State v. Hughes

• Decision Date: 21 March 2019
• Docket Number: No. 107697,107697
• Parties: STATE of Ohio, Plaintiff v. Garrett HUGHES, Jr., Defendant-Appellee. [Appeal by C.M.]
• Court: Ohio Court of Appeals

134 N.E.3d 710

2019 Ohio 1000

STATE of Ohio, Plaintiff

v.Garrett HUGHES, Jr., Defendant-Appellee.

[Appeal by C.M.]

No. 107697

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: March 21, 2019

JOURNAL ENTRY AND OPINION

LARRY A. JONES, SR., P.J.:

{¶ 1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1. This appeal presents the question of whether the rights afforded to crime victims under Article I, Section 10a of the Ohio Constitution ("Marsy's Law") are enforceable by way of an appeal filed by a victim from an order issued in a criminal case. Alleged victim-appellant in this criminal matter, C.M., appeals from the trial court's order requiring her to provide medical provider names to the court so that her medical records for the previous three years can be subpoenaed by defense counsel. For the reasons that follow, C.M. lacks standing to pursue this appeal and we dismiss the appeal without reaching its merits.

{¶ 2} The following procedural history is relevant. In August 2017, defendant-appellee Garrett Hughes was charged with various crimes in the alleged rape and beating of C.M. In May 2018, Hughes filed a motion to secure C.M.'s psychiatric records from the state pursuant to Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). On June 25, 2018, the trial court ordered the state to produce the records and deliver them to the court for an in camera inspection. Counsel for C.M. subsequently entered a notice of appearance and opposed Hughes's motion.

{¶ 3} The trial court scheduled a hearing for September 14, 2018, and ordered counsel for C.M. to bring "all records pertaining to the victim under seal for court review." During the hearing, the court stated that C.M. must

disclose who her medical providers for medical psychiatric treatment have been for the last three years * * * by October 1st. That a subpoena will be prepared based upon that information for an in camera review of the records prior to anybody seeing the records as to determine whether or not there is any issue in those records that should be revealed to the defense.

The court further stated that it was giving C.M.'s attorney "an order [to] request from [C.M.] that information for the purposes of turning it over to the court so that we can prepare the appropriate subpoena to be issued and see what happens."

{¶ 4} The court then clarified that it was defense counsel that would subpoena the medical records:

Court: I'll wait until October 1st to see the response [from C.M.] so [defense counsel] will have the opportunity to issue a subpoena to obtain the records. I will then perform an in camera inspection [of] the records [that] are forthcoming. If they're not forthcoming, we'll have to deal with it that way.

Defense Counsel: Judge, that information if it's going to be provided will be provided to the court and I should get that information from the court to prepare the subpoena?

Court: Right.

{¶ 5} The court's September 17, 2018 journal entry ordered, in part: "Hearing called on defendant's motion for specific Brady material, filed 5-21-2018. Court orders defendant and victim advocate attorney * * * to provide to court victim's medical information by 10-1-18. Failure to do so may result in sanctions."

{¶ 6} Thus, the court ordered C.M.'s attorney, not the state, to secure the names of C.M.'s medical providers for the last three years so that defense counsel could subpoena her records.

{¶ 7} C.M. filed a notice of appeal with this court and an emergency motion to stay with the trial court. The trial court granted C.M.'s motion to stay. Hughes filed a motion to reduce his bond with the trial court, which the court did not rule on. He also filed a motion for appellate bond, which this court denied. Hughes remains incarcerated.

{¶ 8} C.M., the prosecutor's office, and Hughes agree that C.M., as the alleged victim in this case, is not a party to the underlying criminal case, Cuyahoga C.P. No. CR-17-620674-A. Nonetheless, C.M. filed a notice of appeal, seeking redress under the provisions of Marsy's Law. On appeal, C.M. raises the following assignments of error:

I. The trial court erred in its Discovery Order by compelling Victim C.M. to respond to a defense discovery request in violation of Article I, Section 10a(A)(1) and (6) of the Ohio Constitution.

II. The trial court erred in its Discovery Order when it compelled Victim C.M. to waive attorney-client privilege and victim's counsel to disclose C.M.'s privileged medical information to the trial court in violation of Ohio Revised Code 2317.02(A) and (B) and the common law attorney-client privilege.

{¶ 9} As a threshold matter, we must address the issue of standing. The question of a victim's standing to appeal implicates this court's subject matter jurisdiction. Article IV, Section 4(B) of the Ohio Constitution vests courts with jurisdiction "over all justiciable matters." "A matter is justiciable only if the complaining party has standing to sue." ProgressOhio.org, Inc. v. JobsOhio , 139 Ohio St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, ¶ 11, citing Fed. Home Loan Mtge. Corp. v. Schwartzwald , 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 41 ; see also State ex rel. Jones v. Suster , 84 Ohio St.3d 70, 77, 701 N.E.2d 1002 (1998) ("Standing is a threshold question for the court to decide in order for it to adjudicate the action.").

{¶ 10} "Only litigants with standing are entitled to have a court determine the merits of the claims they have presented." In re S.G.D.F. , 10th Dist. Franklin Nos. 16AP-57 and 16AP-123, 2016-Ohio-7134, 2016 WL 5720391, ¶ 11, citing Moore v. Middletown , 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 20. A party has standing when he or she has a " ‘right to make a legal claim * * *.’ " Ohio Pyro Inc. v. Ohio Dept. of Commerce , 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27, quoting Black's Law Dictionary 1442 (8th Ed.2004). "Similarly, a party who attempts to appeal a judgment must meet standing requirements to invoke the jurisdiction of the appellate court." In re S.G.D.F. at id. , citing Ohio Contract Carriers Assn. v. Pub. Util. Comm. of Ohio , 140 Ohio St. 160, 161, 42 N.E.2d 758 (1942).

{¶ 11} This court's appellate jurisdiction is limited to that provided by law to affirm, modify, or reverse judgments or final orders of courts of record inferior to the court of appeals. Ohio Constitution, Article IV, Section 3 (B)(2). Our power to hear appeals, however, does not tell us who may perfect an appeal. See United States v. Kovall , 857 F.3d 1060, 1068 (9th Cir.2017).

{¶ 12} Under Ohio law, the parties in a criminal case are the defendant and the state, not the victim. State v. Roach , 6th Dist. Lucas No. L-16-1303, 2017-Ohio-8511, 2017 WL 5192040, ¶ 13 ; Grubb v. Buehrer , 10th Dist. Franklin No. 15AP-576, 2016-Ohio-4645, 2016 WL 3522284, ¶ 20 ; State v. Godfrey , 3d Dist. Wyandot No. 16-12-06, 2013-Ohio-3396, 2013 WL 4007551, ¶ 16 ; State v. Williams , 7th Dist. Mahoning No. 09 MA 11, 2010-Ohio-3279, 2010 WL 2749598, ¶ 32 ; State v. Sandlin , 4th Dist. Highland No. 07CA13, 2008-Ohio-1392, 2008 WL 786859, ¶ 29. Additionally, the state constitution specifically provides that all prosecutions shall be conducted by and in the name of the state of Ohio. Ohio Constitution, Article IV, Section 20. Thus, the appropriate parties in a criminal proceeding are the state and the defendant. Victims are not parties. Williams at ¶ 30. "It is not the victim's interests that are being represented in a criminal case, but rather those of the people of the State of Ohio." Id. at ¶ 31.

{¶ 13} The constitutional amendment known as Marsy's Law became effective on February 5, 2018, and expands the rights afforded to victims of crimes. Marsy's Law provides that victims of crime have the right:

(A)(1) to be treated with fairness and respect for the victim's safety, dignity and privacy;

* * *

(6) except as authorized by section 10 of Article I of this constitution, to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused;

(B) The victim, the attorney for the government upon request of the victim, or the victim's other lawful representative, in any proceeding involving the criminal offense or delinquent act against the victim or in which the victim's rights are implicated, may assert the rights enumerated in this section and any other right afforded to the victim by law. If the relief sought is denied, the victim or the victim's lawful representative may petition the court of appeals for the applicable district, which shall promptly consider and decide the petition.

Ohio Constitution Article I, Section 10a.

{¶ 14} "Marsy's Law does not make a victim a party to a case. The victim's role in a criminal case will not change, they are simply a person with certain rights. The prosecutor remains in control of the case and handles all decision-making in the prosecution of the crime." (Emphasis sic.) Marsy's Law for Ohio, L.L.C., Marsy's Law for Ohio Facts , https://www.supremecourt.ohio.gov/Boards/Sentencing/Materials/2017/March/marsysLawFactSheet.pdf (accessed Feb. 12, 2019). Thus, while Marsy's Law expands the rights of victims, the law does not make a victim a party to a criminal action.

{¶ 15} In the case at bar, C.M. filed her notice of appeal, alleging that Marsy's Law provided her a vehicle by which she could appeal the trial court's ruling that she disclose the names of her medical providers and medical records for in camera review. (The prosecutor's office did not file a notice of appeal in this case.)¹

{¶ 16} Since the passage of the constitutional amendment, the Ohio legislature has not passed legislation related to Marsy's Law to include victims among those entitled to appeal, nor has it passed a new statute extending appellate rights to victims or conferring party status on them. Marsy's Law provides that a victim, the...