State v. Kaylynn Counts

• Decision Date: 13 October 2022
• Docket Number: 111042
• Parties: STATE OF OHIO, Plaintiff- Appellee, v. KAYLYNN COUNTS, Defendant-Appellee. [Appeal by L.T. and F.K., Named Victims]
• Court: Ohio Court of Appeals

2022-Ohio-3666

STATE OF OHIO, Plaintiff- Appellee, v. KAYLYNN COUNTS, Defendant-Appellee.

[Appeal by L.T. and F.K., Named Victims]

No. 111042

Court of Appeals of Ohio, Eighth District, Cuyahoga

October 13, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-634510-A

Synenberg & Associates, LLC, and Roger Synenberg, for appellee Kaylynn Counts.

Ohio Crime Victim Justice Center and Elizabeth A. Well, for appellants.

JOURNAL ENTRY AND OPINION

MICHELLE J. SHEEHAN, P.J.

{¶ 1} In this case, the trial court ordered appellants F.K. and L.T., the named victims in an indictment ("victims"), to submit to an inspection of their home by appellee Kaylynn Counts, the defendant in the case. The trial court's order is reversed because the wrong legal standards were applied in conducting a balancing test of the victims' rights and Counts's rights under both the federal and Ohio Constitutions. Judgment is reversed, and the cause remanded.

I. PROCEDURAL HISTORY AND RELEVANT FACTS

A. Procedural History

1. The criminal case against Counts and the discovery process

{¶ 2} Counts was indicted in the Cuyahoga County Court of Common Pleas for several counts of attempted murder and felonious assault, with the named victims F.K. and L.T. (hereinafter referred to collectively as the "victims"). The incident giving rise to the indictment occurred in the victims' home in November 2018. The parties have related in briefing to the trial court that Counts was living in the home for several months and was asked to leave. While leaving, there was a dispute about Counts's possessions. The victims reported to police that Counts was out of the house and then forced her way back in where a fight ensued, resulting in F.K. being stabbed approximately 30 times and L.T. suffering a stab wound requiring stitches. Counts disputes the victims' version of the events.

{¶ 3} During the criminal case, the state of Ohio provided discovery. Included within the discovery was body-camera footage of police officers who arrived at the end of the incident. The footage includes scenes of the interior of the home and the injuries sustained by F.K. The facts and procedural history relevant to this appeal have been set forth by this court in State ex rel. Thomas v. McGinty, 2019-Ohio-5129, 137 N.E.3d 1278 (8th Dist.) ("McGinty I "), and more recently by the Ohio Supreme Court in State ex rel. Thomas v. McGinty, 164 Ohio St.3d 167, 2020-Ohio-5452, 172 N.E.3d 824 ("McGinty II ").

B. The request for inspection of L.T.'s home and the initial trial court ruling

{¶ 4} On April 1, 2019, Counts filed a "Motion for Criminal Rule 16 Entry Upon Land for Inspection and Photograph," requesting to inspect the home where the victims reside. Counsel wanted access to the home to aid in "forensically recreating the incident" for the defense's case. The state opposed the motion, arguing that the trial court lacked authority to order access by a criminal defendant to a victim's home under Crim.R. 16. The trial court's journal entry allowing Counts and the defense team to inspect the home stated:

The parties communicate to provide 3 available days with a specific time to allow State to confer with homeowner. The state will indicate to defense counsel the date for the discovery. The court orders that bailiff shall be the court representative and be present at all times while the defendant, defense counsel and their experts are within the residence. At all times, the defendant, defense counsel and their expert shall be within the view of bailiff. The court orders that a sheriffs deputy shall assist bailiff in this procedure. The victim shall not be in the residence once the discovery process commences. The court further orders that Cleveland Police Department and County Prosecutor [personnel] may be present, but may not be within the residence when the discovery is ongoing.^[1]

C. Victims sought writ of prohibition to foreclose the discovery order

{¶ 5} In McGinty I, the victims filed an original action in this court seeking a writ to restrain the trial court from enforcing his discovery order. They argued that Article I, Section 10a of the Ohio Constitution, a.k.a. Marsy's Law, provided them the right to refuse to provide the requested discovery and that the U.S. Constitution Fourth Amendment's prohibition of unreasonable searches and seizures further prevented the trial court from permitting Counts and the defense team to have access to their residence.

{¶ 6} In considering the victims' petition, this court held that a trial court "has broad discretion, and thus the jurisdiction, over discovery matters, such that the writ of prohibition will not lie." McGinty I at ¶ 26. Relying on cases from other jurisdictions to form the decision to dismiss the petition, this court determined that a third party's privacy rights "must be weighed against a criminal defendant's rights to due process, to confront witnesses], to have compulsory process to obtain evidence, and to effective assistance of counsel." Id. at ¶ 42.

{¶ 7} The dismissal of the writ was appealed to the Ohio Supreme Court, which affirmed our dismissal of the writ in McGinty II. The Ohio Supreme Court found that the trial court acted within its jurisdiction to issue discovery. Id. at ¶ 19, 26. Of a procedural note in this case, the Ohio Supreme Court found that "Section 10a(B)'s grant of a right to 'petition the court of appeals' does not, however, mean that a writ of prohibition is the proper remedy." Id. at ¶ 30. Rather, the court found that a discovery order that implicated a victim's right under Marsy's Law could immediately appeal the order under R.C. 2505.02(B)(4). Id. at ¶ 42.

D. The trial court's second order granting Counts's motion to dismiss

{¶ 8}Following the Ohio Supreme Court's decision in McGinty II, the trial court held a further hearing on Counts's motion for the inspection of the victims' home.^[2] F.K., L.T., their attorney, the state, Counts, and her counsel were present at the hearing. The trial court granted the motion. In its opinion granting the motion, the trial court reasoned:

A comparison review of Marsy's Law and the Defendant's rights under the 4th, 5th, 6th and 14th amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution compels one to rule in favor of the Defendant's rights to a fair trial and effective assistance of counsel. To deny the Defendant the right to obtain evidence in order to assist in her defense at trial would facially and substantially deny her constitutional rights. One accused of a crime may face jail, prison, or even death. The victim in this case is being ordered to allow the Defendant the right to inspect the victim's premises with counsel, under supervision, for a short period of time.

The possible loss of the Defendant's liberty preempts the brief invasion of the victim's privacy. Inherent in the Defendant's right to counsel, is the right to have the accused's case properly investigated, and when necessary, to have property inspected without the State or its agents peering over the shoulders of counsel.

(Trial Court's Judgment Entry, Nov. 19, 2021.)

{¶ 9} In addition to this balancing test, the trial court found it had the authority to order the inspection of the victims' property under its power to regulate the discovery process. The trial court also set specific conditions on the inspection of the home, to include restrictions on the portions of the home to be inspected and a time limit for Counts and her counsel's inspection.

{¶ 10} It is from this order that the victims appeal.

II. LAW AND ARGUMENT

A. Assignment of error and issues raised

{¶ 11} This is a case of first impression for this court. We are asked under what circumstances may a trial court order victims to allow a criminal defendant the ability to inspect their home when those victims object pursuant to Marsy's Law. Marsy's Law provides in relevant part:

(A) To secure for victims justice and due process throughout the criminal and juvenile justice systems, a victim shall have the following rights, which shall be protected in a manner no less vigorous than the rights afforded to the accused:

* * *

(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.

* * *

(E) All provisions of this section shall be self-executing and severable, and shall supersede all conflicting state laws.

{¶ 12} The victims allege one assignment of error, which reads:

The trial court erred in its November 19, 2021 journal entry by ordering [F.K. and L.T.] to vacate their home and allow Defendant and the defense team to search, measure, and photograph the home in violation of Ohio Constitution, Article I, Section 10a(A)(1), (6) and Amendment IV to the United States Constitution and contrary to the criminal rules.

{¶ 13} Within the assignment of error, the victims argue that the trial court erred where it improperly elevated a criminal's statutory rights to discovery in a criminal case over the victims' federal and state constitutional rights....