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State ex rel. Thomas v. McGinty

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 10, 2019

STATE EX REL. LAVON THOMAS AND FELICIA KELLY, Relators,
v.
JUDGE WILLIAM T. McGINTY, Respondent.

          Writ of Prohibition Motion No. 529677, Order No. 533873

          Ohio Crime Victim Justice Center and Elizabeth Well, for relator.

          Law Office of Timothy Farrell Sweeney and Timothy F. Sweeney, for respondent.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, PRESIDING JUDGE

         {¶ 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- 634510-A, from enforcing his discovery order that permits the defendant's counsel to inspect, measure, and photograph their residence, which is a crime scene. On June 25, 2019, the respondent moved to dismiss this prohibition action, and on July 10, 2019, the relators filed their brief in opposition. The court has reviewed the filings, and the matter is ripe for resolution. For the following reasons, this court grants the judge's motion to dismiss and dismisses the application for a writ of prohibition.

         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 state were insufficient for that purpose. They invoked Crim.R. 16(B)(3), which allows for discovery, inter alia, of building and places.

         {¶ 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.) Crim.R. 16(B), the state continued, is conditioned upon the state providing discovery. Because the state already released dozens of photographs of the home, as well as the body camera footage, the recently amended rule prevented Counts's attorneys from conducting their own inspection and invading a 72-year-old woman's home. The state also invoked the Fourth Amendment in arguing that the trial court had no authority to grant the motion.

         {¶ 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 Crim.R. 16. Counsel further opined that it would be malpractice on their part if they did not move to inspect the crime scene.

         {¶ 7} The state countered that Crim.R. 16 does not permit inspection beyond what the state provided, that the material provided during discovery adequately shows the home, and that because Counts had lived there, the defense would know the lay of the house. Moreover, it would be wrong to allow such an invasion into a person's home, much less a 72-year-old woman's home.

         {¶ 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 sheriffs 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 Crim.R. 16. The state also invoked the victim's right of privacy and the protection of the Fourth Amendment. On June 11, 2019, this court summarily denied the motion for leave to appeal.

         {¶ 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 Ohio Constitution, Article I, Section 10a (hereinafter "Section 10a"), which gives victims the right to refuse an accused's discovery request; the specific wording of Crim.R. 16 and 17; the Fourth Amendment right to be free of unreasonable governmental intrusion; and the constitutional right to privacy deprived the trial court of the authority to order the inspection of the home.

         {¶ 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 relators also argue that the limited scope of the Ohio Criminal Rules for discovery, Rules 16 and 17, does not vest the respondent judge with the authority to order the inspection of the home. Thus, the relators propose that a victim's unilateral invocation of a right under Section 10a deprives a court of the subject matter jurisdiction to issue a discovery order in a criminal case. This court again confronts the problem of whether Ohio's current remedies - appeal, mandamus, prohibition, procedendo, forcing contempt and then appealing and seeking a stay, declaratory judgment and/or injunction - provide adequate means to effect Section 10a.

         {¶ 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 unambiguously without jurisdiction to act whatsoever, the availability or adequacy of a remedy is immaterial to the issuance of a writ of prohibition. State ex rel Tilford v. Crush, 39 Ohio St.3d 174, 529 N.E.2d 1245 (1988); and State ex rel Csank v. Jaffe, 107 Ohio App.3d 387, 668 N.E.2d 996 (8th Dist.1995). However, absent such a patent and unambiguous lack of jurisdiction, a court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction. A party challenging the court's jurisdiction has an adequate remedy at law via an appeal from the court's holding that it has jurisdiction. State ex rel Rootstown Local School Dist. Bd. of Edn. v. Portage Cty. Court of Common Pleas, 78 Ohio St.3d 489, 678 N.E.2d 1365 (1997). Moreover, this court has discretion in issuing the writ of prohibition. State ex rel Gilligan v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382 (1973).

         {¶ 14} Section 10a provides in pertinent part as follows:

(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 ...

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