[Cite as State v. McGuire, 2018-Ohio-1390.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105732



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                     DAVID McGUIRE
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-604957-A

        BEFORE:          McCormack, P.J., Jones, J., and Keough, J.

        RELEASED AND JOURNALIZED: April 12, 2018
ATTORNEYS FOR APPELLANT

Jon W. Oebker
Zachary J. Adams
John Q. Lewis
Tucker Ellis L.L.P.
950 Main Avenue, Suite 1100
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Mahmoud S. Awadallah
Shannon M. Musson
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, P.J.:

       {¶1}    Defendant-appellant David McGuire (“McGuire”) appeals from his

convictions following a jury trial. For the reasons that follow, we affirm.

Procedural and Substantive History

       {¶2} On March 16, 2016, between 7:00 p.m. and 8:00 p.m., McGuire and his

cousin Mac McGuire (“Mac”) were arguing outside of McGuire’s home at 1237 East

146th Street in East Cleveland.

       {¶3} Mac was sitting in the passenger seat of a car that was backed into the

driveway with the door open.       McGuire went upstairs to his third floor apartment,

retrieved a gun, returned to the driveway and fired four shots into Mac’s legs and groin.

       {¶4} Sultan Muhammad, who was renting the second-floor apartment from

McGuire, witnessed the incident from a second-floor window and instructed his

girlfriend, Kristen Angel, to call 911. Angel did so, and two East Cleveland police

officers responded to the scene, but not before McGuire fled the scene.            Medical

personnel also responded to the scene and transported Mac to the hospital, where he died

as a result of gunshot wounds.

       {¶5} Responding officer Kenneth Bolton secured the scene, and Officer Elshawn

Williams spoke to Muhammad, Angel, and a neighbor who had heard gunshots and saw

McGuire standing near the car with his hands on his head several minutes later.

       {¶6} McGuire was arrested on March 28, 2016. On April 12, 2016, a Cuyahoga

County grand jury indicted McGuire on Count 1, aggravated murder in violation of R.C.
2903.01(A); Count 2, murder in violation of R.C. 2903.02(B); Count 3, felonious assault

in violation of R.C. 2903.11(A)(1); and Count 4, having weapons while under disability

in violation of R.C. 2923.13(A)(3).         Counts 1 through 3 each carried one-year and

three-year firearm specifications pursuant to R.C. 2941.141(A) and 2941.145(A).

       {¶7} McGuire pleaded not guilty to all four counts. A jury trial began on March

28, 2017.   During the trial, it became apparent during the defense’s cross-examination of

Officer Williams, one of the responding officers, that he had been wearing a body camera

at the time he responded to the incident.

       {¶8} Upon learning this information, McGuire’s counsel discussed making an

oral motion for mistrial based on two alleged Brady violations by the state. The court

noted that a complete record on the issue of body camera evidence had not been

developed, and it declined to consider such a motion at that time.

       {¶9} At a later point in trial, defense counsel discovered that Officer Bolton, the

responding officer who was the first to arrive at the scene, was being investigated for a

separate incident involving misconduct during a traffic stop. Upon discovering this,

defense counsel made an oral motion for mistrial, based on both the body camera

evidence and the investigation into Officer Bolton.    First, McGuire asserted that the state

violated his rights by failing to turn over any information regarding an unrelated

investigation into Officer Bolton.    The East Cleveland Police Department terminated

Officer Bolton, and he was subsequently — after the trial in this case — indicted and

pleaded guilty to gross sexual imposition and interfering with civil rights. Second,
McGuire asserted that the state violated his rights by failing to turn over any body camera

evidence related to this incident.    While there was uncontroverted testimony that the

responding officers, including Bolton, were wearing body cameras when they responded

to the crime scene, the state did not turn over any of the body camera footage, and the

record reveals that the East Cleveland Police Department either lost or destroyed any

body camera evidence that had existed.

       {¶10} The trial court denied this motion as it related to evidence regarding the

investigation into Officer Bolton’s misconduct, but imposed a sanction in the form of

allowing defense counsel wide latitude in its cross-examination of Detective Harvey, the

lead detective on this case. When it denied this motion, the court stated again that it was

declining to decide anything related to the body camera evidence because at that point,

there was still not a fully developed record as to the potential existence of this evidence.

       {¶11} At a later point in trial, defense counsel informed the court that after

discussing the matter at length with McGuire, they would not be making another oral

motion for mistrial based on the state’s failure to turn over body camera evidence.

Instead, defense counsel moved for a sanction for the discovery violation in the form of

an additional jury instruction, asking the court to instruct the jury that they may infer from

the state’s failure to preserve body camera evidence that the evidence was relevant to the

case and favorable to McGuire.

       {¶12} Ultimately, the court instructed the jury on the issue as follows:

       You have also heard evidence that two East Cleveland Police officers who
       arrived first at the crime scene used body worn cameras. The East
      Cleveland Police Department was required to preserve the images and audio
      from those cameras. The State of Ohio was obligated to provide all of those
      recordings to counsel for the defendant. Those obligations were not met.
      You may consider these failures and draw any reasonable inference from
      them when deciding whether the State of Ohio has proved the charges
      beyond a reasonable doubt.

      {¶13} Following deliberations, the jury returned a verdict of guilty on all counts

and corresponding specifications.

      {¶14} On April 12, 2017, the trial court held a sentencing hearing. Counts 1

through 3 merged for sentencing, and the state elected to sentence on Count 1.        On

Count 1, the trial court sentenced McGuire to life imprisonment with parole eligibility

after 25 years.   For the corresponding firearm specification, the trial court sentenced

McGuire to a consecutive prison term of three years.    Finally, the trial court sentenced

McGuire to a prison term of 30 months on Count 4, to be served concurrently, and

imposed court costs.

      {¶15} McGuire appealed his conviction, presenting one assignment of error for our

review.

Law and Analysis

      {¶16} In his sole assignment of error, McGuire argues that the state of Ohio

violated his right to a fair trial by deliberately withholding exculpatory evidence.

Specifically, McGuire argues first that without the body camera footage, he was unable to

put forth a self-defense argument at trial without this evidence of the position of Mac’s

body as he lay dying in the car. He further argues that the state’s withholding of

evidence relating to Officer Bolton’s misconduct investigation was relevant impeachment
evidence.     McGuire addresses each alleged violation individually, but ultimately argues

that the two are intertwined and therefore should be analyzed for their cumulative effect

on his due process rights.

       {¶17} Due process requires that the state provide criminal defendants with any

evidence that is material to either their guilt or punishment. Brady v. Maryland, 373

U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Evidence is considered material “if

there is a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” United States v. Bagley, 473 U.S.

667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

       {¶18} The defendant carries the burden to prove a Brady violation rising to the

level of a denial of due process. State v. Iacona, 93 Ohio St.3d 83, 92, 752 N.E.2d 937

(2001).     There are three elements of a Brady violation: “(1) evidence at issue must be

favorable to the accused because it is exculpatory or impeaching; (2) evidence must have

been willfully or inadvertently suppressed by the State; and (3) prejudice ensued.” State

v. Allen, 8th Dist. Cuyahoga No. 103492, 2016-Ohio-7045, ¶ 12, citing Skinner v. Switzer,

562 U.S. 521, 536, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011), citing Strickler v. Greene,

527 U.S. 263, 281, 282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

       {¶19} In reviewing a Brady materiality question on appeal, we apply a de novo

standard of review. Allen at ¶ 11.
       {¶20} Although McGuire urges this court to consider the alleged violations

together and analyze their cumulative effect, the different character of each alleged

violation requires us to first consider them individually.

       Bolton Investigation

       {¶21} With respect to the state’s failure to turn over information regarding the

Bolton investigation, we agree with the state that this did not amount to a Brady violation.

       {¶22} As noted above, Brady material can be either exculpatory to the defendant

or impeachment material related to a government witness. Crim.R. 16(B)(2) provides

that upon receipt of a written demand for discovery by the defendant, the state shall

provide criminal records of the defendant, a codefendant, and the record of prior

convictions that could be admissible under Rule 609 of the Ohio Rules of Evidence of a

witness in the state’s case-in-chief, or that it reasonably anticipates calling as a witness in

rebuttal.   The Supreme Court has held that “when the reliability of a given witness may

well be determinative of guilt or innocence,” nondisclosure of evidence affecting

credibility falls within the general rule enunciated in Brady.   Giglio v. United States, 405

U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), citing Napue v. Illinois, 360 U.S.

264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

       {¶23} McGuire asserts that the state’s failure to disclose information related to the

Bolton investigation violated its duty under Brady and Giglio to turn over impeachment

evidence.
       {¶24} We first note that Brady does not apply here because the information that

the state was alleged to have suppressed — the fact that Bolton was being investigated for

misconduct — was publicly available.      “Brady does not apply to materials that are not

‘wholly within the control of the prosecution.’”   United States v. Delgado, 350 F.3d 520,

527 (6th Cir.2003), quoting Coe v. Bell, 161 F.3d 321, 344 (6th Cir.1998). There is no

need to require the state to “disclose” material that is readily available to the defense.

Indeed, defense counsel learned of the Bolton investigation by conducting a Google

search during trial.

       {¶25} Further, to the extent that McGuire’s argument here rests on not only the

existence of the Bolton investigation but specific details acquired by the state in the

course of the investigation, this is still insufficient to create a Brady violation. It is

important to note that the state never called Bolton as a witness.   This is critical, as the

obligation set forth in Giglio relates to impeachment evidence.        It is impossible to

impeach an individual who does not testify as a witness. While we acknowledge that the

state included Officer Bolton on its initial witness list provided to the defense, he was

ultimately not called as a witness. For these reasons, this does not amount to a Brady

violation.

       {¶26} Whether suppressed evidence is favorable “turns on the cumulative effect of

all suppressed evidence favorable to the defense, not on the evidence considered item by

item.” State v. Apanovitch, 107 Ohio App.3d 82, 92, 667 N.E.2d 1041 (8th Dist.1995).

However, because we find that the Bolton investigation was not Brady evidence, we
decline to consider the cumulative effect of the investigation and the body camera

evidence.

       Body Camera Evidence

       {¶27} McGuire also argues that his due process rights were violated by the state’s

failure to turn over the body camera footage from the responding officers, as this was

crucial to his defense and could have supported a theory of self-defense.      Specifically,

McGuire argues that if the position of Mac’s body appeared in the video to be even

slightly altered from how it was described by Officer Williams, the state’s entire theory of

the case would have been disrupted. This assertion is without merit.

       {¶28} Applying the Brady analysis laid out above, McGuire’s claim here fails.

Courts have consistently rejected Brady claims that are too speculative, requiring

defendants to substantiate claims that the evidence in question was favorable and

material. See State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032,

State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, State v. Hughes,

8th Dist. Cuyahoga No. 62884, 1993 Ohio App. LEXIS 5277 (Nov. 4, 1993).

       {¶29} Not only is McGuire’s assertion that the body camera evidence might have

supported a claim of self-defense speculative, it also ignores other evidence in the record

that would refute such a theory — specifically, the location of the bullet wounds and the

path of the bullets through Mac’s body. The bullets entered Mac’s body through the

back of his thighs and pelvis and traveled up and across his body, with one bullet

reaching his liver and another piercing his lung.   The medical examiner explained in his
testimony that this was consistent with the victim laying down in the vehicle with his legs

up in a defensive posture.      Such a position is also consistent with the eyewitness

testimony of Sultan Muhammad.

       {¶30} Finally, McGuire made statements to the police from the time of his arrest

and through trial that he did not possess a gun and was not at the crime scene when Mac

was shot.   Therefore, even if body camera evidence existed that supported a self-defense

theory of the case, McGuire is unable to show how he was prejudiced by this alleged

Brady violation.

       {¶31} Although McGuire’s claim fails under the three-prong test discussed above,

we note that this case is different than a traditional Brady case because the body camera

footage did not exist at the time of trial.   The state argues that it “cannot be faulted for

failing to disclose evidence it did not have.” State v. McClurkin, 10th Dist. Franklin No.

08AP-781, 2009-Ohio-4545, ¶ 57. This statement is generally accurate, but it does not

account for cases in which the state loses, destroys, or otherwise fails to preserve

evidence.   The state argues that there is no evidence suggesting that the state ever

possessed body camera footage from Officers Bolton and Williams from March 16, 2016.

 While the record contains no evidence that the prosecutor ever possessed body camera

evidence, the same cannot be said of the East Cleveland Police Department.

       {¶32} The record shows that the parties stipulated that “a thorough search was

made on March 30, 2017 for body camera video of Bolton and Williams from March 16th

or even the 17th, and none can be located.”       There is also evidence in the record, put
forth by the state’s witnesses, that at least one of the two responding officers was wearing

his body camera on March 16, had his camera on, and subsequently followed department

procedures for downloading the footage.      We agree with the state that “‘materials not

possessed by the government cannot be suppressed within the meaning of Brady.’”

McClurkin, quoting State v. Zirkle, 4th Dist. Meigs No. 95 CA 21, 1997 Ohio App.

LEXIS 4173, 11 (Aug. 27, 1997). However, this case is distinguishable from the cases

cited by the state, where the evidence in question never existed or was never in the

government’s possession.     In cases where the evidence was at some point in the

possession and control of the government, but is no longer available, we must apply a

different analysis.

       {¶33} “[W]hen potentially exculpatory evidence requested by a defendant is

permanently lost, ‘courts face the treacherous task of divining the import of materials

whose contents are unknown and, very often, disputed.’” State v. Mapp, 3d Dist. Union

No. 14-10-34, 2011-Ohio-4468, ¶ 25, citing California v. Trombetta, 467 U.S. 479, 486,

104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). In light of this difficulty, a different analysis is

required when dealing with the state’s failure to preserve evidence of an uncertain

exculpatory value, “of which no more can be said than that it could have been subjected

to tests, the results of which might have exonerated the defendant.” State v. Geeslin,

116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 9. “Unless a criminal defendant

can show bad faith on the part of the police, failure to preserve potentially useful
evidence does not constitute a denial of due process of law.” Arizona v. Youngblood,

488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

        {¶34} The defendant bears the burden of showing that the government acted in bad

faith. Geeslin at ¶ 14.    “‘The term “bad faith” generally implies something more than

bad judgment or negligence.’” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577,

971 N.E.2d 865, ¶ 81, quoting State v. Tate, 5th Dist. Fairfield No. 07 CA 55,

2008-Ohio-3759, ¶ 13. “It imports a dishonest purpose, moral obliquity, conscious

wrongdoing, breach of a known duty through some ulterior motive or ill will partaking

the nature of fraud.” Id. at ¶ 81, quoting Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d

272, 276, 452 N.E.2d 1315 (1983).

        {¶35} Here, McGuire alleges that Bolton somehow corrupted the investigation of

his case. In support of this allegation, McGuire relies on Bolton’s unrelated criminal

case.   A reference to an unrelated incident is insufficient to establish that the state acted

in bad faith in failing to preserve the body camera evidence.            Based on the East

Cleveland Police Department policy articulated on the record at trial, we know that the

failure to preserve the body camera evidence constitutes a breach of a known duty.        We

cannot, however, conclude that it was done through some ulterior motive or ill will as

required for a finding of bad faith.   There is nothing in the record indicating bad faith as

alleged by McGuire.     In fact, the record reveals a thorough, though ultimately fruitless,

effort by the prosecutor to procure body camera evidence.
      {¶36} In light of the foregoing, we overrule McGuire’s assignment of error and

affirm his conviction and sentence.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



__________________________________________
TIM McCORMACK, PRESIDING JUDGE

LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
