Photographs and Recordings

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

Last updated 3/1/2016
 
State v. Salaam, 1st Dist. Hamilton No. C-150092, C-150099, 2015-Ohio-4552
 
Where the state had recordings of defendant's jail telephone conversations with the victim of his domestic violence and could have admitted them into evidence, but failed to properly authenticate them, the trial court erred in allowing the police officer to testify about the content of the recordings, because the original recordings were required under Evid.R. 1002 to prove the contents of the jail telephone conversations. Court ruled, however, that error was harmless because record contains other evidence sufficient to establish guilt.
 
State v. Geeslin, 116 Ohio St. 3d 252, 2007-Ohio-5239 – Highway Patrol officer accidentally (?) erased portion of videotape from cruiser which showed defendant‘s driving that provided claimed basis for the stop. Trial court dismissed charges. Syllabus: "Unless a defendant can show that the state acted in bad faith, the state‘s failure to preserve potentially useful evidence does not violate a defendant‘s due process rights. (Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 51, 102 L.Ed.2d 281, followed.)" Court is of the view that the erased portion would only have been used to challenge the justification for the stop. Portions showing field sobriety testing were still available. Dissent notes the officer watched the tape on his home VCR.
 
State v. Were, 118 Ohio St. 3d 448, 2008-Ohio-2762, ¶108-117 – Court reporter was unable to prepare a transcript of often unintelligible tapes so the state allowed the state to use transcripts of "tunnel tapes" prepared by those investigating the Lucasville riots. Defense failed to demonstrate inaccuracies. Hearsay objection sidestepped by reference to the co-conspirator exception to the hearsay rule.
 
State v. Spradlin, 187 Ohio App. 3d 767, 2010-Ohio-2140 – Admission of a photo of the defendant and others holding up large amounts of money, suggesting she was a player, or wanted to be one, in the gangsta lifestyle found to be reversible error in a bench trial of a drug case,.
 
State v. Gilliam, 192 Ohio App. 3d 145, 2011-Ohio-26 – In rebuttal the state played a video recording of the drug buy to refute the defendant’s claim of entrapment. This came from a camera concealed as a pen. State did not authenticate the recording pursuant to Evid. R. 901(B)(1), through the testimony of the informant making he buy. But it did offer the testimony of two people said to be familiar with the defendant’s voice. Because the defendant failed to further object on the basis of Evid. R. 901(B)(5), claim of error under that provision is forfeited, except for plain error, which was not demonstrated.
 
State v. Tibbetts 92 Ohio St. 3d 146, 159-160, 2001-Ohio-132 -- No error in admission of an excerpt from a surveillance camera videotape. The person who prepared the dubbed tape did not testify, but both the owner of the business using the camera and a police officer testified to the authenticity of both the original 24-hour tape and the two-minute excerpt on the copy.
 
State v. Bowshier, 167 Ohio App. 3d 87, 2006-Ohio-2822, ¶80 -- "In our view Evid.R. 901 does not require that a witness identifying a voice must have heard that voice in the same medium in order to identify it...The circumstances of the witness's having previously heard the voice...affect(s) the weight to be given to the witness's testimony."
 
State v. Cowell, Montgomery App. No. C.A. 19119, 2002-Ohio-5126 -- Videotape from cruiser deemed not to establish probable cause to arrest the defendant for D.U.I.: In our review of the videotape, we do not suffer from the same disadvantage that appellate courts often suffer in considering evidence. When evidence is in the form of testimony, the finder of fact is at an advantage, having seen and heard the witnesses testify. With respect to the videotape, however, both we and the trial court have had exactly the same perceptual experience."
 
State v. Benton (2000), 136 Ohio App. 3d 801 -- Knowing that the Highway Patrol video and audiotapes all stops, defense sought tapes through discovery. Tapes are retained for a while, but are eventually recycled, and apparently had been reused by the time of trial. Failure to preserve tapes in light of the discovery motion required dismissal. Arizona v. Youngblood (1988), 486 U.S. 51, California v. Trombetta (1984), 467 U.S. 479 and Columbus v. Forest (1987), 36 Ohio App. 3d 169, followed. Also see State v. Williams, 126 Ohio Misc. 2d 47, 2003-Ohio-7294.
 
State v. Wolf, 154 Ohio App. 3d 293, 2003-Ohio-4885 -- Accidental destruction of tape from cruiser mounted camera was not a violation of due process. After the first pretrial it was ascertained that after the tape had been shown to other officers it was rewound to the beginning and placed back in the cruiser.
 
State v. Acosta, Hamilton App. Nos. C-020767 through C-020771, 2003-Ohio-6503 -- K-mart reused surveillance tapes after being told by the prosecutor there would be a plea. Defense failed to file a motion that the tapes be preserved. Mistakes not arising to bad faith do not deny due process rights.
 
Broadview Heights v. Baron (2000), 139 Ohio App. 3d 729, 743-745 -- Abuse of discretion found in not allowing defense counsel to inquire as to disputed authenticity of 911 tapes.
 
State v. Thomas, Mahoning App. No. 01-CA-100, 2003-Ohio-4004 -- Overnight, defense counsel took photos of apartment building intended to refute prosecution claim no trespassing signs were posted. Photos erroneously excluded. Whether or not they were posted at the time of the offense was a jury matter. Judge's uncertainty was not a basis for exclusion.
 
State v. Morris, Wayne App. No. 04CA0036, 2005-Ohio-599 -- No due process violation found in wiping hard drive on which kiddie porn was found before returning it to the defendant's son. The son was the owner of the computer and had reported his father to the police after finding images in the recycle bin. Encase, Version 3 had been used to copy the contents to make a replica for forensic use.
 
State v. Smith, 162 Ohio App. 3d 208, 2005-Ohio-3579 -- Applying Crawford v. Washington (2004), 124 S.Ct. 1354, admission of a taped conversation between the defendant and an informant in furtherance of a drug transaction did not violate the right to confrontation. The informant did not testify. His end of the taped conversation was not admitted for the truth of the matter asserted. It only provided the context for the defendant's statements received as admissions.
 
State v. Conway, 109 Ohio St. 3d 412. 2006-Ohio-2815, ¶85-91 -- Family photos offered as exhibits at the penalty phase of a capital trial were erroneously excluded as exhibits.
 
State v. McFadden (1982), 7 Ohio App. 3d 215, 216 -- "Photographs are admissible into evidence as long as they are properly identified, are relevant and competent, and are accurate representations of the scene which they purport to portray." Also see Heldman v. Uniroyal, Inc. (1977), 53 Ohio App. 2d 21, 31; State v. Howell (October 20, 1981), Franklin Co. App. No. 81AP-315, unreported (1981 Opinions 3229, 3233); Cincinnati, Hamilton & Dayton Railway Co. v. DeOnzo (1912), 87 Ohio St. 109."
 
State v. Woodards (1966), 6 Ohio St. 2d 14, 25 -- "Although a photograph may be rendered inadmissible by its inflammatory nature, the mere fact that it is gruesome or horrendous is not sufficient to render it inadmissible if the trial court, in the exercise of its discretion, feels that it would prove useful to the jury...The real question is whether the probative value of such photographs is outweighed by the danger of unfair prejudice to the defendant." Also see State v. Hill (1967), 12 Ohio St. 2d 88, 90; State v. Wilson (1972), 30 Ohio St. 2d 199, 203-204 (autopsy photos).
 
State v. Maurer (1985), 15 Ohio St. 3d 239 -- (1) Paragraph seven of the syllabus: "Properly authenticated photographs, even if gruesome, are admissible in a capital prosecution if relevant and of probative value in assisting the trier of fact to determine the issues or are illustrative of testimony and other evidence, as long as the danger of material prejudice to a defendant is outweighed by their probative value and the photographs are not repetitive or cumulative in nature." (2) At 264-266: Stipulation of the cause of death does not automatically render photographs of the victim inadmissible. If the pictures have probative value concerning issues in dispute beyond the content of the stipulation, they may be admitted if their relevancy and probative value outweighs the danger of unfair prejudice to the defendant.
 
State v. Morales (1987), 32 Ohio St. 3d 252 -- At page 258, explaining State v. Maurer: "Thus the emphasis that a trial judge must apply in meeting an Evid. R. 403 objection has changed in capital cases. To be admissible in a capital case, the probative value of each photograph must outweigh the danger of prejudice to the defendant and, additionally, not be repetitive or cumulative in nature. Contrary to the Evid. R. 403 standard, where the probative value must be minimal and the prejudice great before the evidence may be excluded, pursuant to Maurer...if the probative value does not, in a simple balancing of the relative values, outweigh the danger of prejudice to the defendant, the evidence must be excluded." For other cases on gruesome photos see State v. DePew (1988), 38 Ohio St. 3d 275, 281-283; State v. Landrum (1990), 53 Ohio St. 3d 107, 121; State v. Roe (1989), 41 Ohio St. 3d 18, 22-23; State v. Heinish (1990), 50 Ohio St. 3d 321; State v. Moreland (1990), 50 Ohio St. 3d 58; State v. Apanovitch (1987), 33 Ohio St. 3d 394; State v. Rahman (1986), 23 Ohio St. 3d 401; State v. Wilson (1996), 74 Ohio St. 3d 381, 391.
 
State v. Lundgren (1995), 73 Ohio St. 3d 474, 485-486 -- Admission of repetitive autopsy photos was erroneous. Admission of remaining photos and further photos and videotape of exhumation was erroneous as probative value was outweighed by prejudicial effect, but error was harmless.
 
State v. Keenan (1993), 66 Ohio St. 3d 402, 407 -- "Although gruesome photographs may be admissible in a capital case, the state may not use them 'to appeal to the jurors' emotions and to prejudice them against the defendant.'" Also see State v. Thompson (1987), 33 Ohio St. 3d 1, 15; State v. Benner (1988), 40 Ohio St. 3d 301, 311.
 
State v. Biros (1997), 78 Ohio St. 3d 426, 443-446 -- Gruesome photos were properly admitted, as they related to contested factual issues, and had been suitably reduced in number upon review by the judge.
 
State v. Crimi (1995), 106 Ohio App. 3d 13 -- Defendant was convicted of felonious assault and fleeing arising from a high speed chase. Later portions of the chase were captured by a camera in a cruiser for use on the TV show "COPS." Tape was properly admitted as a joint exhibit, but court only allowed it to be played once, without stopping. Held to be an abuse of discretion not to allow defense counsel to use tape during cross-examination of state's witnesses. Further held to be an abuse of discretion not to furnish tape to jury during deliberations in response to a question.
 
State v. Nobles (1995), 106 Ohio App. 3d 246, 276-278 -- Videotape of mother and child opening Christmas presents the day before she allegedly drowned him should have been admitted to show she was a loving happy mother and not the callous murderess the state represented her to be.
 
State v. Paxton (1995), 110 Ohio App. 3d 305 -- Videotape was played for jury while the judge was out of the courtroom. Audio portion contained narrative beyond scope of present sense impression. Much was inadmissible hearsay and should have been largely excluded. Curative instruction was insufficient. Mistrial should have been declared.
 
State v. Brooks (1995), 101 Ohio App. 3d 260, 263-264 -- Crime scene photos were properly admitted upon testimony of an officer present at the scene that they were fair and accurate representations, even though photographer was unidentified.
 
State v. Hart (1994), 94 Ohio App. 3d 665 -- It was improper for the prosecutor to brandish photos of the insect infested body of the victim and ask the jurors to use their "God given common sense" to conclude how long "it took for this (woman) to become this."
 
State v. Soke (1995), 105 Ohio App. 3d 226, 252-253 -- Court sidesteps claim that anniversary photo of victims was victim impact evidence, improperly admitted at guilt phase of a capital trial, by concluding brief reference to photo was nonprejudicial.
 

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Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
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