Criminal Appeal from Court of Common Pleas of Mahoning County, Ohio Case No. 09CR202A.
For Plaintiff-Appellant Paul Gains Prosecutor Nicholas A. Brevetta Assistant Prosecutor.
For Defendant-Appellee Attorney J. Gerald Ingram.
JUDGES: Hon. Gene Donofrio Hon. Joseph J. Vukovich Hon. Cheryl L. Waite.
(¶1} Plaintiff-appellant State of Ohio appeals the decision of the Mahoning County Common Pleas Court sustaining a motion to suppress physical evidence taken from defendant-appellee Ryan J. McGee.
(¶2} On February 21, 2009, at approximately 10:30 PM, a double shooting occurred at two houses across the street from one another at 945 and 946 Delaware on the north side of Youngstown, Ohio. Physical evidence in the form of shell casings and footprints in the snow indicated that a shootout had occurred between a group of people standing in front of 945 Delaware and people inside of 946 Delaware. A juvenile who was at 945 Delaware was shot and taken to the hospital. An adult, Melkanoe Bowman, who was inside 946 Delaware was shot and taken to the hospital where he later died from his injuries.
(¶3} Detective-Sergeant Daryl Martin became the lead investigator of the shooting and homicide. While there were no suspects at the scene, McGee and Keilan Clinkscale, both suffering from gunshot wounds, arrived at North Side Hospital shortly after the shooting occurred on Delaware. McGee and Clinkscale, who are cousins, claimed they had been shot on the south side of town, although police had not received any reports of a shooting on that side of town.
(¶4} Through his investigation, Det. Sgt. Martin learned that there was an ongoing feud between Clinkscale and the victim, Bowman. Det. Sgt. Martin arranged to have McGee transported to the police department upon his release from the hospital. The hospital released McGee later that night (beginning into the next day on February 22, 2009). Police took McGee's clothes and shoes, and while he was still dressed in a hospital gown, transported him directly to the police department for an interview. The interview began at 3:53 AM and the police performed a gunshot residue test on McGee. Apparently, McGee initially denied involvement in the north side shooting but then eventually gave a second version of events that implicated himself and Clinkscale. The interview ended at 5:06 AM at which time Det. Sgt. Martin formally placed McGee under arrest.
(¶5} On February 26, 2009, a Mahoning County grand jury indicted McGee and Clinkscale each on one count of murder in violation of R.C. 2903.02(B)(D), a life felony, and one count of improperly discharging a firearm at or into a habitation in violation of R.C. 2923.161(A)(1)(C), a second-degree felony. McGee retained counsel, pleaded not guilty, and his case proceeded to discovery and other pretrial matters.
(¶6} On September 24, 2009, McGee filed a motion to suppress any inculpatory statements he made to police when he was questioned. The trial court held a hearing on the motion on November 2, 2010, at which Det. Sgt. Martin was the sole testifying witness. On August 19, 2011, the trial court sustained the motion on two grounds. First, the trial court found that McGee was under arrest when the police transported him after his release from the hospital to the police department. While acknowledging that there was enough evidence to constitute reasonable suspicion to investigate further, the court found that there was not enough evidence to constitute probable cause to arrest McGee. Second, the court concluded that McGee's statement was not voluntary. After viewing a videotaped recording of the interview, the court reasoned that McGee's will had been overborne and his capacity for self-determination critically impaired. The propriety of this ruling was not contested by the state on appeal. See App.R. 5 (on seeking leave to appeal); R.C. 2945.67(A) (appeal by state).
(¶7} On April 12, 2012, McGee filed another motion to suppress, this time directed at the gunshot residue test and any evidence stemming from the police seizure of his clothes and shoes. The state did not respond to the motion. The trial court sustained the motion on June 27, 2012. This appeal followed.
(¶8} As pointed out by counsel for McGee, it should be noted at the outset that the state has failed to properly provide the November 2, 2010 transcript of proceedings of McGee's first suppression motion (inculpatory statements) upon which the trial court also based its decision on McGee's second suppression motion (physical evidence). A transcript is necessary because an appellant shoulders the burden of demonstrating error by reference to matters within the record. See State v. Skaggs, 53 Ohio St.2d 162, 163, 372 N.E.2d 1355 (1978).
(¶9} This principle is embodied in App.R. 9(B), which states in relevant part:
At the time of filing the notice of appeal the appellant, in writing, shall order from the reporter a complete transcript or a transcript of the parts of the proceedings not already on file as the appellant considers necessary for inclusion in the record and file a copy of the order with the clerk. * * * If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the weight of the evidence, the appellant shall include in the record a transcript of all evidence relevant to the findings or conclusion.
(¶10} A determination of whether the good faith exception applies in this case is a highly fact based determination. Thus, the transcript of this proceeding is imperative for our review. The Ohio Supreme Court has held, "when portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings and affirm." Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).
(¶11} On November 9, 2012, this court noted that a review of the docket had disclosed that no transcript of proceedings had yet to be filed and granted the state 30 days to file the transcript or face dismissal for want of prosecution. The state filed its merit brief on December 10, 2012. Attached to it is what appears to be a complete copy of the November 2, 2010 transcript of proceedings. The transcript contains the court reporter's certification, but is not file stamped.
(¶12} No transcript having yet been formally filed in the trial court or this court, on February 21, 2013, counsel for McGee filed a motion to dismiss this appeal on that basis. In general, appellate courts have held that attaching what appears to be a copy of a complete transcript of the proceedings to the appellant's brief is not sufficient to make the purported transcript part of the appellate record if it lacks a file stamp. State v. Alford, 3rd Dist. Nos. 13-94-43 & 13-94-44, 1995 WL 363751 (June 2, 1995); State v. Johnson, 8th Dist. Nos. 63499, 63500, 63501, 1993 WL 335446 (Sept. 2, 1993); but see In Matter of Mental Illness of White, 9th Dist. No. 17325, 1996 WL 48524 (Feb. 7, 1996) (accepting a photocopy of a transcript attached to appellant's brief despite not being filed with the court in accordance with App.R. 9 in a civil case reviewing manifest weight of the evidence).
(¶13} In this instance, while the state has attached what appears to be a complete copy of the November 2, 2010 transcript of proceedings to its merit brief, it has not separately filed the transcript in accordance with App.R. 9. Therefore, the transcript is not properly part of the appellate record before this court. The state's failure to properly file the transcript is not by itself a sufficient ground upon which to dismiss the appeal. However, as indicated, absent the transcript upon which the state relies in support of its assignment of error, this court has nothing to pass upon and thus, as to that assigned error, this court has no choice but to presume the validity of the trial court's proceedings and affirm.
(¶14} Nevertheless, even if we were to consider the transcript attached to the state's appellate brief, we would still affirm the trial court's decision concerning McGee's second motion to suppress. The state's sole assignment of error states:
THE TRIAL COURT SHOULD HAVE DENIED APPELLANT'S MOTION TO SUPPRESS, BECAUSE THE EVIDENCE WAS NOT DISCOVERED THROUGH PRIOR SUPPRESSED STATEMENTS. RATHER, THE EVIDENCE WAS DISCOVERED THROUGH THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE.
(¶15} "Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d 539." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8.
(¶16} Without much explanation, the state argues that when McGee offered up his second version of events implicating himself and Clinkscale in the shooting, the good faith exception applied to allow ...