O:1G`^NAL

IN THESUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee,

V.

CHARLOTTE R. DAVIDSON,

Defendant-Appellant.

Case No. 2012-1381

On Appeal from theFranklin CountyCourt of Appeals,Tenth Appellate District

Court of Appeals CaseNo. 11 AP-1084

PLAINTIFF-APPELLEE'SMEMORANDUM IN OPPOSITION TO JURISDICTION

Yeura R. Venters (0014879)Timothy E. Pierce* (0041245)*Counsel ofRecordPublic DefenderFranklin County Ohio373 South High Street/12' FloorColumbus, Ohio 43215614-525-8857

Counsel for Appellant Charlotte Davidson

F

MICHAEL DeWINE (0009181)Ohio Attorney General

Maritsa A. Flaherty* (0080903)*Counsel of RecordJeannine R. Lesperance (0085765)Assistant Attorneys GeneralHealth Care Fraud150 East Gay Street, 17 th FloorColumbus, Ohio 43215614-466-0722; 614-644-9973 faxMaritsa. flaherty@ohioattorneygeneral. govJeannine.lesperance@ohioattorneygeneral.gov

Counsel for Plaintiff-AppelleeState of Ohio

1 I ^

SEP 1 2 Z01z

CLERK OF G®URTSUPREME COURT OF OHIO

TABLE OF CONTENTS

Page

INTRODUCTION ................................:................................................................................1

STATEMENT OF CASE AND FACTS .............................................................................2

1. THIS CASE DOES NOT PRESENT A SUBSTANTIALCONSTITUTIONAL QUESTION OR A QUESTION OF PUBLIC ORGREAT GENERAL INTEREST ...........................:....:...........................................6

A. Reversal of the Court of Appeals would benefit only Defendant .........................6

B. The appeal raises no substantial constitutional question because it turns onthe application of well-settled law to the unique facts of this case .......................7

II. ARGUMENT .......................................:.....................................................................8

Plainfiff-Appellee State of Ohio's Proposition of Law No. I

The trial court did not abuse its discretion in granting amistrial because the actions of Davidson's trial counsel created amanifest necessityfor a new trial ............................................................:.......8

CONCLUSION ...................................................................................................................15

CERTIFICATE OF SERVICE . ..........:.............................................................unnumbered

INTRODUCTION

In this discretionary appeal, Defendant Charlotte Davidson attempts to reap a windfall

from her counsel's own misconduct. The trial court declared a mistrial in Davidson's criminal

trial for theft by deception from Ohio's Medicaid program due to counsel's affirmative

misrepresentations to the trial court and repeated failure to ^ollow applicable criminal discovery

rules. The court of appeals affirmed that decision in upholding Davidson's criminal conviction

based on her election to plead no contest in lieu of retrial.

This appeal presents no substantial constitutional question because it is resolved by

applying well-settled law to the unique facts of this case. While Defendant invokes double

jeopardy, the only issue raised on appeal is whether Judge McIntosh abused his discretion in

fmding manifest necessity for a mistrial. The trial judge ruled reasonably because

(1) Davidson's counsel withheld select pages from a key document from the State, (2) then

attempted to use the missing pages from that document at trial to impeach the State's witnesses,

(3) next represented to the Court that all of the pages had been provided to the State, (4) then

attempted to use more missing pages during cross-examination of the State's final witness, and

(5) ultimately admitted that she withheld 42 entries from the key document from the State.

This appeal is not of public or great general interest because the decisions below concern

only Davidson, and the trial judge's determination is specific to the facts of this case.

The decisions below represent sound judicial administration and there is no need for this

Court's intervention. The trial judge appropriately weighed the relevant considerations for a

mistrial, and the court of appeals paid appropriate respect to the broad discretion of a trial judge

to manage trials. Because Davidson fails to assert any issue of significant constitutional, general

or public concern, the State requests that this Court deny jurisdiction.

STATEMENT OF CASE AND FACTS

Defendant-appellant, Charlotte R. Davidson, was indicted for one count of Theft by

Deception, in violation of R.C. 2913.02, a felony of the fifth degree. She was charged with

fraudulently billing the Ohio Department of Job and Family Services (ODJFS) for home health aide

services not rendered to a Medicaid recipient (confidentially labeled "V.P.").

The State provided discovery to and requested discovery from Davidson. Although

Davidson failed to file a formal discovery response, she produced excerpts of V.P.'s daily journal,

which the State marked as Exhibit M-1 for trial. The case proceeded to trial.

The key issue at trial was whether Davidson billed for hours and dates for which she was

not authorized to be paid. Thus, the State offered the testimony of witnesses who testified, inter

alia, that Davidson could not bill until she became a Medicaid provider (approved by letter dated

September 17, 2009) (Tr. 29-31) and was added to V.P.'s "All Services Plan" as an approved

provider (which occurred on September 18, 2009) (Tr. 279-280). Davidson billed ODJFS,

however, for services rendered between July 15, 2009, and September 17, 2009 (Tr. 315-327),

before she was authorized and while other home health aides were actually serving V.P.

The State's witnesses included home health aides who served V.P., who testified that they

met Davidson at V.P.'s residence but saw no direct evidence that Davidson was providing home

health aide services to V.P. during the relevant time period. E.g., (Tr. 58, 61 testimony of Tammy

Hammond) (Tr. 110-112 testimony of Michelle Reames). The recipient, V.P., also testified. She

stated that she maintained a joumal to track her home health aides. (Tr. 159-161, 164-66). The

State exaniined V.P. at length regarding the joumal. (Tr. 158-160). When the State asked V.P.

about why certain dates were missing from her joumal, she appeared surprised. (Tr. 159-160).

V.P. admitted that, because she liked Davidson, she paid her legal fees and gave her joucnal

to Davidson's trial counsel, (Tr. 159, 194, 203), who later gave excerpts to the State. (Tr. 376).

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On the afternoon of the second day of trial, during cross-examination of V.P., Davidson's

trial counsel showed V.P. some highlighted pages, attempting to impeach Michelle Reames'

credibility by showing that Reames' time sheets did not always match V.P.'s journal notes. (Tr.

168-170). The State objected, realizing that the pages shown to V.P. were missing from State

Exhibit M-1, which the State believed to be a complete copy of V.P.'s joumal. (Tr. 170-176):

Davidson's trial counsel stated that she "had no idea that they were missing" from the journal pages

produced to the State. (Tr. 171). Davidson's trial counsel indicated that she had four pages in her

hand that had not been provided to the State and, when asked whether she had any more missing

pages that she planned to use for cross-examination, she responded "No." Id. During a lengthy

dialogue concerning the missing pages, Davidson's trial counsel offered no reason for failure to

produce them to the State other than inadvertence. (Tr. 170-176). At the conclusion of the

colloquy, the Court attempted to redress the error by allowing the State to cross-examine V.P.

regarding the missing pages and by inviting the State to re-call Michelle Reames to testify regarding

any discrepancies. (Tr. 176). The Court also noted that the four missing pages were not

consecutive, making it unlikely that they were missing due to a copy machine error; rather, the

missing pages were from separate parts of V.P.'s joutnal, all relating to impeachment of Michelle

Reames' testimony. (Tr. 178). Following V.P.'s testimony, the trial adjourned.

Before the jury was brought back on the third day of trial, the State asked to clarify for the

record that "there are no other documents that are going to be used that we don't have." (Tr. 212).

Davidson's trial counsel responded "No, not that I'm aware of. I mean, I don't think so." Id.

On the fourth day of trial, the State called its investigator, Frank Kopus, as a witness. Mr.

Kopus was examined at length regarding how he calculated the amount of Davidson's fraudulent

billings. Specifically, he testified that he reviewed V.P.'s journal, and compared V.P.'s notes to the

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billings for V.P.'s aides, including Davidson. (Tr. 375-377). Mr. Kopus testified that, using the

documentation that had been provided to him prior to trial, including the journal, various billing

records, and the Defendant's own statements, he prepared a number of spreadsheets which were

presented to the jury, including spreadsheets intended to support the testimony of V.P.'s other home

health aides and a spreadsheet calculating the extent of the fraud. (Tr. 375-390).

On cross-examination of Mr. Kopus, in the late afternoon, Davidson's trial counsel revealed

yet another missing page from V.P.'s journal. (Tr. 412-413). When the State objected that another

page had been presented before the jury without the State's advance knowledge, Davidson's trial

counsel responded that "I thought they had it. I would take it off except that I don't know what the

proper vehicle for taking it off is." (Tr. 413). The Court admonished that the missing page would

not be part of the jury's consideration. Id. The Court then asked Davidson's trial counsel if the

parties should take a few minutes to "give them the stack that you have so that they can compare it

to what they have so that we don't have any other dates?" Id. Davidson's trial counsel denied any

knowledge as to why the State did not receive everything. Id. She then admitted that she had

additional sheets in her hand that the State did not have, but asserted that she wouldn't use them.

(Tr. 415). The Court explained to her that setting those sheets aside was not good enough; that the

withheld documents could have been material to the direct or cross exaniination of any of the

witnesses and were part of a larger document, the journal, which Davidson's trial counsel had

already used. (Tr. 415-416). The Court instructed Davidson's trial counsel to turn over all pages

from V.P.'s journal to the State so that the prejudice, if any, could be determined. (Tr. 418-419).

The parties stipulated, after reviewing the missing pages, that Davidson's trial counsel had

withheld from the State at least 42 dates from V.P.'s journal. (Tr. 420). Judge Mclntosh then

engaged in a long colloquy with Davidson's trial counsel, in which he explained how her failure to

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produce the entire journal prejudiced the State and why that prejudice could not be cured by

recalling all of the State's witnesses or via a jury instruction. (Tr. 425-433). Citing Criminal Rule

16, Judge Mchitosh then granted the State's motion for a mistrial, explaining that:

(1) V.P.'s journal was in the possession of Davidson's trial counsel and she failed to

produce at least 42 dates from that journal;

(2) V.P.'s journal was highly material to the case, and was discussed extensively by the

State's witnesses;

(3) Because the journal is one document, it should have been produced in its entirety, and

no basis existed to justify the redaction or removal of certain pages, particularly given

that Davidson's trial counsel later attempted to use those pages at trial;

(4) Davidson's trial counsel did not even tell the State that the journal she prodiiced was

incomplete-the State and the Court would not have known any pages were missing but

for her attempt to use them at trial;

(5) Davidson's trial counsel could not argue that the missing pages were immaterial where

she herself used or attempted to use at least seven pages on cross-examination;

(6) Part of the State's theory was that V.P.'s journal was incomplete and therefore

unreliable, but it now appeared that a complete version existed; and

(7) The State's lead investigative witness relied on the excerpts of V.P.'s joumal when

preparing his charts and spreadsheets which already were presented to the jury.

(Tr. 432-435).

The matter was reset for trial.

Before retrial, Davidson filed a motion to dismiss the indictment. The trial court denied the

motion, ruling that the mistrial was manifestly necessary due to the "magnitude of [defense]

5

counsel's failure and the timing of its disclosure," detailing the Rule 16 violation and its impact on

the trial. (Aug. 22, 2011 Order). The parties retumed the following day for trial. Davidson filed a

motion in limine requesting exclusion of V.P.'s journal. The trial court denied that motion, and

Davidson then entered a no-contest plea to theft by deception, a felony of the fifkh degree. (Aug.

23, 2011 Tr. 53, 58). The trial court imposed a sentence of twelve (12) months; suspended for a

three (3) year term of community control, and a period of thirry (30) days of home incarceration.

The court also ordered Davidson to pay $3,905.76 in restitution to ODJFS. (Aug. 23, 2011 Tr. 79).

Davidson appealed her conviction, and the Tenth District affirmed. State v. Davidson,

2012-Ohio-2998, at ¶ 4.

1. THIS CASE DOES NOT PRESENT A SUBSTANTIAL CONSTITUTIONALQUESTION OR A QUESTION OF PUBLIC OR GREAT GENERAL INTEREST

A. Reversal of the Court of Appeals would benefit only Defendant.

This is not an appropriate case for discretionary review because reversal of the decision

below affects only Davidson and does not implicate broader issues. Davidson asserts that no

manifest necessity exists to declare a mistrial where: (1) trial counsel produces only parts of a

key trial document in discovery; (2) such failure is discovered on the second day of trial; (3) trial

counsel affirmatively represents to the State and to the Court that no other pages were withheld;

(4) it is discovered during cross-examination of the state's last witness on day four of the trial

that, in fact, 42 entries from the document were withheld; (5) throughout the State's case the

State examined witnesses concerning the document; (6) trial counsel used or attempted to use the

missing pages to impeach the testimony of the State's witnesses; and (7) numerous State exhibits

and testimony already shared with the jury relied on an incomplete version of the document.

A ruling from this Court that, under these highly specific facts, a mistrial was or was not

manifestly necessary would affect no one but Davidson. This Court has opined that matters of

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limited scope are not of great public or general interest. Smith v. Leis, 111 Ohio St.3d 493, 2006-

Ohio-6113, 857 N.E.2d 138, at ¶ 14. Instead, discretionary review is targeted to "[n]ovel

questions of law or procedure [that] appeal not only to the legal profession but also to this court's

collective interest in jurisprudence." Noble v. Colwell, 44 Ohio St.3d 92, 94, 540 N.E.2d 1381

(1989); see also State ex rel. White v. Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.2d

508, at ¶ 17 (matter is not of great public or general interest when it involves a "rare problem.").

Moreover, this Court recently addressed the scope of the trial judge's discretion to

declare manifest necessity for a mistrial in State v. Gunnell, (not yet reported in Ohio St.3d),

2012-Ohio-3236, ¶ 26. Gunnell exemplifies that rare case in which this Court can offer system-

wide guidance about mistrials. In Gunnell, a mistrial was declared based upon a juror having

done outside research during a break in deliberation. The case was of great public or general

interest because modem jurors risk exposure to many opportunities for bias by outside sources

and because the trial court and counsel inquired of the juror in a manner that was "limited and

ineffective." Id. ¶ 32. Here, by contrast, Davidson's trial counsel failed to comply with Criminal

Rule 16 and then compounded the error by misrepresenting to the State and the Court that

nothing further was being withheld, later attempting to use withheld pages at the very end of the

State's case. This is neither a common issue nor did the Court fail adequately to inquire; the

record is clear that the Court made every effort to avoid a mistrial.

B. The appeal raises no substantial constitutional question because it turns onthe application of well-settled law to the unique facts of the case.

Davidson's appeal raises no substantial constitutional question. Although the decisions

below implicate Defendant's right to be free from double jeopardy, the question presented

requires only application of settled case law to the unique facts presented below. This court has

described the inquiry as whether "the trial court's conclusion that there was a manifest necessity

7

for a mistrial [contravened] clearly established federal law." State v. Ross, 128 Ohio St.3d 283,

2010-Ohio-6282, 943 N.E.2d 992, at ¶ 5, n.1, citing Ross v. Petro, 515 F.3d 653, 671 (6' Cir.

2008). Moreover, the fact that an appeal touches on a constitutional question does not make that

question "substantial." See, e.g., State v. Poole, 127 Ohio St.3d 1209, 2010-Ohio-4988, 936

N.E.2d 501, at ¶ 1(appeal regarding Fifth Amendment privilege against self-incrimination

dismissed as improvidently granted); State ex rel White v. Koch, 2002-Ohio-4848, at ¶ 17

(challenge to court order prohibiting spending public money on mailing implicates speech but

does not raise a substantial constitutional question). This is not a close case for manifest

necessity; Judge McIntosh did not abuse his discretion by holding that the withholding and

misrepresentation of a key document by the defense required a mistrial.

II. ARGUMENT

Plaintiff-Appellee State of Ohio's Proposition of Law No. I:

The trial court did not abuse its discretion in granting a mistrial because theactions of Davidson's trial counsel created a manifest necessity for a new trial.

Judge McIntosh did not abuse his discretion in granting a mistrial based on manifest

necessity where the jury, the State, and the Court were misled by Davidson's trial counsel's

misrepresentations and omissions in discovery and the harm could not be cured once the full

extent of such misrepresentations and omissions became clear. There is no double jeopardy

problem here.

Jeopardy attaches in a jury trial after the jury is sworn. State v. Calhoun, 18 Ohio St.3d

373, 375, 481 N.E.2d 624 (1985); see also Crist v. Bretz, 437 U.S. 28, 29 (1978). When a

mistrial is declared without the defendant's consent, a retrial is permitted where there is a

"manifest necessity" for ordering a mistrial. State v. Widner, 68 Ohio St.2d 188, 189, 429

N.E.2d 1065 (1981), citing Arizona v. Washington, 434 U.S. 497, 505 (1978) (other citations

8

omitted). "[M]istrials need be declared only when the ends of justice so require and afair trial is

no longer possible ***." State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995)

(emphasis added). A mistrial declared without the defendant's consent does not bar retrial under

the double jeopardy clause unless the prosecutor intentionally provoked a mistrial or the judge

abused his discretion in granting a mistrial. State v. Glover, 35 Ohio St.3d 18, 21, 517 N.E.2d

900 (1988).

In Glover, the Court noted that great deference should be given "to the trial court's

discretion in this area, in recognition of the fact that the trial judge is in the best position to

determine whether the situation in his courtroom warrants the declaration of a mistrial." Id. at 19

(citing Widner, supra at 190). The Glover court expained, "[i]n examining the trial judge's

exercise of discretion in declaring a mistrial, a balancing test is utilized, in which the defendant's

right to have the charges decided by a particular tribunal is weighed against society's interest in

the efficient dispatch of justice." Id., citing Calhoun, 18 Ohio St.3d at 376.

A mistrial was granted in this case due to Davidson's trial counsel's failure to provide the

State with 42 pages of a journal that was material to the trial. Criminal Rule 16(A) provides,

[t]his rule is to provide all parties in a criminal case with the informationnecessary for a full and fair adjudication of the facts, to protect the integrity ofthe justice system and the rights of defendants, and to protect the well-being ofwitnesses, victims, and society at large. All duties and remedies are subject to astandard of due diligence, apply to the defense and prosecution equally, and areintended to be reciprocal. (Emphasis added.)

To have a full and fair adjudication of the facts, the criminal rules order that both parties shall

comply with the discovery rules. Id. The defendant must turn over evidence that it intends to

use at trial, Crim. R. 16(H), including any "documents" and any written statement of a witness

that the defendant reasonably anticipates calling at trial. Crim. R. 16(H)(1), (H)(5).

9

Davidson effectively conceded that V.P.'s journal fell within the province of Criminal

Rule 16 by producing excerpts of that journal to the State before trial. (Tr. 375-376). It appears

that she either expected to use the journal at trial, or, more likely, considered it a statement of a

witness that she intended to call at trial. Davidson admits that if the journal was the written or

recorded statement of a defense witness disclosure is required, but argues that nothing in the

record suggests as such. Defendant's Memorandum in Support of Jurisdiction at 11. In fact,

however, the only response to discovery that Davidson filed in the trial court appears to be a list

of three witnesses, including V.P., her husband, and Davidson herself. (Docket case No. 10-CR-

3011, filed February 14, 2011). Because Davidson intended to call V.P. as a witness, V.P.'s

journal, a written statement, was required to be produced under Crim. R. 16(H)(5). It was also

required to be produced because it is clear on this record, and can be inferred from the

materiality of the journal itself and how it was used at trial by the defense, that Davidson

intended to use the journal at trial. Crim. R. 16(H)(1).

Moreover, this is not the ordinary case where the defendant selectively produces

documents based on the fact that defendant's trial counsel does not know in advance whether a

certain document will be needed at trial. Instead, Davidson's trial counsel elected to produce a

document, V.P.'s journal, in an incomplete form, without alerting the State or the Court that

portions of that document had been expunged. Nothing in Criminal Rule 16 suggests that a party

can selectively produce portions of one material document, thus misleading other parties, the

jury, and the Court into a mistaken belief that the pages produced constitute a complete

document, or the only available portions of that document. Criminal Rule 16 does not permit a

party to "selectively edit the statements it provides." State v. Glander, 139 Ohio App.3d 490,

496, 744 N.E.2d 265 (12' Dist. 2000) (sanctions against prosecutor who produced incomplete

10

summary of defendant's statement). In addition, by failing to alert the State that the document

produced was significantly redacted, Davidson's trial counsel denied the State its right to. file a

timely motion.to enforce discovery, prior to the trial, under Crim. R. 16(L).

Thus, the catalog of cases that Davidson cites for the proposition that Rule 16 does not

require a defendant to produce impeachment evidence is inapposite. No case suggests that a

defendant can selectively produce only excerpts of a document she intends to use at trial. No

case involves a defendant's misleading production of a partial document in discovery and later

attempt to use missing pages to impeach witnesses. Each case stands for the limited principle

that neither a prosecutor nor defense counsel is required to disclose documents that are used

purely for impeachment when such documents do not fall into another category for mandatory

disclosure under Criminal Rule 16 and when the attorney does not anticipate, until testimony is

presented at trial, that such document will be material. See State v. Pierce, 2011-Ohio-4873, 968

N.E.2d 1019, at ¶ 74 (2d Dist.); State v. Blazer, 2010-Ohio-6367, at ¶ 25 (8`s Dist.); State v.

Samatar, 152 Ohio App.3d 311, 329, 787 N.E.2d 691, at ¶ 54 (10th Dist. 2003); State v. Kerr,

2002-Ohio-4190, at ¶ 36 (8ih Dist.); Wisconsin v. Hillensheim, 492 N.W.2d 381, 388 (Wis.

1992); Gray v. Kentucky, 203 S.W.3d 679, 684-85 (Ky. 2006).

In addition, even if the journal pages were treated as a series of individual documents,

there were six entries in total that Davidson used or attempted to use at trial that had not been

previously provided to the State. (Tr. 176:23-177:6; 415:10-20). Davidson's trial counsel

attempted to use these entries to impeach the credibility of several of the State's witnesses,

specifically the other home health aides who worked for V.P. and investigator Frank Kopus. Id.

The State provided State's Exhibit M-1 (the journal) to Defendant two months prior to trial, and

again at the beginning of trial. (Tr. 421). Davidson's trial counsel thus had full knowledge of

11

what documents had been provided to the State and should have exercised due diligence in

ensuring that any documents she anticipated using at trial were properly disclosed.

Davidson's trial counsel asserted that her failure to produce the complete journal was an

unintended copying error, a statement upon which Judge McIntosh expressed doubt. (Tr.

176:23-25; 177:21-178:6; 433:5-7). However, even after discovering on the second day of trial

that pages were missing, she failed to exercise due diligence to ensure that the State had the

complete journal. Instead, she represented to the State and the court that no further pages were

missing. (Tr. 171:10-17). On the third day of trial, the State asked, "[f]irst, I just want to make

sure there are no other documents that are going to be used that we don't have." Davidson's

counsel responded, "No. Not that 3'm aware of. I mean, I don't think so." (Tr. 212). The State

relied on those representations in determining what evidence to present, how to question the

witnesses, and its overall theory of the case. It was not until day four of the trial, late in the

afternoon, that it was discovered there were 42 entries withheld from the State. (Tr. 420).

At that point in the trial there was no other remedy-no other option for the trial court but

to grant a mistrial. As the trial court notes in its opinion, had this information been disclosed

prior to trial, or even on the first or second day of trial, the situation might have been quite

different. (Tr. 426-427). Judge McIntosh held correctly that the State had been prejudiced

because the State relied upon this evidence "in prepping [its] witnesses, had relied upon it in

creating documents, charts, and graphs***." (Tr. 427-428). The disclosure of additional

evidence during cross-examination of the State's final witness, on the last day of the State's case

in chief, severely prejudiced the state.

In addition, there had already been extensive testimony regarding the journal. After

discovering that 42 entries existed that had not been provided to the state, the State realized that

12

some of this prior testimony was false, though Davidson's trial counsel did nothing to correct the

errors as they were being presented to the jury. Davidson's trial counsel solicited testimony from

Frank Kopus as follows (Tr. 400:24-401:1):

Q: I sent you the notes from [V.P.], correct?

A: Yes.

But Davidson's trial counsel did not send Kopus "the notes;" she sent excerpts from the

notes. Kopus also testified that V.P. did not make a journal entry every day (Tr. 379):

Q: Is there a note every day?

A: No.

But this appears to be incorrect, based on the complete version of V.P.'s journal. Based on

reviewing State's Exhibit M-1, V.P. testified about various days missing from her journal. (Tr.

179:19-21; 194-196). V.P. testified that on some days she didn't write notes. Id. In light of the

42 additional entries, this testimony is inaccurate and should not be considered by the jury.

Special Agent Kopus also gave extensive testimony about his comparison of each of the

home health aides' individual calendars with V.P.'s journal and the billings the home health

aides submitted to the State. (Tr. 375-390). Specifically, he compared each aide's hours with

V.P.'s log to identify any discrepancies. (Tr. 375-380). This testimony would have inevitably

changed based on the addition of 42 entries. The State's entire theory of the case had to change

when it was finally apprised of the additional evidence. In discussing whether a mistrial should

be granted, the State informed the trial court,

[o]ur argument to the jury was going to be that none of these documents for V.P.should be relied on at all. There are so many missing notes that we couldn'tverify. They are incomplete. They're inaccurate. To stand in front of the jury toargue that in closing arguments today or next week at this point would be falsebecause we know that 42 notes are missing, 42 dates are missing. So I don't thinkwe can do that in good conscience. (Tr. 431)

13

Absent a mistrial, the State would have had to bring most of its witnesses back to testify, if that

was even possible. Subpoenas would have had to be re-issued and the witnesses might have

been unavailable. As the trial court noted, the credibility of the witnesses would be tainted upon

being questioned a second time. (Tr. 429:2-9). There is no curative instruction for that. The

State was prejudiced by the failure of Davidson's counsel to comply with the rules of discovery.

Finally, the public interest is clearly served by leaving the decisions below in place. The

"`central purpose of a criminal trial is to decide the defendant's guilt or innocence."' State v.

Williams, 38 Ohio St.3d 346, 349, 528 N.E.2d 910 (1988), quoting Delaware v. Van Arsdall, 475

U.S. 673, 681 (1986). Defendant's trial counsel sat silently while the State used an incomplete

exhibit, questioning various witnesses at length thereon, offered its summary exhibits with

reference thereto, and presented a theory of the case to the jury which cast the exhibit as

inaccurate, while she knew or should have known that a complete copy of the document was

available and in her possession. Under these circumstances, the "defendant's valued right to

have his trial completed by a particular tribunal must *** be subordinated to the public's interest

in fair trials designed to end in just judgments." State v. Lovejoy, 79 Ohio St.3d 440, 445, 683

N.E.2d 1112 (1997), quoting Richardson v. United States, 468 U.S. 317, 324-25 (1984).

Permitting a criminal defendant to reap a windfall due to the misconduct of her own counsel does

not serve the public interest or the interest of justice.

Based on the fact that trial counsel failed to comply with the rules of discovery, the fact

that the evidence withheld was material-to the trial, and the fact that there was no other remedy

available to the trial court, Judge McIntosh properly held there was a manifest necessity to grant

a mistrial and did not abuse his discretion.

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CONCLUSION

For these reasons, the State respectfully requests that this Court decline jurisdiction.

Respectfully submitted,

MICHAEL DeWINE ( 0009181)Attorney General of Ohio

Mar tsa . Flaherty* (0080903)*C uns l of Record

Je R. Lesperance (0085765)Assistant Attorneys General150 East Gay Street, 17th FloorColumbus, Ohio 43215Tel: 614-466-0722; Fax: 614-644-9973maritsa.flaherty@ohioattomeygeneral.govj eannine.lesperance@ohioattorneygeneral. gov

Counselfor Plaintiff-Appellee State of Ohio

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CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Memorandum in Opposition to Jurisdiction was

served by U.S. mail this 12th day of September, 2012, upon the following counsel:

Yeura R. Venters (0014879)Timothy Pierce (0041245)Public DefendersFranklin County Ohio373 South High Street, 12th FloorColumbus, OH 43215

R. Lest Attom

erance (0085765)y General