[Cite as State ex rel. Swopes v. McCormick,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, EX REL., DOMINIQUE SWOPES, :

Relator, : No. 110860 v. :

HONORABLE TIMOTHY MCCORMICK, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: COMPLAINT DISMISSED DATED: January 28, 2022

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

Appearances:

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.

EILEEN T. GALLAGHER, J.:

Dominique Swopes has filed a complaint for a writ of mandamus.

Swopes seeks an order from this court that requires Judge Timothy McCormick to 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

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 (R.C. 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.

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 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.

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.

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,

; State v. Abercrombie, 8th Dist. Cuyahoga No. 88625, 207-Ohio-5071, P23-26; State v. 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).

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

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.

; State ex rel. Ware v. Pureval,

,

,

; State ex rel. McDougald v. Greene,

,

,

.

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,

,

,

; State ex rel. Hunter

v. Cuyahoga Cty. Court of Common Pleas,

,

,

. Finally, noncompliance with R.C. 2969.25(A) and 2969.25(C) cannot

be cured by amendment of the original complaint:

The requirements of R.C. 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.,

, 1999- Ohio-53,

(1999), citing State ex rel. Zanders v. Ohio Parole Bd.,

,

,

(1998). As held by the court of appeals, the affidavit required by R.C. 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,

,

, ¶ 9,

(an inmate’s “belated attempt to file the required affidavit does not excuse his noncompliance. See R.C. 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. State ex rel. Hall v. Mohr,

,

,

;

see also Fuqua v. Williams,

,

,

;

State v. Wilson, 8th Dist. Cuyahoga No. 110527,

. Thus, based upon

Hall, Fuqua, and Wilson, Swopes was not permitted to amend his original complaint

for mandamus by attempting to comply with R.C. 2969.25(A) and 2969.25(C).

III. Substantive Analysis

A. Original Jurisdiction in Mandamus

This court possesses original jurisdiction over a complaint for a writ of

mandamus pursuant to Article IV, Section 3(B)(1) of the Ohio Constitution, R.C.

2731.01 and 2731.02. The requisites for mandamus are well established: 1) Swopes

must establish a clear legal right to the requested relief, 2) Swopes must establish

that Judge McCormick possesses a clear legal duty to perform the requested relief,

and 3) Swopes possesses no other adequate remedy in the ordinary course of the

law. State ex rel. Ney v. Niehaus,

,

(1987).

Mandamus is an extraordinary remedy that is to be exercised with great caution and

granted only when the right is absolutely clear. Mandamus should not issue in

doubtful cases. State ex rel. Taylor v. Glasser,

,

(1977); State ex rel. Shafer v. Ohio Turnpike Comm.,

,

(1953); State ex rel. Connole v. Cleveland Bd. of Edn.,

,

(8th Dist. 1993).

In addition to the aforesaid basic requirements that must be

established by Swopes, the following principles of law guide this court’s determination as to whether a writ of mandamus should be issued. Mandamus lies

only to enforce the performance of a ministerial duty or act. A ministerial duty or

act has been defined as one that a person performs in a given state of facts in a

prescribed manner in the obedience to the mandate of legal authority, without

regard to, or the exercise of, his or her own judgment upon the propriety of the act

being done. The duty to be enforced must be specific and definite, clear, and concise,

must be specifically enjoined by law, must be incident to the office, trust, or station

that the respondent holds, and it may not be one of a general character that is left to

the respondent’s discretion. State ex rel. Council President v. Mayor of E.

Cleveland, 8th Dist. Cuyahoga No. 110221,

; State ex rel. E.

Cleveland v. Norton, 8th Dist. Cuyahoga No. 98772,

; State ex rel.

Neal, Jr. v. Moyer, 3d Dist. Allen No. 1-84-44,

(Jan. 9,

1985).

B. Claim for Mandamus

In support of his claim for mandamus, Swopes argues that he

possesses constitutional rights that have been violated, Judge McCormick possesses

a duty to protect Swopes’s constitutional rights, and there exists no other adequate

remedy in the ordinary course of the law. Specifically, Swopes argues that allowing

the prosecutor to test the remaining 25 microliters of the preserved DNA: 1) violates

Crim.R. 16 and 42; 2) violates Swopes’s due process rights; 3) denies Swopes the

right to equal protection of the law; and 4) there exists no other remedy in the

ordinary course of the law. The current version of Crim.R. 16 constitutes a general rule that

controls criminal discovery and allows for “open file” discovery. Crim.R. 42 was

adopted by the Supreme Court of Ohio in 2017 and applies to all capital murder

cases and postconviction reviews of capital murder cases. When read in para

materia, we find no basis to support the claim that the judgment to allow the

prosecutor to conduct further testing on the remaining DNA sample prejudices

Swopes.

A review of the transcripts attached to the complaint for mandamus

demonstrates that the prosecutor offered legitimate scientific reasons for the need

to consume the remaining DNA sample. It must also be noted that the order of

Judge McCormick provided for the use of an independent testing laboratory and

that counsel for Swopes would be allowed to observe the testing and have full access

to all results obtained from the additional DNA testing. We find no violation of

Crim.R. 16 and 42 and further find that Swopes has not established a clear legal right

to his own testing of the preserved DNA sample or that Judge McCormick possesses

a duty to allow Swopes to conduct independent testing of the preserved DNA

sample. State ex rel. McQueen v. Weibling-Holliday,

, 2016-Ohio-

5107,

; State ex rel. Pressley v. Indus. Comm.,

,

(1967).

Swopes has failed to establish that his right to due process, under the

Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution and Ohio

Constitution, Article I, Sections 10 and 16, have been violated by Judge McCormick’s judgment to allow for additional testing of the preserved DNA sample. The

suppression of materially exculpatory evidence violates a defendant’s due process

rights. Brady v. Maryland,

,

,

(1963); State

v. Geeslin,

,

,

. Swopes does not

allege that the additional testing of the preserved DNA will result in the destruction

of exculpatory evidence, nor has he alleged that the prosecutor is acting in bad faith.

Arizona v. Youngblood,

,

,

(1988); State v.

Abercrombie, 8th Dist. Cuyahoga No. 88625,

.

Swopes, with regard to his claim of the right to equal protection,

argues that a person charged with a drug offense under R.C. Chapters 2925 or 3719,

is entitled to have a portion of the alleged drug preserved for the benefit of

independent analysis performed by a laboratory analyst selected by the defendant.

Swopes argues that equal protection requires the preservation of the DNA sample

and further testing by a laboratory analyst of his own choice similar to a person

charged with a drug offense per R.C. 2929.51(E).

Generally, the unlawful administration by state officers of a state

statute fair on its face, resulting in its unequal application to those who are entitled

to be treated alike, is not a denial of equal protection unless there is shown to be

present in it an element of intentional or purposeful discrimination. Snowden v.

Hughes,

,

,

(1944). The unsupported argument

that a defendant charged with a drug offense is entitled to the testing of an alleged

contraband drug and the simple statement that “[t]o not allow his own testing when his life hangs in the balance and yet allow him testing when confronted with a first-

degree misdemeanor (or less) drug charge is irrational,” without citation to existing

case law to demonstrate the existence of purposeful discrimination against Swopes,

fails to establish the claim of a denial of equal protection. Yick Wo v. Hopkins,

,

,

(1886). In addition, Swopes has failed to

demonstrate that there exists no rational basis for the state legislature, in legislating

drug laws, to treat the offense of capital murder differently. State v. Mole,

,

,

; State ex rel. Doersam v. Indus. Comm.,

,

(1989). We find that Swopes has failed to

establish his right to equal protection has been violated by Judge McCormick’s

judgment for additional DNA testing.

Because Swopes has failed to demonstrate a clear legal right to the

relief requested or that Judge McCormick possesses a clear legal duty, we need not

address whether there exists an adequate remedy at law. State ex rel. Daimler

Chrysler Corp. v. Self-Insuring Emp. Evaluation Bd., 10th Dist. Franklin No. 04AP-

1222,

.

C. Mandamus and Control of Judicial Discretion

Although a writ of mandamus may require an inferior tribunal to

exercise its judgment or to proceed to the discharge of its function, it may not control

judicial discretion, even if such discretion is grossly abused.

citing R.C.

2731.03; State ex rel. Sawyer v. O'Connor,

,

(1978). Herein, Swopes is attempting to control the judicial discretion of Judge McCormick by seeking an order that requires the vacation of his judgment with

regard to the prosecutor’s request for additional testing. Judge McCormick has

fulfilled his obligation to render a ruling with regard to the prosecutor’s request for

additional DNA testing by granting it and placing additional requirements with

regard to the testing. Judge McCormick has exercised his discretion in making that

determination, and mandamus will not lie to control that judicial discretion.

O'Connor; Patterson v. Cuyahoga Cty. Common Pleas Court, 8th Dist. Cuyahoga

No. 107755,

; State ex rel. Jones v. Friedland, 8th Dist. Cuyahoga No.

81226,

.

D. Prohibitory Injunction and Declaratory Judgment

Finally, if the allegation of a complaint for a writ of mandamus

demonstrates that the real object sought is a prohibitory injunction and a

declaratory judgment, the complaint does not state a cause of action in mandamus

and must be dismissed for lack of jurisdiction. State ex rel. Esarco v. Youngstown

City Council,

,

,

; State ex rel.

Obojski v. Perciak,

,

,

; State ex

rel. Grendell v. Davidson,

,

(1999).

As previously discussed, this court possesses, in an action for

mandamus, the jurisdiction to require a respondent to comply with a clear and

specific legal duty. R.C. 2731.01 and 2731.02. This court, however, does not possess

the jurisdiction to prohibit or enjoin a respondent from acting in a manner that may

cause injury to the relator. The request, through mandamus, to prevent an expected injury, constitutes a prohibitory injunction that does not fall within the realm of

mandamus. State ex rel. Gadwell-Newton v. Husted,

, 2018-

Ohio-1854,

; State ex rel. Evans v. Blackwell,

,

,

; State ex rel. Smith v. Indus. Comm.,

,

(1942). Herein, it is abundantly clear that the purpose of

Swopes’s complaint for a writ of mandamus is to prevent the prosecutor from

conducting additional testing of the preserved DNA sample, the function of a

prohibitory injunction.

In addition, this court does not possess the jurisdiction to issue a

declaratory judgment through the complaint for mandamus. Wright v. Ghee,

,

(1996); State ex rel. Coyne v. Todia,

,

(1989). Here, it is abundantly clear that the true objects of

Swopes’s claims, in support of the complaint for mandamus, are a declaratory

judgment that his rights to due process and equal protection have been denied by

the judgment of Judge McCormick to allow the prosecutor to conduct additional

testing on the preserved DNA. Thus, the complaint for mandamus does not state a

cause of action in mandamus and must be dismissed for want of jurisdiction. State

ex rel. Youngstown v. Mahoning Cty. Bd. of Elections,

,

(1995); State ex rel. Governor v. Taft,

,

(1994);

State ex rel. Walker v. Bowling Green,

,

(1994);

State ex rel. Ohio Mechanical Contracting Industry, Inc. v. Cleveland,

,

(1992). E. Conclusion

Accordingly, we grant Judge McCormick’s motion to dismiss and

renewed motion to dismiss. Motion No. 549552, which granted a sua sponte

alternative writ on September 29, 2021, and ordered that the trial court shall

continue to maintain the stay order issued on September 21, 2021, in State v.

Swopes, Cuyahoga C.P. No. CR-19-638518, is vacated. Costs to Swopes. The court

directs the clerk of courts to serve all parties with notice of this judgment and the

date of entry upon the journal as required by Civ.R. 58(B).

Complaint dismissed.

_______________________________ EILEEN T. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and EILEEN A. GALLAGHER, J., CONCUR