State v. Malinovsky

• Decision Date: 15 May 1991
• Docket Number: No. 90-317,90-317
• Citation: 60 Ohio St.3d 20,573 N.E.2d 22
• Parties: The STATE of Ohio, Appellant, v. MALINOVSKY, Appellee.
• Court: Ohio Supreme Court

Page 20

60 Ohio St.3d 20

573 N.E.2d 22

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

No. 90-317.

Supreme Court of Ohio.

Submitted Feb. 5, 1991.

Decided May 15, 1991.

Syllabus by the Court

1. Because of the procedural safeguards provided by certification, Crim.R. 12(J) allows for expedited appeals from evidentiary rulings during trial without impermissibly infringing upon a defendant's interest in an uninterrupted trial.

2. The Double Jeopardy Clause does not bar reprosecution where a criminal prosecution is dismissed for failure to prosecute after the trial court has erroneously required the state to proceed with trial despite the state's properly filed Crim.R. 12(J) appeal.

On March 9, 1989, the Grand Jury of Lorain County returned a four-count indictment against John Malinovsky, the Chief of Police for the city of Lorain. The indictment charged Malinovsky with extortion, perjury, obstructing official business, and interfering with civil rights. The state alleged that Malinovsky ordered a police officer under his command, Sergeant Wayne Long, to intimidate two fire inspectors into overlooking fire code violations at a bingo parlor run by Malinovsky's daughter.

The state's case was based on the testimony of the two fire inspectors. From the outset, the state intended to have the fire inspectors testify as to what Long said to them, which testimony directly implicated Malinovsky. The state also intended to enter into evidence a tape recording of a telephone conversation between Long and Roger A. Thomas, one of the fire inspectors, which implicated Malinovsky in a like manner.

Recognizing potential hearsay problems with this evidence and the critical nature of same to its case, the state attempted to secure a ruling on the admissibility of the evidence through pretrial motions. On May 12, 1989, the state filed a "Notice of Intention to Use Evidence" in an effort to elicit a motion pursuant to Crim.R. 12 from Malinovsky. On May 30, 1989, the state filed a "Motion to Compel Defense to File Objections" concerning the admissibility of the telephone conversation recording. This motion was overruled and the case proceeded to trial without resolving any questions concerning the admissibility of either the recording or the testimony crucial to the state's case.

At trial, the state's fears were realized. When the state asked Anthony M. Cuevas, the other fire inspector, to recount what Long said that Malinovsky had said, the defense objected and the court sustained the objection. The state argued that the testimony was not hearsay because it was a statement made by a co-conspirator in furtherance of a conspiracy pursuant to Evid.R. 801(D)(2)(e). However, the trial court apparently found that the state had not met its burden under the rule requiring independent proof of the conspiracy.

The court then recessed, during which time the state filed notice that it was taking a Crim.R. 12(J) appeal from this adverse ruling by the trial court. Although failing initially to do so, by the end of the recess the state had certified that this appeal was not taken for the purpose of delay and that the court's evidentiary ruling had destroyed the state's case. The trial court ordered the state to continue with its case, despite the appeal. After a faltering attempt to continue, the state announced that it could not go forward without the excluded testimony. The court then dismissed the case for failure to prosecute.

The Court of Appeals for Lorain County dismissed the appeal, holding that Crim.R. 12(J) does not provide for a mid-trial appeal of an evidentiary ruling. The appellate court also held that the Double Jeopardy Clause barred future prosecution.

The cause is now before this court upon the allowance of a motion for leave to appeal.

Gregory A. White, Pros. Atty., and Jonathan E. Rosenbaum, Elyria, for appellant.

Smith & Smith, Daniel G. Wightman and Gerald M. Smith, Avon Lake, for appellee.

Michael Miller and Alan C. Travis, Columbus, urging reversal, for amicus curiae, Ohio Prosecuting Attys. Ass'n.

WRIGHT, Justice.

The General Assembly has granted prosecutors the right of appeal from an adverse ruling on a motion to suppress evidence prior to final disposition of a criminal prosecution. Crim.R. 12(J) reads:

" * * * The state may take an appeal as of right from the granting of a motion for the return of seized property, or from the granting of a motion to suppress evidence if, in addition to filing a notice of appeal, the prosecuting attorney certifies that: (1) the appeal is not taken for the purpose of delay; and (2) the granting of the motion has rendered 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.

"Such appeal shall not be allowed unless the notice of appeal and the certification by the prosecuting attorney are filed with the clerk of the trial court within seven days after the date of the entry of the judgment or order granting the motion. Any appeal taken under this rule shall be diligently prosecuted.

"If the defendant has not previously been released, he shall, except in capital cases, be released from custody on his own recognizance pending such appeal when the prosecuting attorney files the notice of appeal and certification."

Additionally, R.C. 2945.67 provides a similar right to appeal:

"(A) A prosecuting attorney, village solicitor, city director of law, or the attorney general may appeal as a matter or [of] right any decision of a trial court in a criminal case, or any decision of a juvenile court in a delinquency case, which decision 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 or of the juvenile court in a delinquency case.

"(B) In any proceeding brought pursuant to division (A) of this section, the court shall, in accordance with Chapter 120. of the Revised Code, appoint the county public defender, joint county public defender, or other counsel to represent any person who is indigent, is not represented by counsel, and does not waive his right to counsel."

In State v. Davidson (1985), 17 Ohio St.3d 132, 17 OBR 277, 477 N.E.2d 1141, at the syllabus, we defined "motion to suppress" as used in Crim.R. 12(J) to include "[a]ny motion, however labeled, which, if granted, restricts the state in the presentation of certain evidence and, thereby, 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 * * *."

Davidson involved a pretrial motion in limine seeking to exclude evidence, not due to constitutional infirmity, but rather, under the Rules of Evidence. We made no comment in Davidson as to the applicability of Crim.R. 12(J) to evidentiary rulings at trial. Today, we are asked to decide whether a prosecutor may file a Crim.R. 12(J) appeal during trial.

The defendant argues that a mid-trial evidentiary ruling is not a final appealable order and, hence, not appealable until final disposition of the case. The defendant further argues that because the state cannot appeal during trial, the subsequent dismissal for failure to prosecute coupled with the Double Jeopardy Clause bars reprosecution.

I

The defendant's arguments point directly to the problem that Crim.R. 12(J) was designed to address. A criminal defendant prejudiced by an adverse evidentiary ruling has the absolute right of appeal after conviction, and, if successful, may obtain meaningful relief. Prior to the adoption of Crim.R. 12(J), the state lacked this remedy. If the state was prejudiced by an adverse evidentiary ruling resulting in an acquittal, the state had no meaningful recourse, as the Double Jeopardy Clause barred retrial. In response, the adoption of Crim.R. 12(J) and enactment of R.C. 2945.67 were designed to preclude the loss of a worthy criminal case solely due to an erroneous ruling by a trial court.

While we have not previously considered whether a Crim.R. 12(J) appeal lies mid-trial, the state faces the same prospect of losing cases due to mistaken evidentiary rulings during trial as it does before trial. Once trial has begun, however, the defendant has an important interest in having his or her case decided by the jury impaneled to hear same. This interest arises from a defendant's right to a speedy trial and a defendant's double jeopardy guarantee to be free from multiple prosecutions. However, this interest is not absolute. See United States v. Scott (1978), 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65; State v. Calhoun (1985), 18 Ohio St.3d 373, 18 OBR 429, 481 N.E.2d 624.

We are thus faced with the question of whether the defendant's interest in an uninterrupted trial outweighs the state's interest in effective prosecutions. Because of the procedural safeguards provided by certification, we hold that Crim.R. 12(J) allows for expedited appeals of evidentiary rulings during trial without impermissibly infringing upon a defendant's interest in an uninterrupted trial.

Crim.R. 12(J) does not provide the state with an unfettered right of appeal. The certification element of Crim.R. 12(J) provides the defendant with protection from prosecutorial abuse and harmonizes the appeal with the final order requirement of the Ohio Constitution. ¹ Under Crim.R. 12(J) the state must certify that the appeal is not taken for the purpose of delay and that the complained-of ruling destroys the state's case. Because the state certifies that the ruling destroys its case, the ruling is, in essence, a final order.

II

We next turn to defendant's double...