COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66850 : CITY OF FAIRVIEW PARK : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JOHN J. RICOTTA : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 21, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Rocky River Municipal Court Case No. 93-TRC-11657A JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JAMES F. SHANNON, ESQ. PATRICK J. HOLLAND, ESQ. Prosecutor 608 TransOhio Tower 516 Standard Bldg. 2000 East 9th Street 1370 Ontario Street Suite 608 Cleveland, Ohio 44113 Cleveland, Ohio 44115 RICHARD G. LILLIE, ESQ. 55 Public Square Suite 1331 Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant John J. Ricotta, Esq. appeals from the denial of a motion for new trial following his bench trial conviction for operating a motor vehicle while under the influence of alcohol. Defendant maintains that he should be granted a new trial to present the original police videotape of his booking, despite the fact that he had, and failed to present at trial, a copy of the videotaped booking. Defendant was charged on October 2, 1993, with driving under the influence of alcohol in violation of R.C. 4511.19(A)(1) and disobeying a traffic control device in violation of Section 313.01 of the Fairview Park Codified Ordinances. Defendant's booking at the Fairview Park police station following his arrest was videotaped. During the course of discovery on November 4, 1993, defendant filed a Motion to Preserve Video Evidence in the Rocky River Municipal Court. Defendant's motion stated that on October 27, 1993, counsel reviewed a videotape made by the Fairview Park police at the station following defendant's arrest, but that the videotape was "inaudible and difficult to view." Defendant's motion requested an order directing the police to make a copy of the videotape so that defendant could more fully examine the contents of the videotape and could preserve the videotape for trial. In an order journalized the following day, the municipal court granted defendant's motion to preserve video evidence. - 3 - The matter proceeded to a bench trial on December 8, 1993. The prosecution presented testimony from the following two witnesses, viz., Fairview Park police officers Eric Upperman and Sergeant William Harrison. Patrolman Upperman testified that he observed defendant, while turning left from Mastick Road onto Brookpark Road eastbound, drive through a red light and proceed left of the center across the double yellow line on Brookpark Road. Patrolman Upperman activated the overhead lights on his police car and defendant pulled over to the side of the road. Upperman stated defendant fumbled through his wallet several times for approximately two minutes before ultimately producing his driver's license. Defendant told the patrolman he was preparing to go home to Westlake on Interstate-90, when, in fact, he was near Interstate-480 headed east. Defendant stated in response to questioning that he had a "couple of drinks" earlier in the evening at a Cleveland Indians baseball game. After requesting backup from Sergeant Harrison, Patrolman Upperman asked defendant to step out of his vehicle to perform a series of field sobriety tests. These tests at the scene were not videotaped. Concluding that defendant failed all six sobriety tests, Upperman placed him under arrest for operating his vehicle while he was under the influence of alcohol. The patrolman took defendant to the Fairview Park police station where defendant's booking was videotaped. Defendant refused to take a breathalyzer test or to perform the sobriety tests indoors on videotape a second time. Sergeant Harrison corroborated - 4 - Upperman's testimony concerning defendant's performance of the field sobriety tests at the scene of the traffic stop. Defendant presented testimony from the following three witnesses after the denial of his motion for judgment of acquittal, viz.: (1) Defendant's friend, attorney Robert Williams; (2) defendant's brother-in-law and neighbor, Damien Riedel; and (3) defendant. Williams testified that defendant, along with two other friends, joined him at the Cleveland Indians game and drank two beers. After the game at Hooters in the flats, the four shared a pitcher of beer and ate chicken wings. Riedel testified that when he picked up defendant at the police station after his arrest defendant did not appear intoxicated. Defendant testified that he drank two beers at the Indians game and two beers in the flats. Defendant stated he got lost after giving an acquaintance a ride and admitted driving through the red light. Defendant denied operating his motor vehicle while under the influence of alcohol. No videotape of defendant's booking at the Fairview Park police station on October 2, 1993, was presented or introduced into evidence at trial. Defense counsel commented on the absence of the booking videotape during closing argument (Tr. 170-171). The municipal court, sitting without a jury, found defendant guilty of driving under the influence of alcohol. Defendant subsequently filed his first motion for new trial on December 22, 1993. Defendant's first motion for new trial complained that he was deprived of evidence because of the lack - 5 - of clarity in the Fairview Park booking videotape shown and provided to the defense prior to trial (the "Pretrial Videotape Copy"). Defendant's motion was supported by an affidavit of defense co-counsel, attorney Mark Stanton, which stated that videotape experts determined the video portion of a booking videotape recording provided to defendant was damaged and the audio portion was incapable of enhancement. The trial court journalized defendant's conviction, denied his first motion for new trial and sentenced defendant as appears of record in an order journalized December 30, 1993. Defendant filed a timely notice of appeal. During the course of his appeal, defendant filed a motion in the court of appeals to remand the case to the municipal court to rule on a motion for new trial. A motion panel of this court granted defendant's motion and remanded the case to the municipal court in an order journalized July 27, 1994. Defendant's second motion for new trial filed in the municipal court on May 17, 1994, raised two additional arguments concerning the videotape of his booking by the Fairview Park police. Defendant argued (1) he had "newly discovered evidence" in the form of the original "viewable" videotape of his booking by the Fairview Park police department (the "Original Videotape"), and (2) prior to trial the police committed mis- conduct by showing and providing the defense with an "unviewable" copy of the videotaped booking (the Pretrial Videotape Copy). Defendant's second motion for new trial was supported by - 6 - affidavits from attorneys John Ghazoul and Robert Williams and videotape engineer Greg James. The prosecution filed a brief in opposition to defendant's second motion for new trial, and defendant filed a supplemental brief supported by an additional affidavit from engineer James. A successor judge denied defendant's second motion for new trial in a six-page typewritten journal entry/findings of fact and conclusions of law journalized October 31, 1994. The record on appeal has been supplemented with the Pretrial Videotape Copy and the Original Videotape presented to the municipal court prior to its ruling. Defendant's brief on appeal raises the following three related assignments of error: THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED UPON POLICE MISCONDUCT SINCE IT APPLIED THE STANDARD OF REVIEW APPLICABLE TO A MOTION FOR NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE. THE LOWER COURT ERRED IN ITS DETERMINATION THAT THE UNALTERED VERSION OF THE VIDEO TAPE CONTAINING DEFENDANTS [SIC] BOOKING PROCEDURE WAS NEITHER EXCULPATORY NOR THAT IT IMPEACHED TESTIMONY PROFERED [SIC] BY THE STATE AT TRIAL. THE LOWER COURT ERRED BY DENYING DEFENDANTS [SIC] MOTION FOR NEW TRIAL BASED UPON POLICE MISCONDUCT SINCE THE UNALTERED VERSION OF DEFENDANTS [SIC] BOOKING PROCEDURE WAS MATERIAL EVIDENCE WHICH CREATED SOME LIKLIHOOD [SIC] THAT THE OUTCOME AT TRIAL WOULD HAVE BEEN DIFFERENT. Defendant's three assignments of error lack merit. Defendant contends the municipal court improperly denied his "motion for new trial" because he was deliberately shown and given a poor copy of the booking videotape prior to trial (the Pretrial Videotape Copy) and did not discover the clearer - 7 - original videotape containing previously undisclosed exculpatory evidence (the Original Videotape) until after trial. Defendant's argument ignores the fact that he filed two motions for new trial concerning the booking videotaped by the police. Defendant's first motion for new trial argued defendant was deprived of exculpatory evidence because of a "technical error" which resulted in the lack of visual clarity in the Pretrial Videotape Copy. Defendant's first motion, filed on December 22, 1993, argued, without evidentiary support, that unnamed experts retained prior to his December 8th trial failed to review the videotape timely. Defense counsel submitted an affidavit that defendant retained new experts, including Greg James, who concluded the video was "damaged and useless" and the audio could not be enhanced. Defendant did not submit any videotape(s) to the municipal court for review and the same trial judge who presided over his trial denied defendant's first motion for new trial, in an order journalized December 30, 1993. Defendant's second motion for new trial, filed approximately five months thereafter on May 17, 1994, raised more sinister theories. Defendant claimed the Original Videotape, which he obtained after trial, was clear and that the police committed misconduct by showing and providing him with a poor copy of the booking videotape prior to trial (the Pretrial Videotape Copy). The affidavit of engineer Greg James submitted in support of the second motion stated that James was contacted after defendant's trial on December 13, 1993, and received the Original Videotape - 8 - from the police department on December 15, 1993, prior to the filing of defendant's first motion for new trial. The municipal judge who succeeded the original trial judge denied defendant's second motion for new trial in an order journalized on October 31, 1994. Defendant's brief on appeal does not challenge the denial of his first motion for new trial, but raises several arguments concerning the merits of the municipal court's denial of his second motion for new trial. Defendant's arguments are not well taken for three independent legally sufficient reasons. Untimeliness First, the record demonstrates defendant's second motion for new trial was not timely filed in accordance with Crim.R. 33(B). The municipal court announced its judgment of conviction in open court following defendant's trial on December 8, 1993, and journalized defendant's conviction and sentence on December 30, 1993. Crim.R. 33(B) requires that motions for new trial on the grounds of prosecution misconduct or newly discovered evidence be filed within fourteen (14) or one hundred twenty (120) days, respectively. Defendant's second motion for new trial was not filed in the municipal court until May 17, 1994, which is one hundred and thirty-eight (138) days after the municipal court journalized his conviction. The record demonstrates the municipal court did not journalize an order finding defendant was unavoidably prevented from timely filing his second motion for new trial to extend the time periods under Crim.R. 33(B). It is - 9 - well established that belated motions for new trial filed without prior leave of court may be denied as nullities. State v. Morgan (Dec. 31, 1992), Cuyahoga App. No. 63666, unreported at 4 (citing State v. Kiraly (1977), 56 Ohio App.2d 37, 51-52). Res Judicata Second, the municipal court was likewise warranted in denying defendant's second motion for new trial on res judicata grounds. The doctrine of res judicata is designed precisely to prevent the endless relitigation of issues that were or could have been raised in prior proceedings as in this case. The record demonstrates that all the facts giving rise to defendant's arguments in his second motion for new trial occurred before defendant filed his first motion for new trial on December 22, 1993. The arguments made in defendant's second motion should have been raised at that time. Defendant's expert received and viewed the Original Videotape on December 15, 1993, approximately one week after his trial and one week before filing his first motion for new trial. Defendant's first motion for new trial alleged the Pretrial Videotape Copy shown to the defense and received before trial was 1/ of poor quality due to a "technical error." Defendant's second motion for new trial, filed on May 17, 1994, approximately five and one-half months after the denial of his first motion, argued- -based on the same facts--that the Original Videotape constituted 1/ As noted above, defendant does not argue, and we do not find, that the original trial court abused its discretion by denying his first motion for new trial. - 10 - "newly discovered evidence" which had been concealed through "misconduct" of the state. The record unambiguously demonstrates that defendant knew the facts giving rise to these claims when he filed his first motion on December 22, 1993, and should not have waited to raise them until after the denial of his first motion for new trial. Merits Third, even if defendant's newly minted claims in his second motion for new trial were properly raised, defendant has failed to demonstrate the municipal court improperly rejected them. The Ohio Supreme Court has rejected defendant's principal argument that a successor judge lacks authority to rule on a motion for new trial when a different trial judge presided over the prior trial. See Elsnau v. Weigel (1983), 5 Ohio St.3d 77. Defendant has failed to demonstrate the municipal court erred or abused its discretion by denying his second motion for new trial. State v. Johnston (1988), 39 Ohio St.3d 48, 58-60. The municipal court properly rejected defendant's claim that the state committed misconduct in providing only a poor copy of the booking videotape. The only evidence offered to support this claim was that the defense was shown and given the poor Pretrial Videotape Copy and subsequently obtained the clear Original Videotape of the same events. A review of the two videotapes reveals, however, that they are identical in substance and that each videotape sufficiently depicts defendant's comportment while he was at the police station on October 2, 1993. Briefly stated, - 11 - defendant moved unusually slowly, but was not "falling over drunk." Contrary to defendant's argument, either videotape is sufficiently clear to be used as substantive evidence of defendant's condition or to impeach the testimony of the two police officers. The record does not support defendant's claim that the state withheld any material exculpatory evidence from him prior to trial. State v. Perry (1992), 80 Ohio App.3d 78, 84-86; State v. Yasin (Aug. 22, 1991), Franklin App. No. 90AP-535, unreported. Defendant elected not to present the "poor" Pretrial Videotape Copy at trial and the Original Videotape he subsequently obtained adds nothing of substance that was not already adequately revealed in the "poor" copy provided prior to trial. The municipal court specifically found "that the evidence on the [original] videotape would not create any probability - even a weak probability of a different result at trial." (Journal Entry at p. 5.) Under the circumstances, we agree that there is no reasonable probability that the result of defendant's bench trial would have been different if the Original Videotape had been disclosed to the defense prior to trial. Defendant received a fair trial, made a tactical decision not to show the Pretrial Videotape Copy, and the state did not withhold evidence to deprive him of a fair trial. Defendant has also failed to show the trial court abused its discretion by denying his second motion for new trial on the grounds of "newly discovered evidence." As noted above, the two - 12 - videotapes each sufficiently depict defendant's comportment while at the police station on October 2, 1993, for booking. Since defendant elected not to present the "poor" Pretrial Videotape Copy during his trial and the record demonstrates the Original Videotape does not contain any newly discovered evidence that would lead to a different result at trial, defendant's argument is much ado about nothing. Accordingly, defendant's three assignments of error are overruled. Judgment affirmed. - 13 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Rocky River Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J., and NAHRA, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and .