote: “If (a) witness has made a prior statement to the defense, I believe that complete statement, including incriminating parts, is discoverable under Crim. R. (H)(4) & (5).”

State v. Crews, 2012-Ohio-4854
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2012/2012-ohio-4854.pdf
Civil Appeal From: Montgomery County court of Common Pleas
Judgment Appealed From Is:  Reversed and Remanded
Date of Judgment Entry on Appeal: October 19, 2012

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