kelly cox motions

8/3/2019 Kelly Cox Motions

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- ", ";::-~,. " ~d\;:,;IN THE COURT OF COMMON PLEAS


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Accordingly, Defendant moves to change venue to a Common Pleas Court in southernOhio where a jury pool does not know, know of and/or admire Judge Henry and his family.

A change of venue will ensure that Defendant is tried before persons who know nothingabout this case and do not have any personal agenda whatsoever.

MARK . MAREIN (0008118)Marein &Bradley222 Leader Building526 Superior AvenueCleveland, Ohio 44114(216) 781-0722


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CASE NO, II-C-000116

JUDGE PAUL H. MITROVICH

KELLY A. COX,MOTION TO REFER DEFENDANTFOR MENTAL HEALTH EVALAUATIONTO DETERMINE HER COMPETENCY:r a STAND TRIAL

Defendant

Now comes the defendant, Kelly A. Cox, by and through undersigned counsel, and pursuantto R.C. Section 2945.37 et seq. hereby respectfully moves this Honorable Court to issue an orderreferring the Defendant for a mental health evaluation to determine her competency to stand trial.

As grounds for this motion the following circumstances are cited in support of this request:I. Defendant has a lengthy history of mental health treatment dating back

almost twenty years;Due to the events of May 23,2011, Defendant suffered an emotional breakdownresulting in hospitalization in Cleveland;Healthcare professionals have attempted to stabilize the Defendantwith the assistance of numerous medications since her discharge;On October 6, 2011, Defendant was found by her husband in their home ina catatonic state. Mr. Cox first believed that his wife had suffered a stroke.Defendant was thereupon transported by ambulance to the hospital. TheDefendant spent two days in the hospital with all diagnostic tests ruling outa stroke; the ultimate diagnosis being an emotional breakdown;

5. Defendant has suffered four like kind episodes subsequent to her most recenthospitalization. As a result, the Defendant's husband has assumed the careof the home and the couple's children as the Defendant frequently staresinto space, shakes and cries;

6. Defense counsel has recently tried to converse with the Defendant about her case, butDefendant's mental condition appears to be a serious impediment with thatendeavor;


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7. As a result of the above, defense counsel believes that his client is presentlyincapable of appreciating the nature and objective of the proceedings in thiscase and is further incapable of assisting in her defense;

8. Defense counsel and Geauga County Prosecuting Attorney David P. Joycehave been in regular contact relative to the Defendant's condition and Mr.Joyce appreciates the wisdom of referring the Defendant for a competencyevaluation and he voices no opposition to this request.

MARK B. MAREIN (0008 18)Marein & Bradley222 Leader Building526 Superior AvenueCleveland, Ohio 44114(216) 781-0722


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b. M ark B . M arein , E sq .Marein & Bradley222 L ea de r B u il di ng5 26 S up er io r A ve.C le ve la nd , OH 44114Phone : 216~781 0722

P ursua nt to R evised C od e 2 945 .7 2 th e tim e in w hich D efen dan t m ust be b ro ugh t to tria l iss ta ye d p en d in g c omp le ti on o f th e a bo ve -me ntio n ed .esaluati

cc: M ark B . Ma re in , E sq.David P. Joyce, Prosecuting AttorneyPsycho-Diagnost ic Clinic


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JUDGE PAUL H. MITROVICHvs.KELLY A. COX, MOTION TO SUPPRESSSTATEMENTS, PHYSICALEVIDENCE AND BLOOD TEST

RESULTS(Evidentiary Hearing Requested)Defendant

Now comes the defendant, Kelly A. Cox, by and through undersigned counsel,and hereby respectfully moves this Honorable Court to issue an order suppressingany statements made by her to State officials, physical evidence seized from herperson or vehicle, and forensic tests performed by State officials on blood drawnfrom the Defendant on May 23,2011.As grounds for this motion the Defendant maintains the following:1. Defendant was unlawfully and unreasonably detained at the scene of thesubject incident by a combination of law enforcement officials and Statecertified emergency personnel for over three (3) hours. Consequently, allstatements secured from the Defendant, as well as, all evidence seized fromDefendant's person, including bodily fluids, are subject to exclusion at trialas fruit of the poisonous tree. State v. Chatton (1984), 11 Ohio St. 3d 59,Katz v u .s . (1967),389 U.S. 347, Wong Sun v. u.s . (1963),371 U.S. 471.2. While at the scene Defendant did not exhibit indicia of intoxication norsmell of alcohol. When Defendant asked for permission to return home;having spent over three (3) hours at the scene, Defendant was advised thatlaw enforcement officials wanted her to submit to a blood test. WhenDefendant advised that she was "scared" and did not wish to submit to a

blood test, she was advised that her refusal would delay the inevitable; thatlaw enforcement would simply secure a search warrant authorizing them tosecure her blood. At that point Defendant "consented" to a blood draw.Consequently, the Defendant's "consent" to draw blood is invalid under thetotality of the circumstances and exclusion of her blood and blood testresults is warranted. See R.C. Section 4511.19 et seq.; State v. Robinette(1997), 80 Ohio st. 3d 234, Schneckloth v. Bustamonte (1973), 412 U.S.218.


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3. In accordance with R.C. Section 4511.19 the State of Ohio bears the burdenof proving compliance with Ohio Department of Health Regulations in thecollection, storing and testing of blood. In this case the Defendant maintainsthat the State cannot perfect the appropriate foundation for admissibility ofthe blood evidence under R.C. Section 4511.19 and the applicableregulations. As such suppression of such evidence is warranted.

Defendant respectfully requests an evidentiary hearing on the raised issueswhere the State of Ohio bears the burden of proof.

MAR B. MAREIN (00081Marein &Bradley222 Leader Building526 Superior AvenueCleveland, Ohio 44114(216) 781-0722

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