State v. RossState v. Ross
Lead Opinion
{¶ 1} This appeal presents the issue of whether a trial court, having denied a timely filed
{¶ 2} In this case, the trial court denied appellee Denny Ross’s timely filed motion for acquittal pursuant to
I. Procedural History
{¶ 3} In 1999, a Summit County grand jury indicted Denny Ross for the kidnapping, rape, murder, and aggravated murder of Hanna Hill and for tamper
{¶ 4} Before the jury trial concluded, the trial judge granted a mistrial because of juror misconduct. The jury was discharged on October 28, 2000. The trial court then discovered that the jury had filled out some of the verdict forms to acquit (with regard to the charges of aggravated murder, murder, and rape), but the court did not accept those verdicts because the jury already had been discharged.
{¶ 5} Within 14 days of the trial court’s discharge of the jury, Ross renewed his motion for acquittal, under
{¶ 6} On September 10, 2003, after the court of appeals’ decision and before the federal courts’ final resolution of Ross’s separate challenge to the mistrial in federal habeas corpus proceedings, the common pleas court in a one-page оrder denied Ross’s motions for acquittal and to perfect the jury verdicts and scheduled the case for trial on November 17, 2003.
{¶ 8} On November 6, 2003, Ross filed a supplemental memorandum in support of his renewed motion for judgment of acquittal pursuant to
{¶ 9} The trial court held a hearing on Ross’s motions, including his renewed motion for acquittal, on November 12, 2003. At that hearing, and in a written response to Ross’s renewed motion, the state objected to the trial court’s consideration of Ross’s renewed motion on the ground that it was filed well after the 14-day deadline for such motions in
{¶ 10} The state filed both an appeal as of right and a mоtion for leave to appeal. In the motion, the state sought leave to appeal the judgment entry “granting Defendant’s Motion to Reconsider the court’s Previous Denial of Defendant’s Criminal Rule 29 Motion for Judgment of Acquittal, and specifically granting the Defendant Judgment of Acquittal of the offense of Rape and the
{¶ 11} After the federal appellate court rejected Ross’s double-jeopardy claims in his habeas petition, the Ninth District Court of Appeals considered the state’s appeal of the order reconsidering denial of Ross’s acquittal motion. The court of appeals held that the trial court’s initial denial of Ross’s motion for acquittal under
II. Analysis
{¶ 12} This appeal requires us to determine whether a trial court may reconsider a timely made, but previously denied, motion for acquittal pursuant to
A
{¶ 13} The first question presented in this appeal is whether the trial court’s order purporting to reconsider and grant Ross an acquittal on the rape charge and related death-penalty specification is an order from which the state may appeal pursuant to
{¶ 14} “A prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case, * * * which decisiоn grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections 2953.21 to 2953.24 of the Revised Code, and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case.” (Emphasis added.)
{¶ 15} In addition to the orders that the statute specifies are appealable as of right,
{¶ 16} In State ex rel. Yates v. Court of Appeals for Montgomery Cty. (1987),
{¶ 17} In Yates, this court granted a writ of prohibition to prevent the court of appeals from exercising jurisdiction over the state’s attempted appeal of the acquittal. Because the appellate court was patently and unambiguously “without jurisdiction to act” to consider the state’s appeal, the availability of a remedy by appeal did not prevent issuance of a writ of prohibition. See id. at 33.
{¶ 18} Among orders that are included within “any other decision, except the final verdict,” and which the state may appeal by leave of court under
{¶ 19} In Bistricky, the trial court dismissed drug-trafficking charges against five police officers on the basis that they were entitled to the exemption in
{¶ 20} On review, this court agreed that double-jeopardy principles prohibited retrial of the defendants, but noted that resolution of the legal issue of whether the appeal was permitted would not affect the bar to retrial. Bistricky,
{¶ 21} The question here is whether the prosecutor’s appeal of the trial court’s December 22, 2003 order is authorized under
{¶ 22} The state argues that Carlisle v. United States (1996),
{¶ 23} Contrary to the state’s argument, the United States Supreme Court in Carlisle did not cast its ruling in jurisdictional terms. See Kontrick v. Ryan (2004),
{¶ 24} Eberhart v. United States (2005),
{¶ 25} The Supreme Court reversed:
{¶ 27} Thus, in Eberhart, the rule’s strict time limitation could have prevented the trial court from considering the untimely supplemental material had the government timely objected to the fact that it had been filed out of rule.
{¶ 28} The state also contends that United States v. Gupta (C.A.11, 2004),
{¶ 29} The court of appeals in Gupta reasoned that when the trial court denied the timely filed motion for acquittal, “nothing remained to be done,” except sentencing the defendants. Id. at 1174. The court of appeals treated the renewed motion as an untimely filed motion for acquittal or a new trial, which the appellate court concluded was beyond the trial court’s authority to grant. Id. Gupta predated Eberhart,
{¶ 30} The state has not pointed to an independent reason under Ohio law to believe that
{¶ 31} Therefore, the state’s cоntention that the trial court’s acquittal of Ross on the rape charge and related death-penalty specification is a nullity because the trial court was without subject-matter jurisdiction to enter it is incorrect. The question remains whether the state’s appeal in this case was proper.
3
{¶ 32} As discussed above, an appeal of the judgment of acquittal itself is not authorized under
{¶ 33} The state’s appeal, which is limited pursuant to Bistricky,
{¶ 34} Accordingly, we will answer the question whether the trial court properly recоnsidered its previous decision to deny Ross’s
B
{¶ 35} The court of appeals held that the trial court’s September 10, 2003 order denying Ross’s timely made motion for acquittal under
1
{¶ 36} To determine whether a motion for acquittal may be renewed outside the time limitations of
{¶ 38}
{¶ 39} While
2
{¶ 40} The strict time limitations in
{¶ 41} The court of appeals determined that
{¶ 42} In Pitts, we held that a motion for reconsideration of a final judgment in a civil case is a nullity. A footnote in Pitts noted in dicta that interlocutory civil orders are subject to motions for reconsideration, based on
{¶ 43} In our view,
{¶ 44} The court of appeals’ ruling in this case also provides no endpoint for a trial court’s ability to reconsider its denial of a
{¶ 45} We thus conclude that
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{¶ 46} Ross filed his supplemental memorandum in support of his renewed motion for acquittal in November 2003 — over three years after the jury had been dismissed following the mistrial, and thus well after the 14-day time frame specified in
{¶ 47} In the renewed motion, Ross urged the trial court to determine that information provided by the state after the trial (which cast doubt on the state’s expert testimony at trial concerning bite marks on the victim) undercut the rape charge and the related death-penalty specification. At the November 12, 2003 hearing on the renewed motion for acquittal, defense counsel conceded that the new bite-mark evidence was not relevant to a
{¶ 48} We conclude that Ross’s renewed motion for acquittal was effectively a new motion untimely filed outside the 14-day time period in
{¶ 49} Accordingly, the trial court in this case erred in reconsidering its initial denial of Ross’s motion for acquittal under
III. Conclusion
{¶ 50} For the above reasons, we hold that the trial court erred in granting reconsideration of its initial denial of Ross’s
{¶ 51} We have answered the substantive legal question presented in the state’s proposition of law. However, pursuant to Bistricky,
{¶ 52} Because the trial court granted Ross an acquittal on only some of the charges remaining against him, we remand this case to the trial court for further proceedings not inconsistent with this opinion. See, e.g., Smith v. Massachusetts (2005),
Cause remanded to the trial court for further proceedings.
Notes
. In federal habeas corpus proceedings, Ross also challenged the decision to grant a mistrial, asserting that any retrial would violate his rights under the Double Jeopardy Clause. The federal district court granted habeas relief, Ross v. Petro (N.D.Ohio 2005),
. Any reliance by Ross on statements allegedly made by the trial court judge during an ex parte conversation between counsel for Ross and the judge on September 11, 2003, regarding the court’s direction to file a motion to permit argument on the just-denied motions for acquittal and to perfect verdicts, or to the effect that the trial court characterized its September 10 ruling as inadvertent, is misplaced, because any such statements do not appear in the record as having taken place at a conference or hearing of the trial court.
.
. {¶ a}
{¶ b} “(A) Motion for judgment of acquittal
{¶ e} “The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state’s case.
{¶ d} “(B) Reservation of decision on motion
{¶ e} “If a motion for a judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either beforethe jury returns a verdict, or after it returns a verdict of guilty, or after it is discharged without having returned a verdict.
{¶ f} “(C) Motion after verdict or discharge of jury
{¶ g} “If a jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within fourteen days after the jury is discharged or within such further time as the court may fix during the fourteen day period. If a verdict of guilty is returned, the court may on such motion set aside the vеrdict and enter judgment of acquittal. If no verdict is returned, the court may enter judgment of acquittal. It shall not be a prerequisite to the making of such motion that a similar motion has been made prior to the submission of the case to the jury.”
Dissenting Opinion
dissenting.
{¶ 53} The court of appeals cogently summarized the issue now before this court as follows: “[W]hether, once a trial court has denied a motion for acquittal that was properly filed within 14 days after the jury was discharged following a mistrial, the trial court has authority to reconsider that denial.” State v. Ross,
{¶ 54} It has long been the law in Ohio that “a trial court has inherent power and authority to reconsider its own interlocutory rulings.” Goldman v. Transp. Leasing, Inc. (Feb. 19, 1981), Cuyahoga App. No. 42480, citing Wayne Cty. Natl. Bank v. Predmore-Henry Motor Co. (1928),
{¶ 55} The majority’s analysis focuses on “whether a renewed motion for acquittal may be made outside the time limitations of
{¶ 56} The fact that the defense filed a renewed defense motion or motion for reconsideration does not change that conclusion. Surely the trial court’s authority to reconsider an interlocutory order cannot be divested simply because a party submits a supplemental written filing — which the trial court arguably may in its
{¶ 57} Assume, hypothetically, that defense counsel for Ross had suggested orally during a court proceeding, rather than in a written filing, that counsel continued to believe that there was insufficient evidence to prove Ross’s guilt and that the earlier denial of a timely filed motion for acquittal had been wrongly decided. Under the majority’s ruling, the trial court could not thereafter review its previous decision, and it would lack the authority to correct a ruling it believed to be erroneous. In fact, the majority would preclude a trial judge from changing its interlocutory ruling sua sponte to correct what it believes to be a mistake. As a trial judge, I sometimes recognized an error in a previоus interlocutory ruling, and in that event, I would bring the matter to the attention of counsel and provide an appropriate correction. In my view, when a trial judge realizes it has erred, it is preferable for the judge to correct its mistake promptly rather than to continue with proceedings only to have that error corrected later by the court of appeals. The majority appears to preclude that result, depriving a trial court of appropriate discretionary authority and failing to promote judicial economy.
{¶ 58} It is true that pursuant to
{¶ 59} In summary,
{¶ 60} There is no convincing policy justification for creating an exception to this general rule. To the contrary, today’s decision unnecessarily opens the door to future attacks on a trial court’s inherent authority to control its own docket and correct its own interlocutory mistakes in criminal cases. One can only speculate where the slippery slope beginning with today’s decision might end.
{¶ 61} Accordingly, I dissent.