STATE EX REL. LAVON THOMAS AND FELICIA KELLY v. JUDGE WILLIAM T. McGINTY
No. 108633
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
December 10, 2019
2019-Ohio-5129
Writ of Prohibition Motion No. 529677 Order No. 533873
JUDGMENT: WRIT DISMISSED
DATED: December 10, 2019
Appearances:
Ohio Crime Victim Justice Center and Elizabeth Well, for relator.
Law Office of Timothy Farrell Sweeney and Timothy F. Sweeney, for respondent.
MARY J. BOYLE, P.J.:
{¶ 1} On May 31, 2019, the relators, Lavon Thomas and Felicia Kelly, commenced this prohibition action against the respondent, Judge William McGinty, to prohibit him in the underlying case, State v. Counts, Cuyahoga C.P. No. CR-18-
FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} As gleaned from the filings in the present case and the underlying case, in the fall of 2018, Kaylynn Counts, a college student, was staying in the home of a family member, Lavon Thomas, a 72-year-old woman and the mother of Felicia Kelly. On November 9, 2018, Thomas and Kelly told Counts to leave the home. It is alleged that in the ensuing altercation Counts assaulted Thomas and stabbed Kelly. Counts has maintained that she acted in self-defense.
{¶ 3} On December 3, 2018, the grand jury indicted Counts for the attempted murder of Kelly and four counts of felonious assault. During discovery, the state gave Counts‘s attorneys copies of all its pictures and body camera footage of Thomas‘s home taken during the investigation.
{¶ 4} Nevertheless, Counts‘s attorneys on April 1, 2018, filed a “Motion for Criminal Rule 16 entry upon land for inspection and photograph” of Thomas‘s home. The lawyers alleged that their ability to inspect and photograph the residence is necessary to the preparation of the defense and that the materials released by the
{¶ 5} In its April 16, 2018 brief in opposition, the state argued that defense counsel and their investigators have no right to enter Thomas‘s home “to inspect it for any permissible purpose under current Ohio law.” (State‘s brief in opposition, pg. 2.)
{¶ 6} The respondent judge conducted a hearing on the motion on May 16, 2019. Defense counsel argued that the materials provided by the state showed images of the injuries and their client being subdued and arrested; these images would not allow them to forensically recreate the incident. Similarly, the county‘s blueprints were not helpful, just some rectangles. Their inspection would be no more intrusive than the state‘s or a jury view. Defense counsel also contested the state‘s interpretation of
{¶ 7} The state countered that
{¶ 8} On May 20, 2019, the respondent judge granted the discovery motion as follows:
The court finds that the defendant‘s motion for Criminal Rule 16 entry upon land for inspection and photograph is granted. The court orders: The parties communicate to provide 3 available days with a specific time to allow state to confer with homeowner. The state will indicate to defense counsel the date of discovery. The court orders that bailiff shall be the court representative and be present at all times while the defendant, defense counsel, and their experts are within the residence. At all times, the defendant, defense counsel and their expert shall be within the view of the bailiff. The court orders that a sheriff‘s deputy shall assist bailiff in this procedure. The victim shall not be in the residence once the discovery process commences. The court further orders that Cleveland Police Department and County Prosecutor personell [sic] may be present, but may not be within the residence when the discovery is ongoing.
{¶ 9} The state sought leave to appeal this decision the next day, State v. Counts, 8th Dist. Cuyahoga No. 108564. In seeking leave to appeal, the state argued that the trial court lacked authority to order access to a victim‘s home under the specific provision of
{¶ 10} On May 31, 2019, Thomas and Kelly‘s counsel, contemporaneous with filing this prohibition action, filed a notice of appearance in the underlying case and moved the respondent judge to stay proceedings. In this motion, Thomas and Kelly argued that the
{¶ 11} On June 28, 2019, the state sought to appeal this court‘s decision of the denial of leave to appeal to the Supreme Court of Ohio. In trying to establish that this case presented issues of great public or general interest, the state noted the difficulty a crime victim has in enforcing rights under Section 10a. The victim is not a party to the criminal case and, thus, may not be able to file protective motions or file an appeal. In State v. Hughes, 8th Dist. Cuyahoga No. 107697, 2019-Ohio-1000, in which a crime victim sought to appeal an order in a criminal case requiring her to provide the names of medical providers, the lead opinion stated that victims lacked standing to appeal from an order in a criminal case and indicated that extraordinary writs may be the appropriate remedy to effect Section 10a. Therefore, the state‘s appeal was appropriate to determine the means to enforce Section 10a. The Supreme Court summarily declined to accept the case for review.
DISCUSSION OF LAW
{¶ 12} In their complaint for prohibition, the relators argue that Section 10a‘s provisions protecting a victim‘s privacy and the right to refuse discovery requests, as well as the Fourth Amendment right to be free from unreasonable government intrusion into residences, deprived the trial court of the jurisdiction to issue the May 20, 2019 discovery order. In their motion for stay of proceedings, the
{¶ 13} The principles governing prohibition are well established. Its requisites are (1) the respondent against whom it is sought is about to exercise judicial power, (2) the exercise of such power is unauthorized by law, and (3) there is no adequate remedy at law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989). Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the cause that it is attempting to adjudicate or the court is about to exceed its jurisdiction. State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d 571 (1941), paragraph three of the syllabus. “The writ will not issue to prevent an erroneous judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in deciding questions within its jurisdiction.” State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64, 65, 90 N.E.2d 598 (1950). Furthermore, it should be used with great caution and not issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas, 137 Ohio St. 273, 28 N.E.2d 641 (1940). Nevertheless, when a court is patently and
{¶ 14}
(A) To secure for victims justice and due process throughout the criminal and juvenile justice systems, a victim shall have the following rights, which shall be protected in a manner no less vigorous than the rights afforded to the accused:
(1) to be treated with fairness and respect for the victim‘s safety, dignity and privacy;
* * *
(6) except as authorized by Section 10 of Article I of this constitution, to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused;
* * *
(B) * * * If the relief sought is denied, the victim or the victim‘s lawful representative may petition the court of appeals for the applicable district, which shall promptly consider and decide the petition.
{¶ 15}
* * * In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy trial by an impartial jury of the county in which the offense is alleged to have been committed; * * *.
{¶ 16}
(A) This rule is to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large.
* * *
(B) Upon receipt of a written demand for discovery by the defendant, * * * the prosecuting attorney shall provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case * * * and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant, within the possession of, or reasonably available to the state, subject to the provisions of this rule:
* * *
(3) * * * all laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings, or places;
* * *
(5) Any evidence favorable to the defendant and material to guilt or punishment;
* * *
(J) The following items are not subject to disclosure under this rule:
* * *
(3) Materials that by law are subject to privilege, or confidentiality, or are otherwise prohibited from disclosure.
* * *
(L) (1) The trial court may make orders regulating discovery not inconsistent with this rule. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, * * * or it may make such other order as it deems just under the circumstances.
{¶ 17}
[a] subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein; but the court, upon motion made promptly and in any event made at or before the time specified in the subpoena for compliance therewith, may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that the books, papers, documents, or other objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time they are offered in evidence, and may, upon their production, permit them or portions thereof to be inspected by the parties or their attorneys.
{¶ 18} The court further notes that a trial court may order a jury view pursuant to
{¶ 19} Relators’ argument is direct.
{¶ 20} In their motion for stay, the relators contend that the language of Ohio‘s criminal discovery rules do not permit the trial court to issue the inspection order.
{¶ 21} The relators rely on a Colorado case to support their position. In People ex rel. E.G., 2016 CO 19, 368 P.3d 946, the criminal defendant moved the trial court to allow his attorney and investigator to view the crime scene, which was the defendant‘s grandmother‘s house. The trial court denied the motion because
{¶ 22} The relators also rely on Howard v. State, 232 Md. App. 125, 156 A.3d 981 (2017). In this case, the defendant moved to inspect the interior of a private home where the crimes were committed. The trial judge denied the motion holding that Maryland law does not authorize a court in a criminal action to order a non-party to allow entry upon his land for inspection. The Maryland court of appeals
{¶ 23} Several other states have also upheld the right of individuals to refuse discovery requests. In State ex rel. Beach v. Norblad, 308 Ore. 429, 781 P.2d 349 (1989), the defendant in a murder case sought the inspection of the crime scene, the home of the murder victim‘s widow. The defendant obtained a court order to allow the inspection, because he alleged a fair trial required that his investigator be able to observe the crime scene. The widow then obtained a writ of mandamus requiring the trial judge to vacate the order, because the trial judge lacked authority to issue such an order. Similarly, in State ex rel. Glode v. Branford, 149 Ore.App. 562, 945 P.2d 1058 (1997), an Oregon court in a mandamus action ruled that a discovery order requiring a third party to disclose personal records exceeded the trial judge‘s authority.
{¶ 25} Thus, the relators argue that the constitutional provisions, especially
{¶ 26} However, under Ohio law, the trial court has broad discretion, and thus the jurisdiction, over discovery matters, such that the writ of prohibition will not lie. In State ex rel. Corrigan v. Griffin, 14 Ohio St.3d 26, 470 N.E.2d 894 (1984),
{¶ 27} In State ex rel. The Ohio Bell Telephone Co. v. Williams, 63 Ohio St.2d 51, 407 N.E.2d 2 (1980), the trial court authorized the Columbus Police Department to install a monitoring device to record the telephone numbers for all outgoing calls
{¶ 28} The Ohio Courts of Appeals have also confirmed the broad authority trial courts have over discovery. In ruling on a defense request for police investigatory files, the Twelfth District stated: “[t]he language of
{¶ 30} In summary, as a matter of Ohio discovery law, the respondent judge has the jurisdiction to issue the order. The remaining issue is whether the invocation of
{¶ 31} There are few cases that examine whether a criminal defendant upon court order may inspect a private residence that is also the crime scene. The general consensus is that in weighing the defendant‘s constitutional rights to due process, to a fair trial, to confrontation, and to effective assistance of counsel against the private citizen‘s constitutional right to privacy and to be free from unreasonable searches, the trial court may order the inspection upon a showing of justification. Thus, the
{¶ 32} State in Interest of A.B., 219 N.J. 542, 99 A.3d 782 (2014), is perhaps the most instructive case. Like Ohio, New Jersey has a constitutional provision, the Victim‘s Rights Amendment that guarantees that a crime victim shall be treated with fairness, compassion and respect. A New Jersey statute,
{¶ 33} In A.B., a 17-year-old juvenile was accused of sexually molesting his six-year-old cousin at his cousin‘s home. Although the defense attorney had access to all the photographs and material the prosecutor had, counsel sought his own inspection. He argued that the inspection was necessary to prepare for trial. The inspection would allow him to determine, inter alia, whether the alleged acts were subject to easy detection. The trial court allowed the search, limiting the search to 30 minutes, allowing an investigator from the prosecutor‘s office to be present,
{¶ 34} In affirming the decision of the trial court, the New Jersey Supreme Court framed the issue under an abuse of discretion standard and noted that it required the balancing of the right to a fair trial and the right of the alleged victims to privacy in their home. The supreme court reasoned that the purpose of pretrial discovery is to ensure a fair trial and that a trial in which a defendant does not have access to the raw materials to build a defense is fundamentally unfair. The supreme court also noted that visiting a crime scene can be critical in preparing a defense. A trial attorney must know what the crime scene looks like to be able to interview witnesses and prepare direct and cross-examination. Indeed, the failure to investigate a crime scene could constitute ineffective assistance of counsel. The supreme court affirmed the privacy rights of victims and families but concluded that the competing rights are not mutually exclusive but must be harmonized, especially through limitations set by the trial judge. There was never any question that the trial judge did not have the power to issue the order.
{¶ 35} Like New Jersey and Ohio, Hawaii also has a constitutional provision protecting privacy.
{¶ 36} In State v. Gonsalves, 661 So.2d 1281 (Fla.App. 1995), a defendant charged with burglary obtained an order to inspect the crime scene, the victim‘s home. The trial court reasoned that inspection and photographs would provide materials for possible cross-examination and impeachment. The trial court so ruled over the victim‘s objections that such an inspection could facilitate another burglary. The court of appeals upheld the inspection order reasoning that the “‘very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts * * * . To insure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.‘” Id. at 1282, quoting United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). The court concluded: “Although we respect the victim‘s right to privacy in her home, we concluded that it is outweighed by the defendant‘s right to due process here.” 661 So.2d at 1282.
{¶ 37} The Virginia Court of Appeals held that the due process rights of the Virginia Constitution “give a criminal defendant a right to view, photograph, and take measurements of the crime scene, provided that the defendant makes a showing that a substantial basis exists for claiming that the inspection and
{¶ 38} In Commonwealth v. Matis, 446 Mass. 632, 915 N.E.2d 212 (2006), the defendant was accused of raping a 15-year-old girl in the living room of her family‘s home. The defendant moved that his attorney and investigator be allowed to inspect, measure, and photograph the interior of the home. In upholding the granting of the motion, the Supreme Judicial Court of Massachusetts ruled “that the judge had authority to allow the motion and order access to a crime scene in a private residence, on the basis of a showing that the information obtainable at the scene was evidentiary and relevant to the defense * * *.” 446 Mass. at 633. The court based its decision on the defendant‘s right, under the Sixth Amendment to obtain relevant evidence. The court further noted that such inspection orders must be carefully tailored to protect the privacy interests involved.
{¶ 39} The Supreme Court of Vermont noted that a “defendant‘s need for access to a crime scene controlled by a private third party must be balanced against the property occupant‘s right to privacy. Courts have generally struck that balance by requiring a defendant to make some showing that the requested intrusion is
{¶ 40} In State v. Brown, 306 N.C. 151, 293 S.E.2d 569 (1982), the defendant was charged with first degree murder, and police had cordoned off the murder scene. The trial court had denied defense counsel‘s request to view the crime scene. On appeal, the Supreme Court of North Carolina held that on the peculiar facts of the case, it was “a denial of fundamental fairness and due process for the defendant to be denied, under police prosecutorial supervision, a limited inspection of the premises of the crime scene.” 151 N.C. at 163-164. Nevertheless, the error was harmless beyond a reasonable doubt.
{¶ 41} When confronted with the issue of whether a person accused of attempted murder could inspect the crime scene, the apartment he formerly shared with his estranged wife, the Supreme Court of New York, Bronx County, stated that “[t]he constitutional right to compulsory process give the defendant a right to compel discovery from a private third party if justification exists which would outweigh the rights and legitimate interests of the third party.” People v. Nicholas, 157 Misc.2d 947, 948, 599 N.Y.S.2d 779 (1993). After examining the facts and arguments, the court concluded “that defendant has failed to demonstrate any compelling reasons for access to complainant‘s residence sufficient to outweigh complainant‘s constitutional right to privacy.” Id. at 952-953.
{¶ 43} Additionally, this court notes that in State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, after the Supreme Court of Ohio denied the prosecutor‘s application for a writ of prohibition because Ohio courts have broad discretion over discovery, it also held that appealing a contempt order is an adequate remedy at law that precludes a writ of prohibition. Although holding that a victim of crime must force contempt and then appeal seems harsh and against the spirit and intent of
{¶ 44} Accordingly, this court grants the respondent‘s dispositive motion and dismisses the application for a writ of prohibition. Under Ohio law, the respondent has broad authority over discovery, including the authority to order discovery beyond the specific limits of
{¶ 45} Writ dismissed.
______________________________
MARY J. BOYLE, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR