Court of Appeals of Ohio, Eighth District, Cuyahoga
STATE EX REL. LAVON THOMAS AND FELICIA KELLY, Relators,
JUDGE WILLIAM T. McGINTY, Respondent.
of Prohibition Motion No. 529677, Order No. 533873
Crime Victim Justice Center and Elizabeth Well, for relator.
Office of Timothy Farrell Sweeney and Timothy F. Sweeney, for
JOURNAL ENTRY AND OPINION
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.
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
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
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.
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
(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 ...