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State v. Adams6/30/2004
ng before trial, and the trial court found the allegations of discovery violations sufficiently credible to order that the prosecution's file be sealed for availability of appellate review.
. A motion for a new trial is governed by Crim.R. 33, which states in pertinent part:
. "(A) Grounds
. "A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights:
. "(1) Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial;
. "(2) Misconduct of the jury, prosecuting attorney, or the witnesses for the state;
. "(3) Accident or surprise which ordinary prudence could not have guarded against *."
. As the court stated in State v. Schiebel (1990), 55 Ohio St.3d 71, paragraph one of the syllabus, " motion for new trial pursuant to Crim.R. 33(B) is addressed to the sound discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion." See, also, State v. Nahhas (Mar. 16, 2001), 11th Dist. No. 99-T-0179, 2001 Ohio App. LEXIS 1236, at 8. "No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court * unless it affirmatively appears from the record that the defendant was prejudiced thereby or was prevented from having a fair trial." Crim.R. 33(E)(5). "The test for prosecutorial misconduct is whether the conduct complained of deprived the defendant of a fair trial." State v. Fears (1999), 86 Ohio St.3d 329, 332, citing State v. Apanovitch (1987), 33 Ohio St.3d 19, 24.
. A trial court need not conduct an in camera inspection of the prosecutor's file or order the file to be sealed for appellate review any time the appellant so requests. State v. Alexander (Nov. 29, 1996), 11th Dist. No. 93-T-4948, 1996 Ohio App. LEXIS 5418, at 11. An in camera inspection is not required when an appellant makes a general request for Brady material. State v. Lawson (1992), 64 Ohio St.3d 336, 344. Thus, there is also no requirement that the prosecutor's file be sealed for appellate review simply because an appellant makes a general discovery request for exculpatory material. Alexander at 13.
. In the case at bar, prior to trial, appellant filed numerous motions seeking to insure that the state complied with the discovery requirements of Brady v. Maryland (1963), 373 U.S. 83. In particular, on March 30, 2000, appellant filed a motion for an order directing that a complete copy of the prosecutor's file be made and turned over to the court for review and be sealed for appellate review, if necessary. This motion was ultimately granted, even though appellant's request was general in that it directed that a complete copy of the prosecutor's whole file, rather than something specific within the file, be sealed for appellate review. See Pennsylvania v. Ritchie (1987), 480 U.S. 39, 46.
. Nevertheless, in the interest of justice, this court complied with the trial court's request and reviewed the prosecutor's sealed file. After oral arguments, we permitted both appellant's counsel and an assistant prosecutor to review the file. Subsequently, appellant's counsel contended that three documents had not been provided to appellant prior to trial. This court then allowed both sides to submit supplemental briefing. According to appellant, the three documents contain two important pieces of information. Appellant argues that the documents show that two days after the murder, David was seen burning a blue blanket in a fire behind his house. A
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