[Cite as In re: Grand Jury Subpoena of Byrd, 2018-Ohio-3046.]



                Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 106193




                                IN RE: GRAND JURY SUBPOENA
                                      FOR DAUNTE BYRD

                                       [Appeal by Daunte Byrd]




                                             JUDGMENT:
                                              AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-17-614867-A

        BEFORE: Laster Mays, J., McCormack, P.J., and Jones, J.

        RELEASED AND JOURNALIZED:                     August 2, 2018
                                                    -i-
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender

By: Paul Kuzmins
     Jeffrey Gamso
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Mary M. Frey
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant Daunte Byrd (“Byrd”) appeals the trial court’s declaration that

Byrd’s motion to quash a grand jury subpoena is moot. We affirm the trial court’s judgment.

I.     Background and Facts

       {¶2}     On January 12, 2017, the Cuyahoga County Grand Jury issued a subpoena to

have Byrd transported to the Cuyahoga County jail from the Trumbull Correctional Institution

(“TCI”) where he was serving a term of incarceration. Byrd was transferred to Cuyahoga

County jail on February 9, 2017. In spite of confirmation by the sheriff’s office that Byrd’s

return was recorded under a grand jury subpoena number, Byrd’s counsel was unable to obtain

information regarding the grounds for the subpoena from the court or the prosecutor.

       {¶3}    The state asserts that Byrd’s return to TCI was ordered several days after his

arrival to Cuyahoga County jail but, due to a change in personnel, the transfer did not take place.

On March 1, 2017, Byrd filed a motion to quash the grand jury subpoena and requested his return

to TCI. The state responded that the subpoena was issued in error, and Byrd was returned to

TCI on March 3, 2017. Byrd elected to proceed with the case. On April 5, 2017, the trial court

held a hearing on the motion to quash and declared that the motion was moot due to Byrd’s

return and because the subpoena had already been executed.

       A.      Timeliness of Appeal

       {¶4} The trial court’s journal entry declaring that the case was moot is dated June 19,

2017. Byrd’s counsel attached an affidavit to the notice of appeal filed by Byrd on August 31,

2017. Counsel explained that he had not been served with a copy of the trial court’s entry and
first learned that a decision had been issued in the case during an “informal” conversation with

the trial court. As a result of that conversation, the trial court issued a judgment entry on

July 25, 2017, directing the clerk of courts to serve copies on counsel for the parties.

       {¶5} App.R. 5(A) provides that upon the expiration of the 30-day time period set forth in

App.R. 4(A) for criminal appeals, a defendant may seek leave of court to file an appeal under

App.R. 5(A). An appellate court is vested with broad discretion to allow the filing of a late

appeal in criminal proceedings.                  State v. Ronny, 8th Dist. Cuyahoga No. 102968,

2016-Ohio-3448, ¶ 19. In Ronny, this court exercised that discretion to waive strict compliance

with App.R. 5(A) and sua sponte granted leave for Ronny to file a delayed appeal after

discovering the appeal was filed untimely. Id. at ¶ 19. In light of Byrd’s counsel’s provision of

the affidavit, coupled with the trial court’s issuance of the July 25, 2017 entry directing proper

service, we elect to exercise our discretion in this case and sua sponte grant leave to appeal to

address the merits. Id. at ¶ 22.1

II.    Assignment of Error and Discussion

       {¶6}        Byrd’s single assigned error contends that the trial court erred in dismissing

Byrd’s motion to quash an unlawfully issued grand jury subpoena as moot. We affirm the trial

court’s findings.

       {¶7} This court is obligated to dismiss an action where the issues raised in that action

are moot. In re Affidavits for Probable Cause, 8th Dist. Cuyahoga No. 103255, 2016-Ohio-856,

¶ 9, citing McBee v. Toledo, 6th Dist. Lucas No. L-13-1101, 2014-Ohio-1555.

       {¶8} An action is moot



       1
           The state has not challenged jurisdiction.
        “when they are or have become fictitious, colorable, hypothetical, academic or
        dead. The distinguishing characteristic of such issues is that they involve no actual
        genuine, live controversy, the decision of which can definitely affect existing legal
        relations. * * * ‘A moot case is one which seeks to get a judgment on a pretended
        controversy, when in reality there is none, or a decision in advance about a right
        before it has been actually asserted and contested, or a judgment upon some
        matter which, when rendered, for any reason cannot have any practical legal effect
        upon a then-existing controversy.’”

State ex rel. Cincinnati Enquirer v. Hunter, 141 Ohio St.3d 419, 2014-Ohio-5457, 24 N.E.3d

1170, ¶ 4, quoting In re L.W., 168 Ohio App.3d 613, 2006-Ohio-644, 861 N.E.2d 546, ¶ 11 (10th

Dist.), quoting Grove City v. Clark, 10th Dist. Franklin No. 01AP-1369, 2002-Ohio-4549, at ¶

11, quoting Culver v. Warren, 84 Ohio App. 373, 393, 83 N.E.2d 82 (11th Dist.1948).

        {¶9} Byrd offers that the instant case falls within an exception to the mootness doctrine

because it involves conduct that is “‘capable of repetition, yet evading review.’” In re Affidavits

for Probable Cause at ¶ 12, quoting State ex rel. Plain Dealer Publishing Co. v. Barnes, 38

Ohio St.3d 165, 527 N.E.2d 807 (1998), paragraph one of the syllabus. The exception applies

only in “‘exceptional circumstances in which the following two factors are both present: (1) the

challenged action is too short in its duration to be fully litigated before its cessation or expiration,

and (2) there is a reasonable expectation that the same complaining party will be subject to the

same action again.’” Id. at ¶ 12, quoting State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d

229, 231, 729 N.E.2d 1182 (2000).

       {¶10} Byrd correctly recognizes that the exception serves a useful and much-needed

purpose and affords an opportunity to address conduct that may otherwise evade judicial review.

In this case, Byrd argues that both prongs of the test have been met and that the state’s conduct

should be addressed.
        {¶11} Byrd rejects the state’s claims that the subpoena was issued in error and counters

that the explanation is just a pretext. The issuance of the subpoena, according to Byrd, was

triggered by a DNA hit resulting from the Ohio cold case rape kit initiative.          Byrd was

questioned by county prosecutors but refused to waive his Miranda rights. A buccal swab was

also obtained pursuant to a search warrant though, as of the date of the oral argument before this

court, there had been no charges brought against Byrd.

        {¶12} Byrd’s counsel advises that the Office of the Public Defender has encountered

this situation with other prisoners who were delivered to county jail “under the ruse of a grand

jury investigation.” Appellant’s brief (Jan. 2, 2018), p. 4-5. The prisoners were questioned,

DNA samples obtained, and interrogations attempted. Byrd further offered that this was the

second time that Byrd was removed and transported pursuant to a grand jury subpoena. The

state distinguishes the prior subpoena on the ground that it was properly issued to secure Byrd’s

return to testify at a trial.

        {¶13} Byrd also questions the sufficiency of the grand jury subpoena and the absence of

duces tecum language, but the state concedes the absence of the language was erroneous. R.C.

2939.12 authorizes the clerk of court to “issue subpoenas and other process to any county to

bring witnesses to testify” “[w]hen required by the grand jury, prosecuting attorney, or judge of

the common pleas court.”         Subpoenas may also be issued under Crim.R. 17(C) for the

production of “books, papers, documents, or other objects designated in the subpoena.” Findlay

v. Reichenbach, 3d Dist. Hancock No. 5-92-30, 1992 Ohio App. LEXIS 6589, 4 (Dec. 29, 1992).

        {¶14}      Physical evidence is subject to Crim.R. 17(C) subpoena power. The prohibition

against self-incrimination afforded by the Fifth Amendment to the United States Constitution and

Section 10, Article I of the Ohio Constitution does not apply to the production of physical
evidence. In re Grand Jury Proceedings, Hellmann, 756 F.2d 428, 431 (6th Cir.1985), citing

United States v. Dionisio, 410 U.S. 1, 8-10, 14-15, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Gilbert v.

California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v.

Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Schmerber v. California,

384 U.S. 757, 764, 16 L.Ed.2d 908, 86 S.Ct. 1826 (1966).

       {¶15}       While a compelled grand jury appearance is not considered to be a Fourth

Amendment search and seizure,2 a cheek swab for DNA of an individual has Fourth Amendment

implications and requires consent or warrant based on probable cause. “It can be agreed that

using a buccal swab on the inner tissues of a person’s cheek in order to obtain DNA samples is a

search.” Maryland v. King, 569 U.S. 435, 446, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013). In this

case, after Byrd was returned to Cuyahoga County jail, a search warrant was issued to obtain the

physical evidence.

       {¶16} Byrd posits that, even accepting the state’s admission that it omitted the duces

tecum requirement from the grand jury subpoena, “a grand jury subpoena may not be used to

procure a DNA sample.” Appellant’s brief (Jan. 2, 2018), p. 5. Instead, Byrd argues that

R.C. 2901.07(B)(1)(d) is the exclusive statutory authority for the collection of DNA:

       If a person is in the custody of a law enforcement agency or a detention facility, if
       the chief law enforcement officer or chief administrative officer of the detention
       facility discovers that a warrant has been issued or a bill of information has been
       filed alleging the person to have committed an offense other than the offense for
       which the person is in custody, and if the other alleged offense is one for which a
       DNA specimen is to be collected from the person pursuant to division (B)(1)(a) or
       (b) of this section, the chief law enforcement officer or chief administrative officer
       shall cause a DNA specimen to be collected from the person in accordance with
       division (C) of this section.



       2
           Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).
       {¶17}     We decline to address the merits of this argument because we find that the

second part of the exceptions test cannot be met in this case. This case does not present

“exceptional circumstances” compelling our review. (Citations omitted.) Upper Arlington, 89

Ohio St.3d 229, 231, 729 N.E.2d 1182. “There is no reasonable expectation that” this appellant

“will be subject to the same” Cuyahoga County grand jury subpoena based on the same grounds

again. Id.

       {¶18} “Mootness is concerned with the justiciability of an action when any relief a court

might provide to a plaintiff would be meaningless.” Bellisario v. Cuyahoga Cty. Child Support

Agency, 8th Dist. Cuyahoga No. 88788, 2007-Ohio-4834, ¶ 9, fn. 1, citing Sedlak v. Solon, 104

Ohio App.3d 170, 178, 661 N.E.2d 265 (8th Dist.1995). That is exactly the situation that we are

faced with in this case.

       {¶19}     Byrd’s sole assignment of error is overruled.

       {¶20} The trial court’s judgment is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



____________________________________
ANITA LASTER MAYS, JUDGE

TIM McCORMACK, P.J., and
LARRY A. JONES, SR., J., CONCUR
