State v. Rudge

• Decision Date: 01 July 1993
• Docket Number: No. 93-T-4858,93-T-4858
• Citation: 89 Ohio App.3d 429,624 N.E.2d 1069
• Parties: The STATE of Ohio, Appellant and Cross-Appellee, v. RUDGE, Appellee and Cross-Appellant. *
• Court: Ohio Court of Appeals

Page 429

89 Ohio App.3d 429

624 N.E.2d 1069

The STATE of Ohio, Appellant and Cross-Appellee, v. RUDGE, Appellee and Cross-Appellant. ^*

No. 93-T-4858.

Court of Appeals of Ohio, Eleventh District, Trumbull County.

Decided July 1, 1993.

Dennis Watkins, Trumbull County Pros. Atty., and Peter J. Kontos, Asst. Pros. Atty., Warren, for appellant and cross-appellee.

J. Gerald Ingram, John Juhasz and Mary Jane Stephens, Youngstown, for appellee and cross-appellant.

NADER, Judge.

This appeal is from a decision of the Trumbull County Court of Common Pleas which declared a mistrial in the prosecution of appellee, Thomas L. Rudge, for two counts of aggravated murder with death and firearm specifications.

The jury trial on the guilt phase commenced on January 25, 1993. On February 5, 1993, the jury returned guilty verdicts on all counts and specifications. On February 8, the court met with the attorneys in the case to set a date for the second, or sentencing phase of the trial. On February 9, judgment on the guilty verdict was entered on the court's journal. Counsel for the defense filed a "motion for mistrial or in the alternative a new trial" on February 16, 1993.

The court declared a mistrial on March 2, 1993. Based on the court's written findings of fact and conclusions of law, a new trial was ordered on March 3, 1993.

Following the scheduling conference of February 8, one of the nondeliberating alternate jurors had contacted the court's bailiff and informed him of alleged misconduct by members of the impaneled jury. The trial court's findings of fact describe the communication as follows:

"Specifically, [the alternate juror] informed [the bailiff] that [the alternate juror] had heard a male juror, prior to opening statements on January 25, 1993, make the statement that, 'We could save a lot of time and money and just hang him now.' [The alternate juror] further informed the bailiff during that telephone conference on February 8, 1993 that on the second day of trial, January 26, 1993, [the alternate juror] overheard a female juror, who had seen the Defendant having lunch at the Saratoga Restaurant state, 'He better enjoy it now, because he won't be around much longer.' "

The bailiff informed the trial judge, who immediately contacted both counsel. The trial court's findings state:

"[T]he Court conducted an in-camera examination of the nondeliberating alternate juror, and this occurred on February 11, 1993 at 4:45 p.m, with both counsel and Defendant also in attendance."

On February 22, 1993, over the state's objections, the trial court conducted in-camera examinations of the remaining jurors and nondeliberating alternate jurors. Members of the jury corroborated the previous examination, stating that they also had heard the statements.

The members of the jury identified as those having made the improper statements denied having made the statements. Several members of the jury also stated that they had read newspaper accounts of a possible mistrial and had discussed the matter among themselves.

Finding prejudice to the defendant in the "hang him now" statement, but not in the "Saratoga" statement, the court granted the defendant's motion for a mistrial and new trial predicated upon the jury misconduct. It is from this decision that appellant now appeals, raising the following assignments of error:

"1. The trial court erred in ruling that juror 'testimony' was admissible to impeach the jury's guilt phase verdict, where the proffered 'testimony' did not fall within any exception to the prohibition against such evidence contained in Ohio Rule of Evidence 606(B).

"2. The trial court abused its discretion in declaring mistrials as to the second and first phases of defendant's trial and granting of a new trial."

The defendant-appellee cross-appeals, raising the following cross-assignments of error:

"1. The trial [sic ] erred in failing to find that juror F's statement in the Saratoga Restaurant was prejudicial to defendant.

"2. The court erred by not discharging the jury when a mistrial was ordered."

Prior to any consideration of the merits of appellant's assignments of error and appellee's cross-assignments of error, we must first address a threshold issue raised by the appellee. Appellee filed with this court a motion to dismiss the state's appeal. Appellee contends that no final order exists from which the state may appeal, and that if jurisdiction does exist to entertain this appeal, this court should decline to hear it in the exercise of its discretion.

The state has sought leave to appeal the actions of the trial court pursuant to R.C. 2945.67(A), which reads:

"A prosecuting attorney * * * may appeal as a matter or [of] right any decision of a trial court in a criminal 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." (Emphasis added.)

The state concedes that the circumstances for an appeal as of right do not exist in the instant case and, therefore, seeks leave to appeal according to the provision emphasized above. The state argues that, as no final verdict has issued, it is within our discretion to grant the appeal, citing State v. Fisher (1988), 35 Ohio St.3d 22, 517 N.E.2d 911. See, also, State v. Ulrich (1983), 17 Ohio App.3d 179, 17 OBR 368, 478 N.E.2d 809.

At the oral hearing of this matter, we requested that the issue of the finality of this appeal be further briefed, specifically referring to the unreported case of State v. Bunce (Mar. 2, 1993), Franklin App. No. 92AP-783, unreported, 1993 WL 55186.

In Bunce, the defendant was indicted on one count of receiving stolen property. At the close of the evidence at trial, jury instructions were given on both the principal offense of receiving stolen property and on complicity. Following the general jury verdict finding the defendant guilty of receiving stolen property, the trial court granted the defendant's motion for acquittal on the principal offense but declared a mistrial on the issue of complicity and further ordered a new trial on this issue. The majority found that it lacked jurisdiction over the appeal per R.C. 2945.67(A) because the judgment of acquittal of the principal offense was a final verdict. Judge Whiteside, while concurring in the dismissal for lack of jurisdiction, not only found that there was no order which would permit the state to appeal as a matter of right but further declared: "This appears to be only an order declaring a mistrial, which does not meet the requirements of R.C. 2505.02 for a final appealable order." Id. at 7 (Whiteside, J., concurring).

If there is no final appealable order as set forth in R.C. 2505.02, then we lack jurisdiction to entertain this appeal under either form of appeal designated in R.C. 2945.67(A). Section 3(B)(2), Article IV of the Ohio Constitution sets forth the jurisdiction of the courts of appeals. It provides:

"Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * *." (Emphasis added.) See, also, R.C. 2501.02 and 2953.02.

Final orders which may be reviewed by this court are delineated in R.C. 2505.02. State v. Crago (1990), 53 Ohio St.3d 243, 559 N.E.2d 1353. R.C. 2505.02 states in part:

"An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial."

The appellant characterizes the action below as an order granting a new trial, thereby falling within the purview of R.C. 2505.02. ¹ Appellee contends that the order for a new trial was merely an incidental consequence of the mistrial declaration, which is itself an interlocutory order.

The issue presented has been addressed recently in Donofrio v. Amerisure Ins. Co. (1990), 67 Ohio App.3d 272, 586 N.E.2d 1156. The opinion reads in part as follows:

"Ordinarily declaration of a mistrial and continuing a case on the trial docket is not a final appealable order. Kauffman v. Schauer (1929), 121 Ohio St. 478, 169 N.E. 566; Latimer v. Morris (1971), 27 Ohio App.2d 66, 56 O.O.2d 247, 272 N.E.2d 494; Newark Shopping Ctr. v. Morris Skilken & Co. (1964), 5 Ohio App.2d 241, 34 O.O.2d 377, 214 N.E.2d 674. A mistrial is usually declared by withdrawing a juror before a verdict is returned. A mistrial may also be ordered when a jury cannot reach a verdict. See, e.g., State v. Tubbs (Sept. 3, 1987), Cuyahoga App. No. 53497, unreported, 1987 WL 16527 (denial of a motion to acquit following a mistrial where the jury was unable to reach a verdict is not a final appealable order); Curtis v. Sega (Mar. 4, 1984), Medina App. No. 1296, unreported, 1984 WL 4785 (denial of motion for judgment following a hung jury is not a final order).

"In this case, however, we are not presented with a factual situation where the jury was unable to reach a verdict. Here the jury had reached a verdict and, until the insured requested the second jury poll, all that was left for the court to do in response to their finding was to enter judgment on the verdict. Because Juror No. 8 retracted her assent the court discharged the jury and declared a mistrial. Thus, we must resolve whether a mistrial order filed after the jury...