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upholding decision that child's statements were not excited utterances when made after the stimulus of photographs and closed-end questions
Summary of this case from State v. StreetOpinion
Nos. 92-281 and 92-526
Submitted September 16, 1992 —
Decided November 4, 1992.
APPEAL and CROSS-APPEAL from and CERTIFIED by the Court of Appeals for Lucas County, No. L-90-264.
Defendant-appellant, Westley Ulis, was indicted by the Lucas County Grand Jury on seven felony counts which included multiple death specifications on two aggravated murder charges. Various motions by both parties were brought before the trial court and hearings were held. Among the motions filed at the pretrial stage was appellant's Crim.R. 12(B) motion to suppress the testimony of Dr. Terrance Scully, who was the treating psychologist for James (Jake) McWhite, the sole surviving victim of the multiple offenses alleged in the indictment.
Appellant claimed in his motion to suppress that the testimony offered by Dr. Scully would be hearsay based upon the words of an incompetent declarant, and violate appellant's rights under the Sixth and Fourteenth Amendments to the United States Constitution, and Section 10, Article I of the Ohio Constitution. On June 8, 1990, the trial court denied appellant's motion to suppress. Consequently, both appellant and the state entered into plea negotiations which resulted in a stipulation that appellant would plead no contest in order to preserve the motion-to-suppress issue for appeal. Thus, appellant entered pleas of no contest to counts two (R.C. 2903.01[A]), three (R.C. 2903.01[A]) and five (R.C. 2923.02) of the amended indictment with the specifications for the death penalty removed. The trial court denied reconsideration of its ruling on the motion to dismiss and sentenced appellant based upon his pleas of no contest.
On appeal to the court of appeals, appellant asserted:
"The trial court erred in denying the defendant-appellant's motion to suppress the testimony of Dr. Terrance Scully as the testimony would be hearsay based on the words of an incompetent declarant and not admissible pursuant to any exception to the hearsay rule and would violate the Rules of Evidence, the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Section 10 of the Ohio Constitution."
The court vacated the trial court's judgment of conviction and sentencing and remanded the cause, holding that the motion to suppress was in fact a motion in limine, which resulted in a preliminary ruling of the court and as such was not final. Thus, the court noted the conditions under which appellant had entered his plea and, therefore, remanded the cause so that appellant could withdraw his plea, and the original charges could be reinstated against him. In reviewing the motion-to-suppress issue, the court noted that its approach conflicted with the holding of the Cuyahoga County Court of Appeals in State v. Hall (1989), 57 Ohio App.3d 144, 567 N.E.2d 305, and certified the record of the case to this court for review and final determination in case No. 92-526. The case is also before this court upon the allowance of a motion and cross-motion for leave to appeal in case No. 92-281.
Anthony G. Pizza, Prosecuting Attorney, Dean P. Mandross and John J. Weglian, Assistant Prosecuting Attorneys, for appellee and cross-appellant.
Konop Cameron and Alan S. Konop, for appellant and cross-appellee.
The single issue presented in this case is whether appellant could assert his motion to suppress at a pretrial stage. For the reasons that follow, we answer such query in the affirmative.
Both parties to this action have asserted that the court of appeals' interpretation of the motion to suppress in this case was too narrow. Crim.R. 12(B) provides, with respect to pretrial motions to suppress, that:
"Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised before trial:
"* * *
"(3) Motions to suppress evidence, including but not limited to statements and identification testimony, on the ground that it was illegally obtained. * * *" (Emphasis added.)
Moreover, Crim.R. 12(H) states that "[t]he plea of no contest does not preclude a defendant from asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppress evidence."
The court of appeals in this case held that although appellant's motion was labeled as a "Motion to Suppress," it was essentially a motion in limine because it did not allege that the evidence was obtained illegally. However, in the context of the admissibility of breathalyzer test results, this court held in Defiance v. Kretz (1991), 60 Ohio St.3d 1, 573 N.E.2d 32, syllabus, that "[a] motion to suppress is a proper pretrial procedure for challenging breathalyzer test results when the defendant is charged with a violation of R.C. 4511.19(A)(3). A plea of no contest does not waive a defendant's appeal from an adverse ruling on the motion." In Kretz, defendants alleged respectively that the breathalyzer was administered improperly and was not working properly. The trial court convicted the defendants after they filed pleas of no contest. The court of appeals affirmed the convictions because it found that the rulings on the admissibility of the breathalyzer test results were preliminary rulings on evidentiary matters and defendants' no contest pleas waived any evidentiary issues assigned as error. Kretz, supra, 60 Ohio St.3d at 2, 573 N.E.2d at 33.
In State v. Grubb (1986), 28 Ohio St.3d 199, 201-202, 28 OBR 285, 288, 503 N.E.2d 142, 145, this court stated that:
"* * * [A] motion in limine, if granted, is a tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory treatment of the evidentiary issue. In virtually all circumstances finality does not attach when the motion is granted. * * *"
This court, in reversing the court of appeals' decisions in Kretz, noted that the intent of the Criminal Rules was to "determine matters before trial when possible." Id. at 4, 573 N.E.2d at 34. Although the issues raised on motion to suppress here are constitutional in nature, the policy of early determination applies not only to constitutional issues but also to non-constitutional claims capable of determination without a trial on the general merits. State v. Hennessee (1984), 13 Ohio App.3d 436, 438, 13 OBR 525, 527, 469 N.E.2d 947, 950; Kretz, supra. This policy could be thwarted if the state and a defendant would be subjected to a trial where the case hinges upon an evidentiary issue capable of determination without additional evidence being elicited by either party.
In State v. Hall (1989), 57 Ohio App.3d 144, 567 N.E.2d 305, the issue before the Cuyahoga County Court of Appeals was whether the denial of a defendant's motion in limine could be the basis for an appeal where the testimony concerning other acts by the defendant, if introduced at trial, would be highly prejudicial to his case. The Hall court observed that where a motion in limine is treated as a motion to suppress ( i.e., a hearing is held at which testimony that is the subject of the motion is fully presented with cross-examination), any error in the trial court's ruling on the motion may be preserved for review, provided the court informs the defendant that he may preserve his right to appeal on the motion by pleading no contest rather than guilty. Id. at 146, 567 N.E.2d at 308.
In the case at bar, the trial court conducted a full-blown hearing where testimony was elicited upon the constitutional claims that were the subject of the motion, both parties were provided with cross-examination, and the parties stipulated that any error in the trial court's ruling on the motion would be preserved for review. Also, the record discloses that the trial court treated appellant's motion as a motion to suppress and approved of the stipulation negotiated by the parties in order to obtain appellant's plea of no contest.
Accordingly, for the foregoing reasons, the judgment of the court of appeals is reversed and the cause is remanded to the court of appeals to treat the merits of the trial court's decision on appellant's motion to suppress.
Judgment reversed and cause remanded.
MOYER, C.J., SWEENEY, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.
RESNICK, J., not participating.