THE STATE OF OHIO, APPELLANT, v. BELLAMY, APPELLEE.
No. 2021-0481
Supreme Court of Ohio
October 19, 2022
Slip Opinion No. 2022-Ohio-3698
DONNELLY, J.
APPEAL from the Court of Appeals for Delaware County, No. 19 CAA 08 0048, 2021-Ohio-40.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Bellamy, Slip Opinion No. 2022-Ohio-3698.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2022-OHIO-3698
THE STATE OF OHIO, APPELLANT, v. BELLAMY, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Bellamy, Slip Opinion No. 2022-Ohio-3698.]
Criminal law—
(No. 2021-0481—Submitted March 29, 2022—Decided October 19, 2022.)
APPEAL from the Court of Appeals for Delaware County, No. 19 CAA 08 0048, 2021-Ohio-40.
DONNELLY, J.
{¶ 1} This discretionary appeal from a judgment of the Fifth District Court of Appeals presents us once again with the
BACKGROUND
{¶ 2} In 2018, a 16-year-old girl disclosed to her mother that the mother‘s ex-husband, Eric Bellamy, appellee, had sexually abused the girl when she was six and seven years old. Appellant, the state of Ohio, indicted Bellamy for various sex crimes in January 2019. As part of discovery, the state timely disclosed to Bellamy‘s counsel the name and curriculum vitae of its expert witness, Stuart Bassman, Ed.D. However, the state failed to provide Bellamy‘s attorney with the expert‘s report until July 17, six days before trial. In that report, Dr. Bassman noted that he had not interviewed either the defendant or the victim but was retained to explain why victims delay disclosing sexual abuse and how offenders groom their victims.
{¶ 3} The trial began on July 23, 2019. Bellamy‘s counsel did not move to exclude Dr. Bassman‘s testimony until after the lunch recess on July 24, right before the expert was to testify. The trial court overruled the defense‘s motion but gave Bellamy‘s counsel time to speak with Dr. Bassman before he testified. The expert testified, and defense counsel cross-examined him. Bellamy also testified. The jury found Bellamy guilty on all counts, and on August 1, the trial court sentenced him to 28 years to life in prison.
{¶ 4} Bellamy appealed, asserting that the trial court had erred in allowing Dr. Bassman to testify even though the state had not provided “good cause” for its delayed disclosure of his report. In March 2020, this court issued State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44, in which we held that ”
{¶ 5} Applying the holding in Boaston and finding that allowing Dr. Bassman to testify was not harmless error, the Fifth District Court of Appeals vacated the trial court‘s judgment and remanded the case to the trial court for a new trial. 2021-Ohio-40, ¶ 48. The court of appeals added that the new trial must be “without the testimony of Dr. Bassman,” id., even though Bellamy had not asked for that sanction. The court of appeals overruled the state‘s motion for reconsideration, citing the plain language of
LAW
{¶ 6}
An expert witness for either side shall prepare a written report summarizing the expert witness‘s testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert‘s qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert‘s testimony at trial.
The state asserted that its failure to comply with the rule was an oversight and Bellamy did not dispute that assertion, but there was no “good cause shown” by the state for the trial court to modify the 21-day deadline.
{¶ 7} Before Boaston, many trial courts did not apply the
{¶ 8} The issue before us now is the reach of
{¶ 9} We agree with the state. This court promulgated the Rules of Criminal Procedure as authorized by the Ohio Constitution. See
{¶ 10} We find the text‘s meaning to be obvious here. First, Black‘s Law Dictionary defines the terms “trial” and “retrial” differently. A “trial” is a “formal judicial examination of evidence and determination of legal claims in an adversary proceeding.” Id., 1812 (11th Ed.2019). A “retrial” is a “new trial of an action that has already been tried.” Id. at 1575. In promulgating
{¶ 11} Second, it is difficult to see how a defendant‘s interests are advanced by prohibiting at retrial the testimony of an expert whose testimony and report are known to the defense, while allowing the testimony of an expert with whom the defense is unfamiliar. Barring the testimony of a particular expert to punish a noncompliant party does not advance the purpose of
{¶ 12} Additionally, we do not view the prosecutorial gamesmanship that defense counsel fears as a likely outcome of our holding. The procedural history of this case is unusual in that defense counsel did not object to the expert‘s testimony until the trial was already underway. Midtrial, a continuance was not possible. We had not yet decided Boaston at the time of the trial, but as the state points out, a pretrial objection and a continuance will be the customary sequence of events now that this court has settled the law on this issue.
{¶ 13} In a fair system of criminal justice, no party should be ambushed by evidence that was not provided with ample time for review prior to a proceeding. As noted above, courts are committed to “a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large,”
CONCLUSION
{¶ 14} For these reasons, we hold that
Judgment reversed in part and cause remanded.
O‘CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, STEWART, and BRUNNER, JJ., concur.
Melissa A. Schiffel, Delaware County Prosecuting Attorney, and Christopher E. Ballard, Assistant Prosecuting Attorney, for appellant.
Campbell Law, L.L.C., and April F. Campbell, for appellee.
Steven L. Taylor, urging reversal for amicus curiae, Ohio Prosecuting Attorneys Association.