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. [email protected]
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).
2
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
3
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
4
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
6
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.
14
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: [email protected] eannine.lesperance@ohioattorneygeneral. gov
Counselfor Plaintiff-Appellee State of Ohio
15
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
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