State v. Donahue, CR 12 581696

CourtCourt of Common Pleas of Ohio
Writing for the CourtJohn P. O'Donnell, J.
Docket NumberCR 12 581696
PartiesSTATE OF OHIO, Plaintiff, v. JEFFREY J. DONAHUE, Defendant
Decision Date25 March 2014

STATE OF OHIO, Plaintiff,
v.

JEFFREY J. DONAHUE, Defendant

No. CR 12 581696

Court of Common Pleas of Ohio, Cuyahoga

March 25, 2014


JOURNAL ENTRY

John P. O'Donnell, J.

STATEMENT OF THE CASE

Defendant Jeffrey J. Donahue was indicted on January 24, 2014. He is charged with having a weapon under disability, tampering with evidence and carrying a concealed weapon. All three offenses were allegedly committed on January 9, 2014.

He appeared at his January 30 arraignment with retained counsel and at a pre-trial conference on February 13 a trial was set for April 2. On March 6 the defendant filed a " motion for an order requiring DNA testing of the alleged weapon found in the police cruiser." The plaintiff has not opposed the motion and this entry follows.

STATEMENT OF THE FACTS

The motion is devoid of evidence. However, an affidavit of Cleveland police detective David Schwark is part of the case file. According to that affidavit, Donahue was arrested and placed into the rear of a police car. Donahue was then seen " moving around a lot" and " laying sideways." Because of his actions the rear seat of the police car was searched and the police found Donahue's keys and a loaded handgun under the seat.

The defendant's motion suggests that the affidavit is a reasonable summary of the state's anticipated evidence at trial because he asks for DNA testing " of the weapon allegedly found in the back of the police patrol car during [his] detention." [1]

LAW AND ANALYSIS

The defendant's motion is only two sentences long. In it, he " moves this Court to order DNA testing" [2] of the gun at the state's expense on the basis that a DNA test is " crucial to [his] defense of this case, namely, that the gun at issue did not belong to him, that he never saw the gun or possessed the gun at any time either prior to, during, or after his arrest." [3]

Missing from the motion is a citation to any law that entitles him to this test at the expense of the state. Since I am not aware of any statute or decisional law conferring such an unconditional right on a defendant, I assume he is seeking the test at the state's cost under the authority of Ake v. Oklahoma , 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake , The United States Supreme Court recognized that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the state proceeds against an i...

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