Defense attorney Kenneth Lieux wrote in court documents filed Wednesday that when Prosecutor Matt Mishak’s efforts to get a search warrant failed last week, the victim in the case showed up at Kimberly Kalapos’ Bennett Drive home with an Elyria police escort last Friday night.
While Kalapos, who had rejected an earlier request from Mishak to allow a voluntary search of her house, was kept in the foyer by police, her daughter, Alyssa Harmon, was allowed to go to her old room. Alyssa took photographs of the bedroom that were then sent to Mishak, whose office forwarded the images to Lieux on Monday, according to the court documents.
The reason that Alyssa and her father, Greg Harmon, went to the house was ostensibly to collect “dress clothes” and a video game system, but Kalapos told him she didn’t think her daughter took any clothes, Lieux said. Instead, the 16-year-old took the pictures with her phone and left with an Xbox 360 and some video games.
“The whole thing was a ruse, a pretext to get into the house without a court order, without a warrant and they used that to gather evidence,” Lieux said.
Although Mishak has been ordered by Elyria Law Director Scott Serazin not to discuss the case, Scott Strait, another Elyria city prosecutor, said Thursday that the Harmons deny that Mishak was involved in planning last Friday’s visit to Kalapos’ house. Mishak also has denied wrongdoing, Strait said.
“At no time did Matt ever ask them to take photos of any evidence in the house,” Strait said. “They did that of their own accord.”
But Lieux said he finds it hard to accept that the Harmons took it upon themselves to gather evidence after Mishak was repeatedly rebuffed in his attempts to get a warrant in the days before the case was set for trial, something that was supposed to happen Thursday.
“My belief is that the prosecutor was involved in this,” Lieux said. “It doesn’t pass the smell test.”
Lieux said Alyssa had already been allowed back into the house once, shortly after she was granted a protection order against her mother, to gather up clothing and other personal items. That order gave Alyssa seven days from Feb. 5 to make the trip in the company of police. Lieux said it didn’t allow a second visit, with or without a police escort.
Kalapos is accused of hitting and choking Alyssa during a Feb. 4 fight over her daughter’s phone, according to a police report on the incident. Alyssa told police that Kalapos became upset and attacked her when she refused to give her mother the phone.
The report said there was a cut on Alyssa’s inner upper lip, red marks on her neck and defensive marks and scratches on her hands.
Lieux said the injuries were minor and that Kalapos was within her rights under the law, which allows parents to use reasonable force to discipline their children. Mishak had filed a motion asking that Lieux be barred from making that argument during trial.
Lieux said Kalapos was trying to take her daughter’s cell phone away from her because of a poor report card and when Alyssa refused to give up the phone, Kalapos took it away and a scuffle ensued. After Kalapos got the phone, she locked it up and left the house to run errands, he said.
Alyssa called her father, who took her to the Elyria Police Department to file a complaint. Court records indicate that custody of Alyssa has now been transferred from Kalapos to Harmon.
Last week, Alyssa added new details to her account, telling police and Mishak that her mother came into her room “fully disrobed and having a hammer in her hand demanding the phone.”
Alyssa told police that when her mother couldn’t get the phone away from her, Kalapos threw the hammer at her and the tool struck the wall near the bedroom door, leaving a hole.
It was that new information that prompted Mishak to seek a search warrant, according to court documents.
Elyria Municipal Court Judge Lisa Locke Graves, who was handling the case until she removed herself Wednesday, said that Mishak asked her about getting a warrant on July 23 and again on July 24, but she refused because the incident had happened months ago.
“You need freshness for a search warrant,” she said.
Locke Graves was off last Thursday and Friday as well as Monday of this week, but after she left on vacation last week, Mishak and Lieux went to see Bennett and in that meeting Mishak again asked for a warrant, something Lieux argued against.
Bennett said he turned down the request for the same reason as Locke Graves and suggested that Mishak talk to Locke Graves when she retuned Tuesday.
Bennett and Lieux both said that during their meeting with him Mishak never told them that he had previously asked Locke Graves for a search warrant or that she had turned him down. Locke Graves said Mishak asked her a third time on Tuesday about a warrant, but she again refused.
Lieux said Mishak’s efforts to convince two judges to grant a search warrant amounted to “judge shopping,” a practice frowned upon in the legal community.
Strait said Elyria prosecutors have already agreed not to use the photos taken by Alyssa and will bring in Avon Lake Prosecutor John Reulbach Jr. to take over the case from his office.
“This issue has taken on a life of its own and to avoid any appearance of impropriety we’re bringing in a third party,” Strait said.
Locke Graves said because she and Bennett may both end up being witnesses in the dispute she will ask the Ohio Supreme Court to select a random judge from elsewhere in the state to handle the matter.