COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72779 STATE EX REL. HBRANDON FLAGNER: : Relator : JOURNAL ENTRY : and vs. : OPINION : DETECTIVE RON ARKO : MAPLE HEIGHTS POLICE DEPARTMENT: : Respondent : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 5, 1998 CHARACTER OF PROCEEDING : WRIT OF MANDAMUS : (Motion No. 87263) JUDGMENT : WRIT DISMISSED. DATE OF JOURNALIZATION : APPEARANCES: For relator : HBRANDON FLAGNER, pro se Madison Correctional Institution Post Office Box 740 London, Ohio 43140-0740 For respondent : MICHAEL G. CIARAVINO Prosecuting Attorney City of Maple Heights 5005 Rockside Road, Suite 600 Independence, Ohio 44131-2194 -2- KENNETH A. ROCCO, P.J.: On July 1, 1997, the relator, Hbrandon Flagner, commenced this mandamus action against the respondent, Ron Arko, a detective with the Maple Heights Police Department, to compel the discovery of exculpatory evidence in the underlying case, State of Ohio v. Hbrandon Flagner, Cuyahoga County Common Pleas Court Case No. CR- 191309, pursuant to Crim.R. 16. On September 22, 1997, the respondent submitted his objection and opposition to Mr. Flagner's application for a writ of mandamus. Attached to this filing were the affidavits of Detective Arko and Assistant Cuyahoga County Prosecutor Carmen Marino. On October 1, 1997, this court converted Detective Arko's filing to a motion for summary judgment and afforded the parties until December 1, 1997 to file supporting briefs and evidence pursuant to Civ.R. 56. Mr. Flagner timely filed a brief, and the respondent, relying on his initial filing, submitted no further materials. For the following reasons, this court grants the respondent's motion for summary judgment and dismisses this writ action. Tiffany Papesh was eight years old when she disappeared in June, 1980 while running an errand; her body has never been found. At the time, considerable interest in her case arose. Mr. Flagner confessed to various persons to killing Tiffany. In July, 1985, a jury convicted him of the kidnapping and murder of Tiffany, for which he is still serving his prison sentence. Fifteen years after her initial disappearance, the Cleveland Plain Dealer published a -3- follow-up story on the case. This article is the foundation for Mr. Flagner's claim that undisclosed exculpatory evidence exists and is Exhibit A to the mandamus petition. The critical paragraph stated as follows: But police and Tiffany's relatives don't believe Flagner is her killer, either, and information that supports his alibi - information not introduced at his murder trial - raises questions about whether he could have committed the crime. The next paragraphs focused on Detective Arko. He revealed that because the body was never found, the case remains open and that he occasionally checks on tips or sightings of women who would resemble a grown-up Tiffany. According to the article, he admitted that he does not believe Flagner committed the crime; the Maple Heights Police Department checked into his alibi and his initial confession and concluded that he did not murder Tiffany. The article also examined the alibi. A mechanically-stamped time card from Mr. Flagner's place of employment indicated that he was working miles away in Wayne County until minutes before the abduction. The work site was an hour away from the place of Tiffany's disappearance. The card showed that Mr. Flagner worked until 2:36 p.m. and Tiffany disappeared at 2:45 p.m.; the search for her began at 3:00 p.m. The article also stated that Mr. Flagner's lawyers did not concentrate on the alibi defense; rather, they pursued another strategy. The article quoted one of the lawyers as saying that, in his experience, juries seldom believe alibis. The article also quoted one of the jurors: *** we all -4- felt he was guilty from the start. I don't remember being ver impressed with his alibi. 1 Mr.yFlagner concluded from this article that Detective Arko had uncovered new exculpatory evidence that had not been released to him. He then began efforts to obtain this evidence, which culminated in this mandamus action. In response, Detective Arko submitted his affidavit and that of Carmen Marino, who prosecuted the underlying case. In his affidavit, Detective Arko stated that he provided Mr. Marino with all documents and evidence that he had obtained during the investigation. Because the body of Tiffany was never found, he has kept the case open, but, To date, I have not obtained or received any new relevant or exculpatory documents or evidence regarding her disappearance. *** I, therefore, do not have any new, relevant or exculpatory documents or evidence in my possession which would support Flagner's motion for a new trial. In his affidavit, Mr. Marino stated that as part of pretrial discovery pursuant to Crim.R. 16, he produced all relevant and exculpatory documentation and evidence to Flagner's counsel, including the mechanically stamped time card ***. Since the production of this documentation to Flagner's counsel prior to the trial in the captioned case, I have not obtained, reviewed, or been provided with any new or additional evidence which would support Flagner's motion for a new trial as set forth in the Writ of 1At trial, the defense presented evidence of the alibi, including the time card; however, the prosecution introduced evidence that Mr. Flagner faked his alibi. -5- Mandamus. In the final paragraph, Mr. Marino reaffirms that he fully complied with Crim.R. 16 and that, I do not have nor have I received or obtained any new or additional information or evidence which would satisfy Flagner's recent request as contained in his Application for Writ of Mandamus. The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief; (2) the respondent must have a clear legal duty to perform the requested relief; and (3) there must be no adequate remedy at law. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Moreover, mandamus is an extraordinary remedy, which is to be exercised with caution and only when the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d 165, 364 N.E.2d 1; State ex rel. Shafer v. Ohio Turnpike Commission (1953), 159 Ohio St. 581, 113 N.E.2d 14; State ex rel. Connole v. Cleveland Board of Education (1993), 87 Ohio App.3d 43, 621 N.E.2d 850; and State ex rel. Dayton-Oakwood Press v. Dissinger (1940), 32 Ohio Law Abs. 308. Furthermore, the issuance of a writ of mandamus rests within the discretion of the court, depending upon the facts and circumstances of the case, including the applicant's rights, the relator's conduct, the equity and justice of the relator's case and public policy. State ex rel. Pressley v. Industrial Commission of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631; State ex rel. Bennett v. Lime (1978), 55 Ohio St.2d 62, 378 N.E.2d 152; and State ex rel. Mettler v. Stratton (1941), 139 Ohio St. 86, 38 N.E.2d 393. -6- Civ.R. 56(C) contains the standards for summary judgment. Summary judgment may be entered for a party only if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. Moreover, summary judgment shall not be rendered unless it appears from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor. See generally, State ex rel. Shumway v. State Teachers Retirement Board (1996), 114 Ohio App.3d 280, 685 N.E.2d 70. The gravamen of Mr. Flagner's case is the line in the newspaper article that stated: Information that supports his alibi--information not introduced at his murder trial--raises questions about whether he could have committed the crime. From this line, he deduced that Detective Arko must have found new information that would support his claim of innocence. In his October 3, 1997 brief, he confirmed that [t]his is the information that Relator is seeking. However, this is an insufficient basis upon which to rest a claim for mandamus. The newspaper article cannot be accepted as evidence; it is hearsay of the remotest character. Heyman v. City of Bellevue (1951), 91 Ohio App. 320, 326, N.E.2d 161 and City of Cleveland v. Division 268, Amalgamated Assn. Of Street Electric Railway & Motor Coach Employees of America (1948), 84 Ohio App.43, -7- 81 N.E.2d 310. Salem v. Salem (1988), 61 Ohio App.3d 243, 572 N.E.2d 726 is particularly illuminating. In that divorce case, the parties had reached a settlement concerning the division of their property after full negotiations. Several years later, the wife moved to vacate the decree that incorporated the settlement because a newspaper article, which discussed an attempted corporate takeover of the husband's company, showed that the husband had not fully disclosed the value of his assets. The trial court summarily dismissed the motion to vacate. In affirming the trial court, the court of appeals ruled that [a] newspaper article alone is not evidence of operative facts ***. 61 Ohio App.3d at 246. Just as the movant in Salem could not prove lack of disclosure based on a newspaper article, so, too, Mr. Flagner cannot show lack of disclosure of exculpatory evidence based on a newspaper article. In contrast, Detective Arko has properly supported his position with affidavits by himself and the assistant prosecutor from the underlying case. These affidavits establish that, despite whatever inferences might be drawn from the article, no new exculpatory evidence has been discovered. Thus, there is no factual basis to issue a writ of mandamus to compel the disclosure of evidence. Moreover, an examination of Crim.R. 16 raises doubts as to whether there is a legal basis for issuing a writ of mandamus to compel the disclosure of evidence. Crim.R. 16(B) states the various materials that the prosecution must disclose to the defendant upon motion. Subsection(B)(1)(f) provides for the -8- disclosure of evidence favorable to the defendant upon motion before trial. Crim.R. 16(F) provides that the defendant shall make his motions for discovery twenty-one days after arraignment or seven days before trial, whichever is earlier. Any subsequent motion may be made only upon showing of cause why such motion would be in the interest of justice. Such a motion should be directed to the trial court, and the rule provides that the trial court then order the prosecutor to provide the information, not the police. Furthermore, Crim.R. 16(D), Continuing Duty to Disclose, provides that such a duty persists prior to or during trial. Thus, the first doubt is whether Detective Arko is the proper respondent for a mandamus action seeking discovery pursuant to Crim.R. 16. The rule states that the prosecutor, as compared to the police, should make the necessary disclosures. Second, Crim.R. 16 appears to provide an adequate remedy at law for nondisclosure, a motion directed to the trial court pursuant to subsection (E)(3) or subsection (F) upon a showing of just cause. Cf. State v. Simmons (1993), 87 Ohio App.3d 290, 292, 623 N.E.2d 22 ( It is within the trial court's discretion to grant any discovery beyond the scope of that required by Crim.R. 16. ). Finally, there is the issue of timing. Crim.R. 16 generally mandates that discovery occur prior to or during trial. Even the duty of continuing disclosure is, by the wording of the rule, limited to prior to or during trial. Cf. Simmons and State v. Hesson (1996), 110 Ohio App.3d 845, 675 N.E.2d 532, which characterize Crim.R. 16 as governing and concerning pretrial -9- discovery. Thus, this court entertains a doubt as to whether, many years after trial and conviction and when there is no postconviction proceeding pending, Crim.R. 16 is applicable to obtain the desired discovery. Accordingly, because there is no factual basis supported by admissible evidence and because it is doubtful that mandamus may be employed to compel criminal discovery against a police detective many years after the trial has been concluded, this court grants the respondent's motion for summary judgment and dismisses this writ action. Costs assessed against relator. ANN DYKE, J. CONCURS JAMES D. SWEENEY, J. CONCURS .