State ex rel. Swopes v. McCormick

• Decision Date: 28 January 2022
• Docket Number: 110860
• Citation: 2022 Ohio 306
• Parties: STATE OF OHIO, EX REL., DOMINIQUE SWOPES, Relator, v. HONORABLE TIMOTHY MCCORMICK, Respondent.
• Court: Ohio Court of Appeals

2022-Ohio-306

STATE OF OHIO, EX REL., DOMINIQUE SWOPES, Relator,
v.
HONORABLE TIMOTHY MCCORMICK, Respondent.

No. 110860

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 28, 2022

Writ of Mandamus Motion Nos. 550835 and 551874 Order No. 552053

Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for relator.

Flowers & Grube, Paul W. Flowers, and Louis E. Grube, for respondent.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, JUDGE

{¶ 1} Dominique Swopes has filed a complaint for a writ of mandamus. Swopes seeks an order from this court that requires Judge Timothy McCormick to

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overturn his judgment with regard to a discovery matter and DNA testing as rendered in State v. Swopes, Cuyahoga C.P. No. CR-19-638518. Specifically, Swopes seeks: 1) a reversal of Judge McCormick's discovery order that granted the request by the Cuyahoga County Prosecuting Attorney ("prosecutor") to conduct additional DNA testing on genetic material preserved on behalf of Swopes; and 2) issue an order that requires Judge McCormick to allow Swopes to independently test the preserved genetic material. Judge McCormick has filed motions to dismiss that are granted for the following reasons.

I. Procedural History and Factual Background

{¶ 2} On March 29, 2019, Swopes was indicted for five counts of aggravated murder with felony murder specifications (R.C. 2903.01(A)), two counts of aggravated burglary (R.C. 2911.12(A)(1)), two counts of aggravated arson (R.C. 2909.02(A)(1)), one count of aggravated robbery (RC. 2911.01(A)(3)), one count of tampering with evidence (R.C. 2921.12(A)(1)), one count of receiving stolen property (R.C. 2913.51(A)), one count of murder (R.C. 2903.02(B)), and one count of felonious assault (R.C. 2903.11(A)(1)). Swopes remains incarcerated while he awaits trial on the charged offenses.

{¶ 3} As part of a criminal investigation, a DNA swab was taken from the doorknob of the home where two victims died in a suspected arson fire. The DNA sample was processed by the Ohio Bureau of Criminal Investigation ("BCI") and 50 microliters of genetic material were extracted and equally divided for testing purposes. BCI engaged in genetic testing, on behalf of the prosecutor, of 25

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microliters while the remaining 25 microliters were preserved on behalf of Swopes. All 25 microliters of BCI's extracted DNA sample were consumed during testing.

{¶ 4} On June 2, 2020, the prosecutor filed a motion requesting permission to conduct additional DNA testing on the sample preserved on behalf of Swopes. The trial court conducted two hearings, on November 12, 2020, and November 23, 2020, at which times testimony and evidence was adduced with regard to various testing procedures that could be employed to further analyze the remaining sample. On December 16, 2020, Judge McCormick granted the prosecutor's motion to conduct additional testing on the DNA sample preserved for Swopes and held that

[t]he State's motion to consume the remaining 25 [microliters] of Item 9.1 for submitting it to Bode Technology is granted. Bode is to inform the defense in writing what specific test they will be conducting two weeks prior to conducting it. The defense is permitted to have its DNA analyst observe the testing in-person or via video

{¶ 5} On December 20, 2020, Swopes filed an interlocutory appeal from Judge McCormick's order allowing for additional testing on the preserved DNA sample. On February 8, 2021, this court dismissed Swopes interlocutory appeal and held that

[m]otion by appellee to dismiss appeal for lack of a final appealable order is granted. The trial court's pretrial discovery order allowing the State's consumption of the remaining DNA source does not constitute an order pursuant to Crim.R. 42(E), which allows for appeal of the trial court's refusal to appoint an expert in a capital case. Here, the trial court is permitting the appellant to have an expert observe the testing of the DNA. The order also does not constitute a provisional remedy. Should appellant be convicted, he will be afforded a meaningful and effective remedy upon review of his direct appeal. See State v. Gaines, 8th Dist. Cuyahoga No. 91179, 2009-Ohio-622; State v. Abercrombie, 8th Dist. Cuyahoga No. 88625, 207-Ohio-5071, P23-26; State v.

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Warren, 11th Dist. Trumbull No. 2010-T-027, 27-29 [2011-Ohio-4886]. Appeal dismissed. State v. Swopes, 8th Dist. Cuyahoga No. 110172, motion No. 543556 (Jan. 19, 2021).

{¶ 6} On July 21, 2021, the prosecutor filed a notice of intent to proceed with the additional testing of the DNA sample preserved on behalf of Swopes. On September 21, 2021, Judge McCormick issued an order that provided "[t]he state shall refrain from consuming the remaining DNA evidence pending further order of the court." On September 28, 2021, Swopes filed his complaint for a writ of mandamus. On November 29, 2021, Judge McCormick filed a motion to dismiss. On January 5, 2022, Swopes filed an amended complaint for mandamus. On January 6, 2022, Swopes filed a brief in opposition to Judge McCormick's motion to dismiss. On January 12, 2022, Judge McCormick filed a renewed motion to dismiss and reply in support of motion to dismiss action in mandamus.

II. Procedural Defects

{¶ 7} A review of Swopes's original complaint for mandamus fails to reveal compliance with R.C. 2969.25. R.C. 2969.25(A) requires Swopes to file an affidavit listing each civil action or appeal of a civil action he has filed in the previous five years in any state or federal court, as well as information regarding the outcome of each civil action or appeal. Compliance with R.C. 2969.25(A) is mandatory, and the failure to comply subjects Swopes's complaint to dismissal. State ex rel. Bey v. Loomis, Slip Opinion No. 2021-Ohio-2066; State ex rel Ware v. Pureval, 160 Ohio

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St.3d 387, 2020-Ohio-4024, 157 N.E.3d 714; State ex rel McDougald v. Greene, 155 Ohio St.3d 216, 2018-Ohio-4200, 120 N.E.3d 779.

{¶ 8} In addition, Swopes has failed to comply with R.C. 2969.25(C), which requires that an inmate file a certified statement from his prison cashier setting forth the balance in his private account for each of the preceding six months. The failure to comply with R.C. 2969.25(C) constitutes sufficient reason to deny a writ claim, deny indigency status, and assess costs against Swopes. State ex rel Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844 N.E.2d 842; State ex rel. Hunter v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d 176, 2000-Ohio-285, 724 N.E.2d 420. Finally, noncompliance with R.C. 2969.25(A) and 2969.25(C) cannot be cured by amendment of the original complaint:

The requirements of RC. 2969.25 are mandatory and failure to comply with them requires dismissal of an inmate's complaint. State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258, 259, 1999-Ohio-53, 719 N.E.2d 544 (1999), citing State ex rel Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422, 1998-Ohio-218, 696 N.E.2d 594 (1998). As held by the court of appeals, the affidavit required by RC. 2969.25(A) must be filed at the time the complaint is filed, and an inmate may not cure the defect by later filings. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, ¶ 9, 797 N.E.2d 982 (an inmate's "belated attempt to file the required affidavit does not excuse his noncompliance. See RC. 2969.25(A), which requires that the affidavit be filed '[a]t the time that an inmate commences a civil action or appeal against a government entity or employee'" [emphasis sic]).

Nor is this a dismissal on the merits requiring prior notice, as asserted by [the inmate]. Because the failure to comply with the mandatory requirements of R.C. 2969.25 cannot be cured, prior notice of the dismissal would have afforded [the inmate] no recourse.

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State ex rel Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-3735, 17 N.E.3d 581, ¶ 4; see also Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982; State v. Wilson, 8th Dist. Cuyahoga No. 110527, 2021-Ohio-2778. Thus, based upon Hall, Fuqua, and Wilson, Swopes was not permitted to amend his original complaint for...