September 11, 2013
Videotape Deposition

by Justice Paul E. Pfeifer

This case, which involves a man named Levert Ervin, had its origins many years ago. In fact, the relevant issues date back to 2001. On May 4 of that year, a jury in Cuyahoga County Court of Common Pleas found Levert Ervin guilty of 11 counts of rape and one count of attempted rape.

Ervin was sentenced to mandatory life in prison for six of the rape counts. For the remaining five rape counts, he received life in prison, and on the count of attempted rape, he was sentenced to ten years.

After his trial, Ervin filed an appeal in 2002, but his convictions were affirmed by the court of appeals. Ervin began serving his sentence.

Early in the course of his trial, the assistant prosecutor discovered that one of the prosecution’s witnesses, a social worker named Ian Lucash, would not be available to testify live because of an upcoming surgery that had already been previously scheduled.

To remedy the situation, the assistant prosecutor filed a motion to get Ian’s deposition on videotape, rather than to lose his testimony altogether. The assistant prosecutor presented the motion to Judge Boyko, who was the acting administrative judge in Ervin’s case. Judge Boyko granted the motion and instructed the assistant prosecutor and the defense attorneys to work out a time to hold the deposition.

For reasons that are unknown, the ruling never made it into the case docket. However, the deposition was held and Ian’s videotaped testimony was eventually admitted in evidence at the trial. All of that happened in 2001, during the time of the trial.

On May 8, 2012, more than ten years after he was convicted, Ervin filed a motion to vacate Judge Boyko’s order granting Ian’s testimony by deposition on videotape. Judge Pamela Barker – the judge with whom the motion was filed in 2012 – denied the motion. She concluded that Ervin’s claim was barred by res judicata.

What is “res judicata?” Res judicata is a legal term that means “a thing or matter that is already settled by judgment.” The term represents the concept that “a matter once judicially decided is finally decided.” Res judicata bars relitigation of the same cause of action between the same parties where there is a prior judgment. So, when Judge Barker barred Ervin’s motion by res judicata, she meant that his case had already been settled.

She also found that Ervin had failed to demonstrate an abuse of discretion by Judge Boyko back in 2001 when he granted the assistant prosecutor’s motion to get Ian Lucash’s deposition on videotape.

In addition, Judge Barker also concluded that there was ample evidence presented at Ervin’s trial as to the finding of guilt, and therefore any error was harmless and would not have changed the outcome of the trial.

Not surprisingly, Ervin was not satisfied with that answer. He filed a petition for a writ in the Eighth District Court of Appeals on July 24, 2012. In the petition, he claimed that Judge Boyko’s order in 2001, allowing the testimony of Ian Lucash by video deposition, is void and must be vacated.

He also asserted that the prosecuting attorneys back in 2001 failed to make a showing that the assigned judge was not available to rule on the motion and that Judge Boyko – the acting administrative judge – lacked authority to rule on the motion. In his petition, Ervin requested that Judge Boyko’s order be declared void and he claimed to have no adequate remedy at law.

The Court of Appeals for the Eighth District dismissed the writ. The Eighth District noted that on the direct appeal of his conviction – the appeal in 2002, right after his original trial – Ervin’s attorney had raised ten assignments of error, several attacking Ian Lucash’s testimony. Among those assignments of error was that the trial judge erred in allowing the video deposition to be used at trial.

The court of appeals in that 2002 appeal overruled all the assignments of error and found that the deposition testimony was proper because the social worker would not have been available at trial.

After the Eighth District Court of Appeals’ ruling on Ervin’s 2012 motion, he brought his case before us – the Supreme Court of Ohio – for a final review.

We began our analysis by noting that in order to be entitled to the writ that he had requested, Ervin must show a clear legal right to the requested relief. He must also show a clear legal duty on the part of Judge Barker to provide it. Additionally, he has to show that he lacks an adequate remedy in the ordinary course of the law. And finally, he must prove that he is entitled to the writ by clear and convincing evidence.

We determined that he clearly has an adequate remedy in the ordinary course of the law. First of all, he had already had his direct appeal – the one in 2002, just after his trial and convictions – in which he objected to the admission of Ian Lucash’s testimony. And, as the Eighth District Court of Appeals stated, he could have appealed Judge Barker’s 2012 denial of his motion to vacate Judge Boyko’s order.

We therefore determined that because Levert Ervin has an adequate remedy at law by way of appeal, he cannot establish the elements for his requested writ. By a seven-to-zero vote we concluded that the Eighth District Court of Appeals did not err in dismissing the petition that Ervin had filed, and we thus affirmed the court of appeals’ judgment.

EDITOR'S NOTE: The case referred to is State ex rel. Ervin v. Barker, 136 Ohio St.3d 160, 2013-Ohio-3171. Case No. 2013-0331. Decided July 25, 2013. Opinion Per Curiam.