Man’s Appeal Challenging Sixth Trial Will Be Heard
The Supreme Court of Ohio sent a case back to an appellate court today to consider the merits of an appeal from an Austintown man who is protesting an indictment that could lead to his sixth trial for a 2003 murder.
In a 7-0 decision, the Supreme Court ruled that the order by a trial court denying Christopher Anderson’s request to dismiss the murder indictment on double-jeopardy grounds is the type of order the appeals court has the authority to review.
In an opinion authored by Chief Justice Maureen O’Connor, the court affirmed the decision of the Seventh District Court of Appeals that the trial court’s dismissal of Anderson’s motion on double-jeopardy grounds was a final and appealable order. “The denial of an interlocutory appeal to an accused arguing that a prosecution is barred by double jeopardy vitiates one of the very protections the [U.S.] [C]onstitution provides: the right not to be improperly forced to stand trial repeatedly for the same offense,” Chief Justice O’Connor wrote. (An interlocutory appeal is an appeal prior to a court issuing final judgment in a case.)
In June 2003, Amber Zurcher met friends at a bar in Youngstown. After the bar closed, a group of people, including Anderson, went to Zurcher’s Austintown apartment and continued to drink. Anderson and two of Zurcher’s friends were the last to leave her apartment around 3:50 a.m. Zurcher’s mother became concerned a few hours later when Zurcher did not pick up her son as planned, and she went to her daughter’s home, finding Zurcher dead on the floor.
The coroner determined that Zurcher was strangled and suffered multiple bruises. A DNA sample from one of the bruises was consistent with Anderson’s genetic profile. On the day of Zurcher’s burial, three days after her murder, Anderson attended a gathering where witnesses noticed his hands and arms had scratches not there days earlier.
Anderson was arrested and indicted for Zurcher’s murder.
His first trial, in 2003, ended in a mistrial because of the undue prejudice caused by a witness’s testimony. In his second trial, testimony barred in the first trial was permitted, and Anderson was convicted of murder. However, on appeal, the Seventh District reversed the conviction, concluding that the testimony of previous bad acts by Anderson should not have been allowed.
Anderson’s third trial resulted in a hung jury, the fourth in mistrial, and the fifth again in a hung jury.
When his sixth trial date was set in 2011, Anderson filed a motion to dismiss the indictment, arguing that a sixth trial would violate his right to protection from double jeopardy (being tried or punished twice for the same crime) and his right to due process (to receive a fair and impartial trial). The trial court disagreed, and Anderson appealed the decision to the Seventh District.
The state argued that Anderson could not appeal the trial court’s order dismissing the motion because such an order is not final and appealable. A panel of the appeals court ruled the order can be appealed, and the state requested that the full appeals court consider the issue (an en banc hearing). The full court split 2-2 on the issue, which meant Anderson’s appeal could be heard. However, the state appealed the Seventh District’s decision to the Ohio Supreme Court.
In today’s opinion, Chief Justice O’Connor explained that appellate courts have jurisdiction to review trial court judgments or final orders in criminal cases and that a “final order” in a criminal proceeding is defined in R.C. 2505.02. She wrote that in 1998 the General Assembly expanded the statute’s definitions of “final order,” adding two more categories.
Specifically, the chief justice focused on the definition in R.C. 2505.02(B)(4), in which “three requirements must be satisfied: (1) the order must grant or deny a provisional remedy as that term is defined in the statute, (2) the order must in effect determine the action with respect to the provisional remedy, and (3) the appealing party would not be afforded a meaningful review of the decision if that party had to wait for final judgment as to all proceedings in the action.”
First, she noted that a “provisional remedy” is defined by statute as “‘a proceeding ancillary to an action.’” Based on the common meaning of “ancillary proceeding,” the court concluded that Anderson’s motion to dismiss on double jeopardy grounds is an ancillary proceeding because: “A motion to dismiss on double-jeopardy grounds ‘grows out of’ the primary suit, i.e., the prosecution. The act of prosecution triggers a defendant’s constitutional protection against double jeopardy. A motion to dismiss is certainly ‘attendant’ upon the underlying prosecution because it is ‘consequent; concomitant; associated; [and] related’ to the prosecution.”
The second part of the definition is also met, Chief Justice O’Connor reasoned, because a trial court’s decision on a motion to dismiss for double jeopardy “determines the action” by permitting or preventing a subsequent prosecution.
Third, the court examined whether Anderson would not receive a meaningful review of the decision if he had to wait for final judgment in the proceedings. In so holding, Chief Justice O’Connor quoted from the U.S. Supreme Court’s decision in Abney v. United States (1977):
[I]f a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.
In the context of double jeopardy, Chief Justice O’Connor continued, an appeal after a conviction is not an adequate remedy.
“We therefore conclude that an accused would not be afforded a meaningful review of an adverse decision on a motion to dismiss and discharge on double-jeopardy grounds if that party must wait for final judgment as to all proceedings in order to secure review of the double-jeopardy decision,” she wrote.
She added that because the court has determined the trial court’s dismissal of Anderson’s motion on double-jeopardy grounds is a final, appealable order, the court did not need to address whether a dismissed motion on due-process grounds is also a final, appealable order.
The chief justice also noted that the court is not bound by its earlier decision in State v. Crago (1990) because that case was decided based on an earlier, narrower definition of “final order” in R.C. 2505.02, nor is it constrained by its 1993 decision in Wenzel v. Enright, which relied on Crago.
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