[Cite as State v. Reid, 2012-Ohio-1659.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :   C.A. CASE NO. 24672

vs.                                               :    T.C. CASE NO. 01CR1371

TYRONE REID                                        :   (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Appellant                        :

                                           . . . . . . . . .

                                            O P I N I O N

                    Rendered on the 13th day of April, 2012.

                                           . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Carley J. Ingram, Asst. Pros.
Attorney, Atty. Reg. No. 0020084, P.O. Box 972, Dayton, Oh 45422

        Attorney for Plaintiff-Appellee

Tyrone Reid, #438-902, P.O. Box 57, Marion, OH 43302
     Defendant-Appellant, Pro Se

                                           . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant Tyrone Reid appeals from a final order that

denied his motion filed pursuant to R.C. 149.43(B)(8) requesting

 the trial court to find that he is seeking information subject

to release as a public record and that the information sought is

necessary to support what appears to be a justiciable claim.
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     {¶ 2} In December 2002, a jury found Defendant guilty of the

murder of Cedron Brown.   In January 2003, the trial court sentenced

Defendant to eighteen years to life imprisonment.       We affirmed

Defendant’s conviction and sentence on direct appeal.       State v.

Reid, 2d Dist. Montgomery No. 19729, 2003-Ohio-6079.     Since then,

Defendant has filed numerous unsuccessful motions, post-conviction

actions and appeals, all in an effort to undo his conviction.

     {¶ 3} Defendant, an inmate at Marion Correctional Institute,

seeks information concerning the investigation and prosecution

of his criminal case that he believes may be contained in the records

and files of police agencies, the prosecutor’s office, or the court.

 On February 16, 2011, Defendant filed a motion asking the trial

court to find, pursuant to R.C. 149.43(B)(8), that certain records,

including all 911 calls made to Dayton police concerning his offense

and records concerning a particular vehicle contained in Dayton

police impound logs, are public records and are necessary to support

what appears to be a justiciable claim by Defendant.       The State

filed a memorandum contra Defendant’s motion.       The trial court

denied Defendant’s motion on May 4, 2011, finding that Defendant

does not have a justiciable claim because any claim he might present

would be barred by res judicata, and in any event Defendant has

not demonstrated how the records sought, even if they exist, would

aid his defense and are therefore necessary to support a justiciable

claim.
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       {¶ 4} Defendant appealed to this court from the trial court’s

decision denying his motion.



       FIRST ASSIGNMENT OF ERROR

       {¶ 5} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

 THE   APPELLANT’S   REQUEST      FOR   JUSTICIABLE     FINDING    AFTER   THE

PLAINTIFF ADMITTED THAT ITS OFFICE WAS IN POSSESSION OF 911 TAPE

RECORDINGS CONCERNING THIS CASE THAT IT NEVER TURNED OVER TO THE

APPELLANT.”

       THIRD ASSIGNMENT OF ERROR

       {¶ 6} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

THE APPELLANT’S REQUEST FOR JUSTICIABLE FINDING CONCERNING THE

VEHICLE DRIVEN BY WILLIAM THOMAS (VICTIM) AND THE APPELLANT WHICH

THE PLAINTIFF FOR TEN YEARS, INCLUDING AT TRIAL CLAIMED NEVER

EXISTED, ALTHOUGH THE POLICE REPORT SHOWS THE VEHICLE DID EXIST

AND THAT IT WAS IMPOUNDED BY THE DAYTON POLICE DEPARTMENT.”

       {¶ 7} Defendant   argues    that   the   trial   court     abused   its

discretion in not finding that the records he seeks are necessary

to support a justiciable claim.           Defendant additionally argues

that the State has admitted suppressing the recording of a 911

call made by Nettie Spidell.

       {¶ 8} A public office or person responsible for public records

is not required to permit a person who is incarcerated pursuant

to a criminal conviction to inspect or copy any public record
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concerning a criminal investigation or prosecution unless the

request to inspect or copy the record is for the purpose of acquiring

information that is subject to release as a public record and the

judge who imposed the sentence finds that the information sought

in the public record is necessary to support what appears to be

a justiciable claim.    R.C. 149.43(B)(8); State ex rel. Russell

v. Bican, 112 Ohio St.3d 559, 2007-Ohio-813, 862 N.E.2d 102.

     {¶ 9} In denying Defendant’s motion for a finding that the

public records Defendant seeks are necessary to support what

appears to be a justiciable claim by Defendant, the trial court

concluded that Defendant does not have a justiciable claim.       We

agree.    Since his conviction, Defendant has filed numerous

motions, post-conviction actions and appeals.         Defendant has

exhausted his available remedies and his conviction has become

final.   As a result, any claim for relief Defendant might present

is barred by res judicata.     State v. Perry, 10 Ohio St.2d 175,

226 N.E. 2d 104 (1967).    Claims barred by res judicata are not

justiciable.

     {¶ 10} While res judicata would not bar a post-appeal motion

for a new trial based upon newly discovered evidence,       State v.

Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, the

information Defendant seeks regarding recorded 911 calls to police

and the vehicle police impounded is not newly discovered, because

it was either provided to defense counsel at trial or referenced
                                                                      5

in police reports provided to defense counsel at trial.   See: Trial

Court’s Decision of August 6, 2007, overruling Defendant’s motion

for expert assistance; Trial Court’s Decision of May 4, 2011,

overruling Defendant’s motion for a finding of a justiciable claim

to support disclosure of public records.

      {¶ 11} With respect to the 911 calls police received after the

shooting that led to the deaths of Cedron Brown and William Thomas,

Defendant claims that the police report he attached to his motion

demonstrates that the State destroyed or suppressed a recorded

911 call made by Nettie Spidell.     The trial court found that no

such thing is demonstrated because the record demonstrates that,

prior to trial, Defendant was provided with all tape recorded 911

calls Dayton police had.      See: Trial Court’s August 6, 2007

Decision overruling Defendant’s motion for expert assistance.

Furthermore, the failure to preserve all of the 911 calls is hardly

sinister, because typically tapes of 911 calls are recycled

pursuant to Dayton Police Department policy after sixty days.

Id.   More importantly, there is no evidence that whatever Ms.

Spidell may have said when she called 911 would have exonerated

Defendant or aided his defense.   Therefore, Defendant has not shown

that the recordings of the 911 calls he seeks, if they exist, are

necessary to support a justiciable claim.      Defendant has failed

to satisfy his statutory duty under R.C. 149.43(B)(8).       Bican.

      {¶ 12} With respect to Defendant’s request that the trial court
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find that the records concerning a particular motor vehicle, which

Defendant believes are located in Dayton police impound logs, are

necessary to support a justiciable claim, Defendant has likewise

failed to show how these records, if they exist, would aid his

defense and support a justiciable claim.

     {¶ 13} Because Defendant has not demonstrated that he has a

justiciable claim or that the public records he seeks are necessary

to support that claim, the trial court did not abuse its discretion

when it overruled Defendant’s motion seeking a justiciable claim

finding pursuant to R.C. 149.43(B)(8).

     {¶ 14} Defendant’s first and third assignments of error are

overruled.

     SECOND ASSIGNMENT OF ERROR

     {¶ 15} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

THE APPELLANT’S REQUEST FOR JUSTICIABLE FINDING AFTER IT ENGAGED

IN EX PARTE COMMUNICATIONS AND ALLOWED THE PLAINTIFF TO DRAFT THE

TRIAL COURT’S OPINION.”

     {¶ 16} Defendant argues that the assistant prosecutor who wrote

the State’s memorandum contra Defendant’s motion requesting a

finding of a justiciable claim, also authored the trial court’s

May 4, 2011 decision denying Defendant’s motion.      No such thing

has been demonstrated on this record.   The mere fact that the trial

court found the State’s memorandum persuasive and incorporated

parts of it into the court’s decision does not demonstrate that
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the court engaged in ex parte communications with the prosecutor

about the court’s decision or allowed the prosecutor to write the

decision for the court.     State v. Roberts, 110 Ohio St.3d 71,

2006-Ohio-3665, 850 N.E. 2d 1168, is not applicable here.   A court

is not prohibited from adopting arguments and language contained

in a memorandum filed by one of the parties.

     {¶ 17} Defendant’s second assignment of error is overruled.

The judgment of the trial court will be affirmed.




FAIN, J., And FROELICH, J., concur.




Copies mailed to:

Carley J. Ingram, Esq.
Tyrone Reid
Hon. Timothy N. O’Connell
