State v. Zinkiewicz

WOLFF, P.J. Tyrone A. Zinkiewicz was indicted on one count of Illegal Use of a Minor in Nudity Oriented Material, in violation of R.C. 2907.323(A) (1), and one count of Endangering Children, in violation ofR.C. 2919.22 (B)(5). Zinckiewicz was found guilty of both counts, but the endangering court was dismissed pursuant to R.C. 2941.25. Zinckiewicz was sentenced on the remaining count and appeals, advancing five assignments or error. First Assignment of Error THE COURT ERRED IN OVERRULING THE MOTION TO SUPPRESS ON THE BASIS THAT THE SEARCH WARRANT WAS ILLEGALLY OBTAINED DUE TO STALE INFORMATION RECEIVED BY THE AFFIANT-OFFICER. Second Assignment of Error THE COURT ERRED IN OVERRULING THE MOTION TO SUPPRESS ON THE BASIS THAT THE SEARCH WARRANT WAS ILLEGALLY BASED UPON AN UNCORROBORATED STORY FROM AN UNRELIABLE INFORMANT. The gist of these two assignment is that the municipal judge who issued the search warrant lacked the requisite probable cause to do so because the affidavit supporting the warrant was based on stale, uncorroborated information from Kenneth M. Haston, the minor subject of the photographs in question. The affidavit, presented to the municipal judge July 26, 1988, was signed Detective Matheny of the Montgomery County Sheriff's Office and stated in its entirety as follows: "1. Now before the Court comes the Affiant, Det. P. J. Matheny, who states that she has been employed by the Montgomery County Sheriff's Office for the past 13 years. During the last 4 years, she had investigated and assisted in felony investigations. For the past 11/2 years, she has been assigned to the Rape and Morals Squad, and has received training and attended numerous seminars in the investigation of rapes and moral offenses. "2. On 7-25-88, one Kenneth M. Haston, W/M/16, of 4057 Iddings Dr., Dayton, Ohio, contacted the Affiant, a sworn Deputy Sheriff of the Montgomery County Sheriff's Office. During the contact Kenneth M. Haston stated that he *42 had posed nude on several occasions for Tyrone Zinkiewicz, while he took photo's (sic) of him for the purpose of publication. Kenneth M. Haston stated that these photo's (sic) were taken at 637 Syracuse Avenue, Dayton, Harrison Twp., Ohio. "3. During the interview, which was held at 4057 Iddings Dr., the Affiant learned that 5 or 6 nude photo's (sic) had been taken of him by Tyrone Zinkiewicz and that he had recovered 2 of the photo's (sic), but that Tyrone Zinkiewicz still has several more at his residence located at 637 Syracuse Avenue, Dayton, Harrison Twp., Ohio. "4. Kenneth M. Haston also states that Tyrone Zinkiewicz also entices other juveniles into his home on Syracuse Avenue, for the purpose of engaging in sexual activities and posing for a Gay Magazine. "5. Kenneth M. Haston also states that he has been shown pornographic magazines and nude photo's (sic) of several juveniles that have visited the Zinkiewicz residence. "6. The Affiant feels that a violation of 2919.22 (B) (5) of the Ohio Revised Code has occurred and that evidence supporting the statements of Kenneth M. Haston exist (sic) at 637 Syracuse Avenue, Dayton, Harrison Twp., Montgomery County, State of Ohio, and that further delay of a search of the residence may prevent said evidence from being displayed to the Court. "7. Further, the Affiant saith not. Detective Matheny also presented the two nude photos of Haston to the municipal judge when she presented her affidavit." The trial court overruled the motion to suppress on the basis of Illinois v. Gates (1983), 462 U.S. 213 wherein Justice Rehnquist, writing for the court, stated at 239. The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity"and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantialbasisfor... concluding]" that probable cause existed. Deputy Matheny testified at the suppression hearing that Haston first told her on July 25, 1988, that Zinkiewicz photographed him in the nude in May, 1988. She further testified that she "understood" that the municipal judge, although approving the warrant, expressed concern about the viability of the warrant because of the lapse of time between the photography session and Haston'sinforming Detective Matheny about the incident. Because of the length of time between when Haston claimed to have been photographed by Zinkiewicz and when he told Detective Matheny, Zinkiewicz claims the information was too stale to support a probable cause determination that he was presently in possession of nude photos of Haston as of July 26, 1988. In the affidavit, the present tense is used in describing Zinkiewicz's possession of the Haston pictures. The tenor of the affidavit was that althoughZinkiewicztookpicturesforpublication, he also retained a number of the pictures he had taken. A reasonable inference could be drawn that, despite the passage of time, Zinkiewicz would not have disposed of these items and that it was probable that they still were in his possession July 26, 1988. More troublesome to us is Zinkiewicz's contention that Haston's statements to Detective Matheny were not corroborated. Detective Matheny testified that no effort was made to corroborate Haston's story. While Haston's photos corroboratedhis claim to have been photographed in the nude, they didn't corroborate the balance of his claims, including the allegations that Zinkiewicz was the photographer or was presently in possession of the remaining photographs. Hence, we are reluctant to approve the trial court's determination that the municipal judge had probable cause to issue the search warrant. We do, however, conclude that the motion could have been properly overruled on the basis of United States v. Leon (1984), 468 U.S. 897, which established the so-called "good faith" exception to the exclusionary rule. See also State v. Wilmoth (1986), 22 Ohio St. 3d 251, State v. George (1989), 45 Ohio St. 3d 325. In Leon, the court stated at 922: "We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. We do not suggest, however, that exclusion is always inappropriate in cases where an officer has obtained a warrant and abided by its terms." The court stated at 926: "In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppressionis appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable *43 cause." In our judgment, Detective Matheny could have harbored an objectively reasonable belief in the existence of probable cause to believe zinkiewicz was in possessionof nude photographs of Haston. Although the municipal judge expressed reservations about issuing the warrant, he did issue it. His concern was not the concern that has troubled us. The reservationsattributed to the municipal judge do not establish that he abandoned his detached and neutral role. We agree with Judge Grady's statement, in dissent, that the determination of whether an officer has acted with objective reasonableness cannot turn on the fact that a warrant was issued. We do think, however, that the issuance of the warrant - which by law must be based on probable cause - is a factor worthy of consideration in determining whether an officer had "an objectively reasonable belief in the existence of probable cause." Id. It has not been suggested by Zinkiewicz that Detective Matheny was dishonest or reckless in preparing her affidavit. Judge Grady however, does conclude that Officer Matheny was dishonest or reckless. Id. He attributesto Officer Matheny knowledge that Haston was the subject of a criminal investigation which, in turn, should have been related by her to the municipal judge. There is no direct evidence in the record that Officer Matheny possessed such information and the majority has not so inferred. Although Zinkiewicz faults Officer Matheny's not attempting to corroborate what Haston told her, he statesatp. 26 of his appellate brief that she was "not aware of the pending criminalinvestigationofthe informant(Haston)." Judge Grady also finds Officer Matheny's affidavit false and misleading because it states that Haston contacted her, whereas in fact, she contacted Haston, and because she omitted any reference to Officer Caudit, who first called her about Haston. Judge Grady concludes that the omission of any reference to Detective Caudill was to head off inquiry by the municipal judge into Haston's background. This omission, coupled with the misstatementas to who contacted whom, served to portray Haston in a much more sympathetic light that Haston deserved. While the record might support the inferences made by Judge Grady, the majority has not made the same inferences. The first two assignments are overruled. Third Assignment of Error THE COURT ERRED IN RESTRICTING DEFENSE COUNSEL'S CROSS-EXAMINATION OF THE COMPLAINING WITNESS REGARDING THE CONTENTS OF A TAPE RECORDED TELEPHONE CONVERSATION BY THAT WITNESS. The trial court prohibited Zinkiewicz from introducing the tape of a telephone conversation among Haston and two confederates wherein they discussed various criminal activity in which they has been involved, their concern about being apprehended by the police, and future criminal activity, including thievery, which they needed to carry out to avoid apprehension. Zinkiewicz contends on appeal that this tape tended to prove Haston has "a deceptive and conniving character." Although he cites Evid. R. 404(A)(2) and 404(B), the only apparentrelevance of this information is to the credibility of Haston, which is governed by Evid. R. 404(3), which in turn refers to Evid. R. 608: "(A) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witnessfor truthfulnesshas been attacked by opinion or reputation evidence or otherwise. "(B) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may not be proved by extrinsic evidence. They may however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified." The basic principle of Evid. R. 608 is that attacking credibility by evidence of specific instances of conduct is to be the exception to the rule rather than the rule itself. In our judgment, the trial court could have reasonably determined that the criminal conduct discussed on the tape was not clearly probative of Haston's untruthfulness. The trial court, however, did not rule on the basis of Evid. R. 608(B) but, rather, on the basis of Evid. R. 403(A). Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed *44 by the danger or unfair prejudice, of confusion of the issues, or of misleading the jury. (Emphasis ours.) The weighing process required by Evid. R. 403(A) must necessarily be commended to the sound discretion of the trial court. The criminal conduct discussed on the tape was unrelated to the chargesfor which Zinkiewicz was being tried. We find no abuse of discretion in the trial court's determining that the probative value of the tape was, in the trial court's words, "substantially outweighed by the danger of confusion of the issues and misleading the jury." The third assignment is overruled. Fourth Assignment of Error THE COURT'S APPLICATION OF OHIO REVISED CODE SECTIONS 2907.323(A) (1) and 2919.22(B) (5) WAS UNCONSTITUTIONALLY OVERBROAD. 2907.323(A) (1) provides in pertinent part as follows: "No person shall do any of the following: Photograph any minor who is not the person's child or ward in a state of nudity, or create, direct, produce, or transfer any material or performance that shows the minor in a state of nudity..." State v. Young (1988), 37 Ohio St. 3d 249 determined, inter alia, that 2907.323(A) (3) is constitutional. The parties here agree that Young controls our disposition of this assignment. Syllabus 1 of Young states: "R.C. 2907.323(A) (3) prohibits the possession or viewing of material or performance of a minor who is in a state of nudity, where such nudity constitutesa lewd exhibition or involves a graphicfocus on the genitals and where person depicted is neither the child nor the ward of the person charged." Likewise, R.C. 2907.323(A) (1) prohibits photographing a minor in a state of nudity where the nudity constitutes a lewd exhibition or involves a graphic focus on the genitals. Of the fourteen photographs in question, four photographs, in our judgment, depict nudity which can be constitutionallyproscribed,thosebeing State's Exhibits 5, 9, 14, 15. The fourth assignments is overruled. Fifth Assignment of Error THE COURT ERRED IN NOT ORDERINGTHE PROSECUTOR'S EVIDENCE LIMITED TO WHAT WAS ALLEGED IN THE PROSECUTOR'S RESPONSE TO THE REQUEST FOR A BILL OF PARTICULARS. The contention here seems to be that the complete police report, furnished in response to Zinkeiwicz's demand for a bill of particulars, did not suffice as a bill of particulars and Zinkiewicz was entitled to sanctions. As to the only count upon which Zinkiewicz stands convicted, the indictment was straightforward, and Zinkiewicz was not entitled to any more elucidation than was contained in the police report. The other court, for which more elucidation might have been helpful, was dismissed. There being no claimed or demonstrated prejudice, this assignment is overruled. The judgment will be affirmed. Judgment affirmed. WILSON, J., Concurs.