[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