State v. Ulis

• Decision Date: 04 November 1992
• Docket Number: Nos. 92-281,92-526,s. 92-281
• Citation: 600 N.E.2d 1040,65 Ohio St.3d 83
• Parties: The STATE of Ohio, Appellee and Cross-Appellant, v. ULIS, Appellant and Cross-Appellee.
• Court: Ohio Supreme Court

Page 83

65 Ohio St.3d 83

600 N.E.2d 1040

The STATE of Ohio, Appellee and Cross-Appellant, v. ULIS, Appellant and Cross-Appellee.

Nos. 92-281, 92-526.

Supreme Court of Ohio.

Submitted Sept. 16, 1992.

Decided Nov. 4, 1992.

Defendant-appellant, Westley Ulis, was indicted by the Lucas County Grand Jury on seven felony counts which included multiple death specifications on two aggravated murder charges. Various motions by both parties were brought before the trial court and hearings were held. Among the motions filed at the pretrial stage was appellant's Crim.R. 12(B) motion to suppress the testimony of Dr. Terrance Scully, who was the treating psychologist for James (Jake) McWhite, the sole surviving victim of the multiple offenses alleged in the indictment.

Appellant claimed in his motion to suppress that the testimony offered by Dr. Scully would be hearsay based upon the words of an incompetent declarant, and violate appellant's rights under the Sixth and Fourteenth Amendments to the United States Constitution, and Section 10, Article I of the Ohio Constitution. On June 8, 1990, the trial court denied appellant's motion to suppress. Consequently, both appellant and the state entered into plea negotiations which resulted in a stipulation that appellant would plead no contest in order to preserve the motion-to-suppress issue for appeal. Thus, appellant entered pleas of no contest to counts two (R.C. 2903.01[A] ), three (R.C. 2903.01[A] ) and five (R.C. 2923.02) of the amended indictment with the specifications for the death penalty removed. The trial court denied reconsideration of its ruling on the motion to dismiss and sentenced appellant based upon his pleas of no contest.

On appeal to the court of appeals, appellant asserted:

"The trial court erred in denying the defendant-appellant's motion to suppress the testimony of Dr. Terrance Scully as the testimony would be hearsay based on the words of an incompetent declarant and not admissible pursuant to any exception to the hearsay rule and would violate the Rules of Evidence the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Section 10 of the Ohio Constitution."

The court vacated the trial court's judgment of conviction and sentencing and remanded the cause, holding that the motion to suppress was in fact a motion in limine, which resulted in a preliminary ruling of the court and as such was not final. Thus, the court noted the conditions under which appellant had entered his plea and, therefore, remanded the cause so that appellant could withdraw his plea, and the original charges could be reinstated against him. In reviewing the motion-to-suppress issue, the court noted that its approach conflicted with the holding of the Cuyahoga County Court of Appeals in State v. Hall (1989), 57 Ohio App.3d 144, 567 N.E.2d 305, and certified the record of the case to this court for review and final determination in case No. 92-526. The case is also before this court upon the allowance of a motion and cross-motion for leave to appeal in case No. 92-281.

Anthony G. Pizza, Pros. Atty., Dean P. Mandross and John J. Weglian, Asst. Pros. Attys., for appellee and cross-appellant.

Konop & Cameron and Alan S. Konop, Toledo, for appellant and cross-appellee.

HOLMES, Justice.

The single issue presented in this case is whether appellant could assert his motion to suppress at a pretrial stage. For the reasons that follow, we answer such query in the affirmative.

Both parties to this action have asserted that the court of appeals' interpretation of the motion to suppress in this case was too narrow. Crim.R. 12(B) provides, with respect to pretrial motions to suppress, that:

"Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised before trial:

" * * *

"(3) Motions to suppress evidence, including but not limited to statements and identification testimony, on the ground that it was illegally obtained. * * * " (Emphasis added.)

Moreover, Crim.R. 12(H) states that "[t]he plea of no contest does not preclude a defendant from asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppress evidence."

The court of appeals in this case held that although appellant's motion was labeled as a "Motion to Suppress," it was essentially a motion in limine ¹ because it did not allege that the evidence was obtained illegally. However, in the context of the admissibility of breathalyzer test results, this court held in Defiance v. Kretz (1991), 60 Ohio St.3d 1, 573 N.E.2d 32, syllabus, that "[a] motion to suppress is a proper pretrial procedure for challenging breathalyzer test results when the defendant is charged with a violation of R.C. 4511.19(A)(3). A plea of no contest does not waive a defendant's appeal from an adverse ruling on the motion." In Kretz, defendants alleged respectively that the breathalyzer was administered improperly and was not working properly. The trial court convicted the defendants after they filed pleas of no contest. The court of appeals affirmed the convictions because it found that the rulings on the admissibility of the breathalyzer test results were preliminary rulings on evidentiary matters and defendants'...