State v. Thorpe

Citations

• 2021 Ohio 1295

Syllabus

Reckless homicide lesser-included-offense instruction negligent homicide murder expert report ballistics match consistent with prosecutorial misconduct Crim.R. 16(K) expert report motion to suppress Franks challenge search-warrant affidavit cumulative error. Trial court properly instructed the jury on lesser included offense of reckless homicide where evidence supported a finding that the defendant was not guilty of murder but was guilty of the lesser included offense of reckless homicide. Trial court properly refused to instruct the jury on negligent homicide because negligent homicide was not a lesser included offense of either murder or reckless homicide. Allowing the state's ballistics expert to describe a bullet and shell casing found at the crime scene as a \match\ instead of describing it as \consistent with\ a bullet and shell casing from a test-fired gun in the defendant's possession did not amount to plain error, where there was no legal authority to support the claimed error and the evidence of defendant's guilt was overwhelming. Prosecutor did not engage in prosecutorial misconduct in opening statement. Although prosecutor's question that implied the defendant's guilt was inappropriate, it was an isolated comment and did not prejudice the outcome of the trial. Although ballistics expert testified about guns not described in the expert report, the defense was not prejudiced because the expert's notes on the guns were produced in discovery and the defense previously cross-examined the expert in a prior proceeding. Trial court properly overruled a motion to suppress based on a Franks challenge without a hearing where probable cause still would have been found even if the allegedly false statement were removed from the search warrant affidavit. There was no cumulative error.