State v. Cruz

Citations

• 2024 Ohio 733

Syllabus

Motion to quash subpoena, motion for protective order, final appealable order, abuse of discretion, testimony of attorney engaged in proceeding. Defendant filed motion to disqualify prosecutor and to dismiss his criminal case alleging that the assistant prosecutor assigned to the case intentionally withheld evidence and caused prejudice. Defendant did not subpoena the assistant prosecutor but orally requested her testimony at the time of the hearing on his motions. The state filed a motion to quash and for a protective order to prevent defendant from calling the assistant prosecutor to testify at hearing. A trial court's denial of a motion to quash or motion for protective order is generally a final, appealable order, and the court reviews the denial of such motion for an abuse of discretion. A court abuses its discretion when it applies the wrong legal standard or misapplies the correct legal standard. Attorneys engaged in the prosecution of a case are prohibited from acting as both a witness and advocate in the same proceeding. However, if there are exceptional circumstances and no other means of presenting relevant and material evidence, a prosecuting attorney may offer testimony in a criminal case in which they are engaged. The record could not support a finding the assistant prosecutor's testimony was the only evidence available to defendant because there were other witnesses to testify about the collection, storage, and transmission of the evidence defendant alleged was withheld as well as records of what was provided in discovery. Because the trial court did not find that the assistant prosecuting attorney's testimony was the only testimony available, it abused its discretion by denying the motion to quash and for protective order.