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State v. Adams6/30/2004
sed the aggravated arson charge and finally granted judgment notwithstanding the verdict by reducing the aggravated murder charge to murder.
. However, the point remains that if the defense had been able to recognize and further pursue certain items which were not produced until immediately prior to trial and were buried in a mountain of late discovery, it is entirely possible that appellant may have been acquitted entirely. Therefore, appellant was prejudiced by the untimely submission of voluminous discovery evidence.
. This prejudice is further magnified by the fact that there was a very viable alternative suspect in this case. He was apparently eliminated by virtue of two reasons, he claimed an alibi and, ultimately, the DNA evidence linked appellant to sexual conduct with the victim. Due to the untimely discovery, defense counsel had little to no opportunity to pursue the buried evidence that appeared to not only challenge, but to contradict this alternative suspect's alibi evidence as well as evidence of additional, but unidentifiable semen DNA.
. That being said, the record demonstrates that the court offered defense counsel a continuance at one point to allow for the examination of the felony records of the state's witnesses. Although defense counsel rejected this specific continuance, such refusal should not be viewed as a general waiver of objection to all of the late evidence.
. To further complicate this case, appellant had a record of other violent offenses. Subconsciously that reverberates, as even the majority felt it was relevant to include a footnote that appellant was simultaneously being prosecuted in connection with two other unrelated murders. Unfortunately, for our legal system to work, it has to work for the bad guys too.
. Returning to the specific issues addressed under the first assignment of error, the majority essentially holds that appellant has failed to demonstrate that the state committed a prejudicial discovery violation as all the discovery appeared to have been made before trial. As previously indicated, I respectfully disagree.
. While all discovery may have been provided, significant amounts were not made available until after voir dire had begun on October 13, 2000. The record reflects that opening statements were made on October 30, 2000. I quote from the trial court's entry denying the motion for a new trial to reinforce my belief that the state was prejudicially late in providing discovery:
. "This Court in attempting to ensure a fair trial to both the State of Ohio and the Defendant, Stanley Adams, has listened to Defendant constantly ask for the delivery of Rule 16 material that was parceled out beginning on October 8, again on October 9, on October 11, October 16, and October 29, 2000. This Court on at least one occasion had to order the State to make delivery of previously promised discovery.
. "Needless to say, one of the fundamental principles of a fair trial is to follow the rules of discovery promulgated by our legislature. *
. " *
. " * The appellate court upon review will correct any problem if it finds merit in Defendant's contentions."
. A specific example of one of the late submissions is a copy of a hospital report faxed to the prosecutor's office from the Hubbard Police Department on October 20, 2000. This report was part of the voluminous discovery turned over just prior to trial. The possibility is also raised that the prosecution was aware of this report well before the fax transmission date of October 20, 2000. There are time stamps on all pages of the report indicating that these copies were made
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