State v. Arnett, 85-901

• Decision Date: 26 February 1986
• Docket Number: No. 85-901,85-901
• Citation: 22 Ohio St.3d 186,489 N.E.2d 284,22 OBR 272
• Parties: , 22 O.B.R. 272 The STATE of Ohio, Appellant, v. ARNETT, Appellee.
• Court: Ohio Supreme Court

Page 186

22 Ohio St.3d 186

489 N.E.2d 284, 22 O.B.R. 272

The STATE of Ohio, Appellant, v. ARNETT, Appellee.

No. 85-901.

Supreme Court of Ohio.

Feb. 26, 1986.

Syllabus by the Court

Pursuant to R.C. 2945.67(A), a court of appeals has jurisdiction to grant the state leave to appeal from a decision of the trial court on the admissibility of evidence, notwithstanding the acquittal of the defendant.

James M. Arnett, appellee, was tried in the Court of Common Pleas of Scioto County on a charge of murder. At trial, Arnett supported his claim of self-defense with expert testimony concerning his belief that his life was endangered when he shot and killed the victim. Dr. Eugene Goodwin, a psychiatrist, testified that after administering sodium amytal to Arnett, he asked Arnett questions concerning his mental state at the time of the shooting. Based on this examination, Dr. Goodwin stated that, in his opinion, Arnett was quite afraid that his life was in danger at the time of the shooting. Dr. Willis Driscoll, a psychologist, testified that he placed Arnett under hypnosis for purposes of establishing his state of mind at the time of the shooting. In Dr. Driscoll's opinion, Arnett was intensely fearful for his life at the time of the shooting. The state timely objected to the testimony of Drs. Goodwin and Driscoll.

The jury returned a verdict of not guilty. The state sought leave to appeal the trial court's evidentiary rulings. The Court of Appeals for Scioto County stated that the appeal raised a substantial legal issue but it nevertheless dismissed the appeal, holding that the judgment of acquittal precluded it from granting the state leave to appeal the evidentiary orders. Finding its decision to be in conflict with the decision of the Court of Appeals for Franklin County in State v. Burkhart (1984), 14 Ohio App.3d 446, 472 N.E.2d 52, the court of appeals certified the record of the case to this court for review and final determination.

Lynn Alan Grimshaw, Prosecuting Atty., and R. Randolph Rumble, Portsmouth, for appellant.

Roger L. Clark, Portsmouth and Joseph Hale, McDermott, for appellee.

WRIGHT, Justice.

The sole issue raised in this appeal is whether the state may seek leave to appeal an order under R.C. 2945.67 after a jury has returned a verdict of acquittal. R.C. 2945.67(A) provides:

"A prosecuting attorney * * * 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.)

A comparable situation was presented to this court in State v. Keeton (1985), 18 Ohio St.3d 379, 481 N.E.2d 629. In that case, the trial court entered judgments of acquittal and the state sought leave to appeal various evidentiary rulings that it contended were erroneous. The court of appeals dismissed the appeals claiming it lacked jurisdiction because a final verdict had been issued.

This court held at 18 Ohio St.3d 381, 481 N.E.2d 629:

"A directed verdict of acquittal by the trial judge in a criminal case is a 'final verdict' within the meaning of R.C. 2945.67(A) which is not appealable by the state as a matter of right or by leave to appeal pursuant to that statute.

"However, the evidentiary rulings in this case, while they do not fall within the provisions of R.C. 2945.67(A) granting an appeal as of right, do fall within the language of 'any other decision, except the final verdict * * * ' in R.C. 2945.67(A) which permits an appeal to the court of appeals after leave has first been obtained.

"The state in seeking 'appeal by leave of the court to which the appeal is taken' under R.C. 2945.67(A) must follow the procedure outlined in State v. Wallace (1975), 43 Ohio St.2d 1, 330 N.E.2d 697 . This includes compliance with App.R. 5(A). Under these procedural guidelines the court of appeals in this cause must decide, upon remand, whether in its sound discretion the state should be granted leave to appeal the above-mentioned decision of the trial court."

Accordingly we reiterate that, pursuant to R.C. 2945.67(A), a court of appeals has jurisdiction to grant the state leave to appeal from a decision of the trial court on the admissibility of evidence, notwithstanding the acquittal of the defendant.

Thus, we reverse the judgment of the court of appeals and remand this cause to that court for further proceedings in accordance with this opinion.

Judgment reversed and cause remanded.

LOCHER, HOLMES, CLIFFORD F. BROWN and DOUGLAS, JJ., concur.

CELEBREZZE, C.J., and SWEENEY, J., dissent.

CELEBREZZE, Chief Justice dissenting.

This court has long observed that "[u]nless permitted by statute, the weight of authority in this country is against the right of the government to bring error in a criminal case." State v. Simmons (1892), 49 Ohio St. 305, 307, 31 N.E. 34. See, also, 27 Ohio Jurisprudence 3d (1981) 764, Criminal Law, Section 1433. In recognition of the importance of allowing appellate review of certain trial court decisions which are adverse to the position of the prosecution, the General Assembly enacted R.C. 2945.67 as an exception to the general rule. Our task therefore is to determine what trial court rulings may be reviewed under this legislative grant and the appropriate time for the state to appeal decisions alleged to be erroneous.

Practical considerations, necessitated by the vital constitutional provision against double jeopardy, lead to a conclusion that appellate review of trial court decisions following a judgment of acquittal are useless, or, at best, suspect because the cause is moot. The apparent purpose behind the enactment of R.C. 2945.67 is to authorize appeals by the state in a manner which does not defeat double jeopardy principles and which also preserves the longstanding judicial policy prohibiting advisory opinions. ¹ Both goals can be achieved if R.C. 2945.67 is construed to authorize the state to seek leave to appeal from interlocutory rulings at the time they occur and before a judgment of acquittal has been entered which may render the question moot, as occurred in the case at bar. This was the procedure followed in State v. Ferman (1979), 58 Ohio St.2d 216, 389 N.E.2d 843 . Moreover, the statute unquestionably grants a mid-trial appeal as of right when the evidentiary determination " * * * renders the state's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed * * *." State v. Davidson (1985), 17 Ohio St.3d 132, 477 N.E.2d 1141, syllabus. It is entirely consistent to authorize a discretionary mid-trial appeal where the evidentiary rulings under consideration are not so unambiguously detrimental to the state's case.

In Euclid v. Heaton (1968), 15 Ohio St.2d 65, 70, 238 N.E.2d 790 , this court affirmed the court of appeals' judgment that the predecessor to R.C. 2945.67 did not authorize an advisory opinion where the defendant was not in jeopardy. The policy against rendering advisory opinions was discussed by Justice Schneider at 15 Ohio St.2d 77, 238 N.E.2d 790, as follows: " * * * the problem is not a want of jurisdiction, but one of the 'objectionable consequences that would result from such an exercise of jurisdiction,' * * * quoted in United States v. Evans, 213 U.S. 297, 53 L.Ed. 803, 29 S.Ct. 507 * * *: ' "The appellee in such case, having been freed from further prosecution by the verdict in his favor, has no interest in the question that may be determined in the proceedings on appeal and may not even appear. Nor can his appearance be enforced. Without opposing argument, which is so important to the attainment of a correct conclusion, the court is called upon to lay down rules that may be of vital interest to persons who may hereafter be brought to trial. All such persons are entitled to be heard on all questions affecting their rights, and it is a harsh rule that would bind them by...