The Perils Of Pleading No Contest, Part II

I previously authored an article about the need to fully appreciate exactly what the consequences are of pleading no contest.  I will reiterate that there are very valid and sometimes necessary reasons for doing so.  However, sometimes the appellate court will slap you down for it.  Another instance of this can be found in State v. House, 2014-Ohio-138.

House had been charged with, among other crimes, murder and felonious assault.  In his defense, House wished to pursue a not guilty by reason of insanity defense (NGRI).  House planned to argue that due to suffering from PTSD, he was incapable of fully understanding the wrongfulness of his actions at the time of the murder.   House was referred for two separate mental health evaluations and each expert report concluded that House was competent to stand trial and that he was sane at the time of the murder.  Based upon these evaluations, the state filed a “motion in limine” requesting the trial court issue a ruling precluding House from introducing any evidence regarding his PTSD at the trial.   The state’s argument was that because the experts determined his PTSD did not affect his sanity at the time of the murder, any evidence regarding his PTSD was wholly irrelevant to the issues at hand.

A motion in limine is a preliminary ruling from the court prior to the start of trial and usually related to evidentiary issues.  “In limine” translates roughly into “at the threshold.” The purpose of the motion is to obtain an early determination regarding some contested evidence issue so that all parties are on notice as to how the court is planning to rule during trial.  This allows both sides to properly prepare their evidence, arguments and theories of the case.  However, a preliminary order by the court is just that, preliminary.  It is not binding on the court and the judge can change his or her mind during the trial.  Therefore, if a party believes that the court’s preliminary order excluding evidence is wrong, the party must still attempt to introduce the evidence at trial and have the court actually exclude it in order to preserve it for appeal.  Otherwise the party really never suffered any prejudice because, in theory, the court might have allowed the evidence to be introduced but the proponent never attempted to do so.  Although its unlikely the court would have changed its mind, without attempting to use the evidence, no one will ever truly know.

The trial court granted the state’s motion in limine and preliminarily ruled that he was prohibited from introducing any evidence regarding his PTSD and that he was not permitted to pursue a NGRI defense without any expert testimony.  Following these decisions, House waived his right to a jury trial and a bench trial commenced.  After the first day of trial, House withdrew his former plea of not guilty and entered a no contest plea.  He then appealed the trial court’s rulings that he was not permitted to introduce evidence regarding PTSD and not permitted to pursue a NGRI defense without expert testimony.  This seems like something that perhaps the court of appeals so decide, right?  Well, maybe, but the appellate court did not in this case.  Why? because House had waived his right to object to the preliminary rulings when he pleaded no contest.

The court noted that “[a]n evidential ruling, prospective or otherwise, is never final until the trial in completed [.]”  There is nothing in the opinion that shows House attempted to introduce the evidence at trial, but even if he had done so, the fact that he pleaded no contest mid-trial precluded appellate review.  Citing a few earlier opinions, the court reasoned that to allow an appellate court to review evidentiary rulings for a trial that was cut-short by defendant’s change of plea would provide the defendant an unfair advantage.  The Second District quoted a Sixth District opinion in stating, [t]o allow a defendant to plead no contest immediately following an adverse evidentiary ruling and then appeal that ruling, would be to permit a defendant to interrupt his trial any time to pass questions as to the admissibility of evidence on to the court of appeals in the hope of prevailing and having the opportunity to start his trial over again.”

The end result is that if your case involves an adverse evidentiary ruling, you will need to finish the trial to preserve the issue for appeal.  It should be noted that this does not effect the ability to appeal the denial of a motion to suppress after pleading no contest.  When a court overrules a motion to suppress evidence, that is considered a final order of the court.  In contrast, preliminary orders in limine and rulings during a trial are not final and cannot be appealed unless you finish the trial.

Just one more nuance to pay attention to when considering whether to plead no contest.

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