Jury Matters

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

Criminal Rule 23 -- Trial by jury or by the court.
Criminal Rule 24 -- Trial jurors.
Evidence Rule 606 -- Competency of Juror as Witness.
R.C. Chapter 2313 -- Commissioners of Jurors.
R.C. 2945.25 -- Causes of challenging jurors.

In General

Presley v. Georgia (2010), 130 S.Ct. 721 – Judge told the defendant’s uncle he would have to leave the courtroom during jury selection. Concerns were lack of space and the possibility something might be said. Held that trial courts must consider alternatives to closure. The right to a public trial is protected both by the Sixth Amendment and the First.
 
State v. Montiero, 189 Ohio App. 3d 655, 2010-Ohio-4076 – A juror must be an elector or have the qualifications of an elector, including citizenship. Though a juror said he was Canadian, neither side objected though he was not qualified to sit as a juror. Error was waived by failure to object. Since the citizenship requirement rests on statute, not constitutional rights, it does not constitute structural error.
 
Columbus v. Nearhood, 193 Ohio App. 3d 178, 2011-Ohio-905 – Judge excused hearing impaired juror. This was within his discretion as an interpreter would have to be present during deliberation, when only jurors may be in the room. Furthermore, a hearing impaired juror would be unable to perceive and evaluate matters such as tone of voice.
 
State v. Fisher, 99 Ohio St. 3d 127, 2003-Ohio-2761 -- Syllabus: "The practice of allowing jurors to question witnesses is a matter within the discretion of the trial court." Court declines to find juror questioning is structural error in that it violates the right to an impartial jury. Nor is it nonconstitutional error. The court endorses the procedural safeguards of: (1) Submission of questions in writing. (2) Jurors are not to discuss questions with other jurors before they are read to a witness. (3) Counsel must have an opportunity to object at sidebar. (4) Jurors are to be instructed not to draw adverse inferences from the refusal to submit a question. (5) Counsel may ask follow up questions. Followed: State v. McCarty, 154 Ohio App. 3d 737, 2003-Ohio-5199.  See proposed Rule 24(J).
 
State ex rel. Beacon Journal Publishing Company v. Bond, 98 Ohio St. 3d 146, 2002-Ohio-7117 -- Syllabus: "(1) Juror names, addresses, and questionnaire responses are not 'public records' as contemplated by R.C. 149.43. Juror questionnaires without responses, however, constitute 'public records' for purposes of that section. (2) The First Amendment qualified right of access extends to juror names, addresses, and questionnaires, thereby creating a presumption of openness that may be overcome only 'by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.' (Press-Enterprise Co. v. Superior Court [1984], 464 U.S. 501, 510...followed).
 
State v. Hill (2000), 136 Ohio App. 3d 636 -- Adherence to a local rule imposing the anonymous jury system in all cases requires reversal. Though counsel did not object, the error is structural, and thus not subject to plain error analysis. The anonymous jury system might be appropriate when a particularized need is demonstrated, as in the federal courts. Otherwise, any change to the jury system requires "jealous scrutiny." Reversed: State v. Hill (2001), 92 Ohio St. 3d 191. Court holds that the use of anonymous jury is not structural error. Nor does it arise to plain error in this case. Question remains whether an anonymous jury may be empaneled over timely objection.
 
State v. Gilden (2001), 144 Ohio App. 3d 69, 71 -- "...(Q)uestioning by jurors is so inherently prejudicial that it should not occur under any circumstances." Opinion cites numerous cases from other states supporting this conclusion. Court had posed written questions from jurors. Compare State v. Smith 148 Ohio App. 3d 665, 2002-Ohio-4091; State v. Crowley, 151 Ohio App. 3d 249, 2002-Ohio-7366, ¶13-15; State v. Ray, Franklin App. No. 02AP-487, 2003-Ohio-1890 (not plain error).
 
State v. Vanblarcome, Franklin App. No. 02AP-417, 2003-Ohio-579 -- From the record it appears that the jury was sworn by an unidentified woman out of the presence of the judge and probably not in the defendant's presence. Error waived because it was not called to the attention of the trial court. Also see State v. Glaron (1960), 170 Ohio St. 471.
 
State v. Benge (1996), 75 Ohio St. 3d 136, 143-144 -- Absent clear evidence on the record that the jury was affected by an emotional display by members of the victim's family upon leaving the courtroom, or an attack on the defendant on the courthouse steps, an appellate court is at a disadvantage in determining the impact such conduct had on the outcome of the trial. Also see State v. Morales (1987), 32 Ohio St. 3d 252; State v. Bradley (1965), 3 Ohio St. 2d 38; State v. Bey (1999), 85 Ohio St. 3d 487, 500.
 
State v. Waddell (1996), 75 Ohio St. 3d 163 -- Syllabus: "(1) A trial court has the discretion to permit or prohibit note-taking by jurors. If a trial court determines that a particular case warrants note-taking, the court can, sua sponte, furnish jurors with materials for taking notes and instruct the jurors that they are permitted to take notes during the trial. (2) When instructing jurors that note-taking is permitted, the trial court should also instruct the jurors that they are not required to take notes. (3) If note-taking is permitted, the trial court should caution the jurors that their notes are to be confidential, that note-taking should not divert their attention from hearing the evidence in the case, that a juror who has not taken notes should not be influenced by those jurors who decide to take notes, and that notes taken by jurors are to be used solely as memory aids and should not be allowed to take precedence over their independent memory of fasts. (Corbin v. Cleveland [1944], 144 Ohio St. 32...overruled to the extent inconsistent herewith.)"
 
State v. Wayt (1992), 83 Ohio App. 3d 848, 853-858 -- While the practice of allowing jurors to pose questions to witnesses may be acceptable, though controversial, counsel must be afforded a full opportunity to further examine the witness.
 
State v. Thomas (1980), 61 Ohio St. 2d 223 -- Misdemeanants may be joined for trial with felons before a twelve member jury. Also see Criminal Rule 23(B) which calls for a jury of twelve when a defendant is charged with both a misdemeanor and a felony.
 
State v. Johnson (1972), 31 Ohio St 3d 106 -- No denial of due process where trials of three codefendants were conducted concurrently, in separate courtrooms.
 
State v. Hammer (1992), 82 Ohio App. 3d 663, 666 -- Trial court did not err in having minor misdemeanor traffic charges tried to the same jury hearing a related vehicular homicide charge.
 
State v. Owens (1996), 112 Ohio App. 3d 334 -- Seating an alternate to replace a juror reportedly at an emergency room was not an abuse of discretion and did not require a showing of manifest necessity.
 
State v. Meade (1997), 80 Ohio St. 3d 419 -- Not happy when plea negotiations on the morning of trial indicated he would have to serve time, the defendant left the courthouse. Jury selection had not started, but the judge proceeded to try the defendant in absentia. Reversed. Syllabus: "A jury trial commences after the jury is impanelled and sworn in the presence of the defendant. [Crim. R. 43(A), construed and applied.]
 
State, ex rel., Chillicothe Gazette, Inc., v. Court (1982), 2 Ohio St. 3d 24 -- Determination of motion to restrain press from publishing names, addresses and telephone numbers of prospective jurors must be determined according to the standards of Nebraska Press Association v. Stuart (1976), 427 U.S. 539. Also see State, ex rel. National Broadcasting Co., v. Lake County Court of Common Pleas (1990), 52 Ohio St.3d 104.

Right to Jury Trial

Cincinnati v. Smith, 180 Ohio App. 3d 587, 2009-Ohio-143 – Defendant wanted a jury trial on a new prostitution charge, but pled no contest as to probation revocation. Judge was willing to continue probation if she plead to the solicitation, but eh defendant held to her wish to have a jury trial. Judge gave her 180 days on the probation violation and suggested she reconsider jury trial on the new charge which carried a maximum of 60 days. She folded and probation was continued with additional conditions. Plea was coerced. Reversed. In Anglo-American jurisprudence the right to jury trial has been sacrosanct since at least 1215.
 
Apprendi v. New Jersey (2000), 530 U.S. 466 -- Except for prior convictions, any fact which increases the penalty for a crime beyond the statutory maximum must be charged and proved beyond a reasonable doubt at trial. Also see Castillo v. United States (2000), 530 U.S. 120, 120 S.Ct. 2090. Compare Harris v. United States (2002), 122 S.Ct. 2406 concluding that increasing mandatory minimum sentences based on the manner a firearm was employed in the commission of an offense were sentencing factors within a single federal drug offense and a proper subject for judicial determination.
 
Ring v. Arizona (2002), 536 U.S. 584 -- Arizona's scheme whereby a jury determines guilt, and a judge determines whether to impose the death penalty, violates the Sixth Amendment right to jury trial. Apprendi v. New Jersey (2000), 530 U.S. 466, applied. Walton v. Arizona (1990), 497 U.S. 639, overruled.
 
Schriro v. Summerlin (2004), 124 S.Ct. 2519 -- Ring is procedural, not substantive, and does not apply retroactively.
 
Blakely v. Washington (2004), 124 S.Ct. 2531 -- Washington sentencing scheme permitting an increased sentence based on fact finding by the court, not the jury, violates the Sixth Amendment right to trial by jury. For a conflicting Ohio case involving sentencing of repeat violent offenders see State v. Smith, Cuyahoga App. No. 344957, 2004-Ohio-3479.
 
United States v. Booker, (2005), 125 S.Ct. 738 -- The federal sentencing guidelines are subject to the jury trial requirements of the Sixth Amendment. A majority of justices make the guidelines advisory only by severing provisions making them mandatory and governing appellate review.
 
State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856 -- Syllabus: "(1) Because R.C. 2929.14(B) and (C) and 2929.19(B)(2) require judicial factfinding before imposition of a sentence greater than the maximum term authorized by a jury verdict or admission of the defendant, they are unconstitutional. (Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2532, 159 L.Ed.2d 403, followed.) (2) R.C. 2929.14(B) and (C) are capable of being severed. After the severance, judicial factfinding is not required before a prison term can be imposed within the basic prison ranges of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant. (United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, followed.) (3) Because R.C. 2929.14(E)(4) and 2929.41(A) require judicial finding of facts not proven to a jury beyond a reasonable doubt or admitted by the defendant before imposition of consecutive sentences, they are unconstitutional. (Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2532, 159 L.Ed.2d 403, followed.) (4) R.C. 2929.14(E)(4) and 2929.41(A) are capable of being severed. After the severance, judicial factfinding is not required before imposition of consecutive prison terms. (United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, followed.) (5) Because the specifications contained in R.C. 2929.14(D)(2)(b) and (D)(3)(b) require judicial factfinding before repeat violent offender and major drug offender penalty enhancements are imposed, they are unconstitutional. (Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2532, 159 L.Ed.2d 403, followed.) (6) R.C. 2929.14(D)(2)(b) and (D)(3)(b) are capable of being severed. After the severance, judicial factfinding is not required before imposition of additional penalties for repeat violent offenders and major drug offender specifications. (United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, followed.) (7)Trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.
 
State v. D.H., 169 Ohio App. 3d 798, 2006-Ohio-6953, ¶59-68 -- Regarding Booker/Foster/6th Amendment claims and blended sentences for juveniles, there is no right to jury trial on such findings because there is not general right to jury trial in juvenile court. Case is pending before the Ohio Supreme Court.
 
Shepard v. United States (2005), 125 S.Ct. 1254 -- In a federal prosecution the issue arose whether the court could look beyond statutory elements, charging documents and jury instructions to determine whether an earlier conviction was for "generic burglary." The court agreed with the trial judge that police reports and complaint applications were beyond the scope of review. Four justices also saw an Apprendi violation.
 
State ex rel. Mason v. Griffin, 104 Ohio St. 3d 279, 2004-Ohio-6384 -- Writ of prohibition issued to prevent common pleas court judge empaneling a jury to determine facts related to imposition of an additional term as a major drug offender. The Ohio Constitution does not confer jurisdiction on the courts of common pleas. The legislature has not authorized the use of a jury in determining sentencing issues. If the judge sees a Blakely problem, the remedy is to hold portions of the sentencing statutes unconstitutional and sentence under valid portions. Court expresses not opinion on the applicability of Blakely to the sentencing of major drug offenders.
 
State v. Pflanz (1999), 135 Ohio App. 3d 338 -- Defendant was found guilty of assault following a bench trial and appealed. Court's own review of the record finds a jury trial was demanded but never waived. Court reverses as plain error, though omission had not been assigned as error.
 
State v. Washington (2001), 142 Ohio App. 3d 268 -- Prosecutor's request for closure during testimony of confidential informant was granted, though the defendant's mother was the focus and there was no showing of an overriding interest likely to be prejudiced if the public was not excluded. Because the violation of the constitutional right to a public trial is structural, harmless error analysis does not apply.
 
Gates Mills v. Welsh (2001), 146 Ohio App. 3d 368 -- No error in amending complaint from an M-1 under the city code to a minor misdemeanor under the Revised Code, even though it served to deny the defendant a jury trial. Court adopts the fiction that the original complaint was defective in that the penalty was excessive under the circumstances. One of four dogs made it through an invisible fence, scaring neighbor.
 
United States v. Nachtigal (1993), 507 U.S. 1 -- Since the right to jury trial under the federal Constitution does not apply to petty offenses, defendant facing six months and a $5000 fine for drunk driving in Yosemite was properly denied trial by jury. See Blanton v. North Las Vegas (1989), 489 U.S. 538.
 
Lewis v. United States (1996), 518 U.S. 322 -- The Sixth Amendment does not guarantee the right to jury trial to a defendant facing prosecution for multiple petty offenses in a single proceeding, notwithstanding the possibility of consecutive sentences aggregating in excess of six months.
 
State v. Coyle (1984), 14 Ohio App. 3d 185 -- Though a minor misdemeanor had been set for jury trial along with a more serious offense, once the more serious charge was dropped, any right to jury trial on the minor misdemeanor was extinguished.
 
State v. Dostal (1971), 28 Ohio St. 2d 158 -- There is a right to jury trial in contempt proceedings when the penalty actually imposed is in excess of six months. See Baldwin v. New York (1970), 399 U.S. 66.

Assertion of the Right to Jury Trial

State v. Slack (1991), 68 Ohio App. 3d 388 -- A jury demand is valid if signed by counsel. There is no requirement that the defendant personally sign the demand.
 
Dayton v. Drake (1990), 69 Ohio App. 3d 180 -- In a petty offense case a jury demand must actually be filed. Defendant, represented by counsel, could not rely upon an erroneous, and later corrected, notice that his case had been set for a jury trial.
 
Talmadge v. DeGraft-Biney (1988), 39 Ohio St. 3d 300, -- Syllabus: "The time limits of Criminal Rule 23(A) regarding the filing of a jury demand are to be computed with respect to the last scheduled trial date. Where a jury demand is not timely filed with respect to the originally scheduled trial date, a continuance of the trial will renew the time within which to file a jury demand. (State v. Stauffer [1976], 48 Ohio St. 2d 54...overruled.)" Also see Columbus v. Berkhouse (April 28, 1988), Franklin Co. App. No. 87AP-1103, unreported (1988 Opinions 1528), affirmed 39 Ohio St. 3d 306; State v. Burton (1988), 39 Ohio App. 3d 151; State v. Slack (1991), 68 Ohio App. 3d 388.
 
State v. Jells (1990), 53 Ohio St. 3d 22 -- Paragraph one of the syllabus: "There is no requirement for a trial court to interrogate a defendant in order to determine whether he or she is fully apprised of the right to a jury trial. (Crim. R. 23[A] and R.C. 2945.05, construed and applied.)" Also see State v. Bays (1999), 87 Ohio St. 3d 15, 18-20.}
 
State v. Garris (1998), 128 Ohio App. 3d 126 -- At initial appearance judge advised one person as to rights to appointed counsel and jury trial, telling others in the courtroom to listen carefully. Defendant was never asked if he waived counsel or wanted a jury trial. Reversed. Furthermore, since defendant was charged with repeat OMVI, a "serious offense" carrying a one-year sentence, no jury demand was required.
 
State v. Fish (1995), 104 Ohio App. 3d 236 -- Syllabus by the Court: "Once the defendant has properly demanded a jury trial in a petty offense case, the trial court cannot make a finding of guilt after accepting a no-contest plea without a written jury waiver, signed by the defendant and made part of the record."
 
Garfield Heights v. Perkins (1994), 95 Ohio App. 3d 602 -- A jury demand is timely if filed within ten days of the last scheduled trial date. Since Ohio affords petty offense defendant the right to jury trial, lower court's reliance on Blanton v. N. Las Vegas, Nevada (1989), 489 U.S. 538 (no such right under U.S. Constitution) was mistaken.
 
State v. Scott (1997), 123 Ohio App. 3d 331 -- Initial oral demand for jury trial was ignored. Trial date was three days after notice the date was mailed, thus was within three days of its receipt by the defendant. Defendant was entitled to demand jury trial on trial date.

Waiver

State v. Burnside, 186 Ohio App. 3d 733, 2010-Ohio-1235 – A jury waiver colloquy took place in chambers and was transcribed. The form was signed and filed. In the courtroom the judge said there had been a waiver and defense counsel stated, “Defense is ready.” Waiver was ineffective as it was not made in open court. Open court means in the courtroom with the judge on the bench and with proceedings open to the public.
 
State v. Strickland, 183 Ohio App. 3d 602, 2009-Ohio-3906 – The record need not establish that the form waiving the right to jury trial be signed in open court. The judge read the form and asked the defendant if that was what he wanted to do. Dissent notes that the signature was not affirmed during the colloquy with the judge, and verification is required.
 
State v. Lomax, 114 Ohio St. 3d 350, 2007-Ohio-4277 -- Syllabus: "(1) A waiver of the right to trial by jury must not only be made in writing, signed by the defendant, and filed as a part of the record, but must also be made in open court. (R.C. 2945.05, applied) (2) To satisfy the "in open court" requirement in R.C. 2945.05, there must be some evidence in the record that the defendant while in the courtroom and in the presence of counsel, if any, acknowledged the jury waiver to the trial court." Perfunctory reference to waiver results in reversal.
 
State v. Reese, 106 Ohio St. 3d 65, 2005-Ohio-3806 -- The requirement of strict compliance with R.C. 2945.05 is satisfied by establishing the defendant had an opportunity to consult with counsel before waiving his right to jury trial. Actual consultation need not have occurred. Defendant discharged counsel and wanted to represent himself in a bench trial.
 
State v. Fitzpatrick, 102 Ohio St. 3d 321, 2004-Ohio-3167, ¶44-47 -- To make a valid waiver, the defendant does not need to have a full technical understanding of what the right to jury trial includes, such as the number of jurors and the nature of the selection process.
 
State v. Lomax, 166 Ohio App. 3d 555, 2006-Ohio-1373 -- Mere mention on the record that there has been a jury waiver is not sufficient to satisfy the requirement of R.C. 2945.05 that waiver be made in open court. There must be a colloquy establishing that the waiver is voluntary, intelligent and voluntary.
 
State v. Carley (2000), 139 Ohio App. 3d 841 -- Plea before a three-judge panel in a death penalty case was defective in written waived of right to jury trial was not entered though death specs. remained a part of the indictment.
 
State v. Pless (1996), 74 Ohio St. 3d 333 -- Syllabus: "(1) In a criminal case where the defendant elects to waive the right to trial by jury, R.C. 2945.05 mandates that the waiver must be in writing, signed by the defendant, filed in the criminal action and made part of the record thereof. Absent strict compliance with the requirements of R.C. 2945.05, a trial court lacks jurisdiction to try the defendant without a jury. (State v. Tate [1979], 59 Ohio St. 2d 50...and State ex rel. Jackson v. Dallman [1994], 70 Ohio St. 3d 261...construed and applied. (2) The failure to comply with R.C. 2945.05 may be remedied only in a direct appeal from a criminal conviction. (State v. Tate [1979], 59 Ohio St. 2d 50...and State ex rel. Jackson v. Dallman [1994], 70 Ohio St. 3d 261...and State ex rel. Larkins v. Baker [1995], 73 Ohio St. 3d 658...harmonized." Also see State v. Ward (1996), 114 Ohio App. 3d 72 where Pless was followed. Though a signed waiver was in the appellate record, it had not been file stamped.
 
State v. Nagel (1999), 84 Ohio St. 3d 280 -- Syllabus: "The requirements of R.C. 2945.05 for waiving a jury trial in 'criminal cases' do not apply to requests made by a defendant under former R.C. 2941.142 or R.C. 2941.143 to have the trial judge, in a case tried by a jury, determine the prior-conviction specifications." In the court's view "criminal cases" encompasses the "underlying charge" but not the specifications.
 
State v. Filaggi (1999), 86 Ohio St. 3d 230, 237-238 -- Court finds waiver of jury in a death penalty case was not tainted by the defendant being administered 50,000 volts from a stun belt and Valium administered afterwards. Court claims the actual voltage is not in the record, and furthermore, there was no error in failing to advise the defendant of the adverse impact bench trials have on appellate review.
 
State ex rel. Larkins v. Baker (1995), 73 Ohio St. 3d 658 -- Failure to strictly comply with R.C. 2945.05, by placing a properly executed jury waiver in the file but not having it file stamped and formally made a part of the record, is not a jurisdictional defect cognizable in habeas corpus, and did not affect the court's authority to proceed with a bench trial. See dissent.
 
State ex rel. Jackson v. Dallman (1994), 70 Ohio St. 3d 261 -- When a properly executed waiver of the right to trial by jury does not appear in the file, a court is without jurisdiction to conduct a bench trial. Writ of habeas corpus granted. Affidavit by the prosecutor that the defendant signed a waiver is of no consequence. Also see State ex rel. Jackson v. McFaul (1995), 73 Ohio St. 3d 185.
 
State v. Van Sickle (1993), 90 Ohio App. 3d 301 -- Woman shot her husband and burned the body a few days later. Court finds murder and abuse of a corpse charges were prejudicially joined for trial, in part because the defendant was denied her statutory right to have one offense tried to a jury and the other to the court.
 
State v. Walker (1993), 90 Ohio App. 3d 352 -- Valid waiver of right to jury trial requires signed statement and colloquy between the bench and the defendant sufficient to establish waiver is knowing and voluntary. It is not required that the waiver be actually signed in open court.
 
State v. Johnson (1992), 81 Ohio App. 3d 482 -- Conviction reversed for lack of proper waiver of right to jury trial, even though lack of written waiver was mentioned during trial and a waiver was filed along with the judgment entry after the defendant had been found guilty.
 
Marysville v. Foreman (1992), 78 Ohio App. 3d 118 -- Assertion by defendant that he had not intended to waive jury trial came too late, as with the swearing of witnesses, the trial had in effect begun.
 
Chardon v. Moyer (1986), 33 Ohio App. 3d 154 -- Withdrawal of no contest plea also operates as withdrawal of waiver of right to jury trial.
 
State v. McGee (1998), 128 Ohio App. 3d 541 -- Reversal based on failure to weigh proper culpable mental state entitled defendant to a new trial. Prior jury waiver is nullified.

Selection of the Venire

Berghius v. Smith (2010), 130 S.Ct. 1382 – Applying ADEPA analysis , Michigan county’s scheme far selecting the pool of potential petit jurors was not an unreasonable interpretation of clearly established federal law.
 
State v. Fulton (1991), 57 Ohio St. 3d 120 -- Paragraph two of the syllabus: "In order to establish a violation of the fair representative cross-section of the community requirement for a petit jury under the Sixth and Fourteenth Amendments to the United States Constitution, a defendant must prove: (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the representation is due to systematic exclusion of the group in the jury-selection process. (Duren v. Missouri [1979], 439 U.S. 357, 364, applied and followed.)"
 
State v. Puente (1982), 69 Ohio St. 2d 137 -- Disqualification of people from jury service based on their profession is contrary to law, though not necessarily a basis for reversal. For cases on the defendant's constitutional right to have the jury fairly reflect a cross section of the community see Duren v. Missouri (1979), 439 U.S. 357; Taylor v. Louisiana (1975), 419 U.S. 522; State v. Johnson (1972), 31 Ohio St 3d 106; Hernandez v. Texas (1954), 347 U.S. 475; Quadra v. Superior Court (N.D. Cal. 1974), 378 F. Supp. 605; Cobbs v. Robinson (2nd Cir. 1975), 528 F. 2d 1331; Smith v. Yeager (3rd Cir. 1972), 465 F. 2d 272.
 
State v. Davie (1997), 80 Ohio St. 3d 311, 316 -- "Utilization of voter rolls alone to choose prospective jurors is constitutional."
 
State v. Lane (1997), 118 Ohio App. 3d 485 -- Jury commissioner drew names of prospective petit jurors at random from the jury wheel, then listed them alphabetically. No error, though not the preferred procedure.
 
State v. McAllister (1985), 18 Ohio St. 3d 239 -- Special venire not required when the death penalty is not at issue.

Voir Dire

State v. Irwin, 184 Ohio App. 3d 764, 2009-Ohio-5271, ¶18-36 – During voir dire defense counsel tended to make speeches and posed questions which confused the jury, leading to intervention from the bench. Eventually the judge imposed a 90-second per juror time limit. Held not to be a denial of due process, in view of previous difficulties. The time limit applied only to the last four jurors and the prosecutor was held to the same limit. Conviction reversed based on trial counsel’s cumulative ineffectiveness. Counsel was disbarred while the appeal was pending. 2009-Ohio-1389.
 
State v. Atalla, Summit App. No. 21747, 2004-Ohio-3414 – In voir dire the prosecutor implied the defendant was of the same religion, culture, and general mindset as those who carried out the September 11, 2001 terrorist attacks. Defense counsel was ineffective for failing to object, then carrying on along the same lines.
 
State v. Jackson, 107 Ohio St. 3d 53, 2005-Ohio-5981, ¶61 -- "We hold that in a death-penalty case involving the murder of a young child the defendant is entitled, upon request, to have the prospective jurors informed of that fact and to ask questions that seek to reveal bias. The trial court retains its discretion as to the form and number of questions on the subject, including whether to question the prospective jurors individually or collectively." Remedy is remand for a new sentencing hearing on one of two death counts.
 
State v. Murphy 91 Ohio St. 3d 516, 524-525, 2001-Ohio-112 -- Court excused one potential juror who had an upcoming vacation and another who had had a recent negative experience with the criminal justice system without first allowing voir dire. Personal excuses are a matter between the judge and jurors. Error, if any, was harmless as it did not lead to the seating of a biased or unqualified juror.
 
State v. Sanders 92 Ohio St. 3d 245, 248-249, 2001-Ohio-189 -- (1) Court will not presume jurors were tainted by hearing an excused juror say the defendant reminded them of a public figure he disliked. (2) The judge excused for cause a juror who said she couldn't do without a cigarette for any length of time. "Unlike the erroneous denial of a challenge for cause, an erroneous excusal cannot cause the seating of a biased juror and does not taint the jury's impartiality."
 
State v. McMillin, Union App. No. 14-03-25, 2003-Ohio-6989 -- It was error to allow a detective to testify to other sexual misconduct by the defendant he had investigated. The court also erred by not permitting questioning of a juror who indicated she may have known one of the prior victims.
 
State v. Atalla, 157 Ohio App. 3d 698, 2004-Ohio-3414 -- Defense counsel failed to object to questions suggesting that if jurors could not be impartial to the perpetrators of the 9-11 attacks they could not be impartial to the defendant, then asked his own questions following that theme. Conviction reversed based on ineffective assistance of counsel.
 
State v. Anderson (1972), 30 Ohio St. 2d 66, at page 72 -- "Whatever may be the practice in other jurisdictions, it is a rule of long standing in Ohio that counsel for the respective litigants be given a reasonable opportunity to personally examine prospective jurors." See R.C. 2945.27; State v. Proctor (1977), 51 Ohio App. 2d 151, 154-156.
 
State v. Jones (1982), 2 Ohio App. 3d 345 -- Counsel must assert the right to participate in voir dire.
 
State v. Swanson (1984), 16 Ohio App. 3d 375, 476 N.E. 2d 667, 674 -- Unreasonable and excessive limitation of counsel's voir dire may trench upon the litigant's ability to challenge prospective jurors intelligently, by depriving him of the information necessary to an informed action in the exercise of challenges.
 
Rosales-Lopez v. United States (1981), 451 U.S. 182 -- While not constitutionally required, within the federal system court must inquire into racial or ethnic prejudice when victim and defendant are members of different racial or ethnic groups.
 
State v. Jones (1984), 20 Ohio App. 3d 331 -- Racial, ethnic and religious bias are proper subjects of voir dire inquiry within the context of Criminal Rule 24(B)(9).
 
State v. Mapes (1985), 19 Ohio St. 3d 108 -- Sequestered (individual) voir dire in a capital case is a matter of discretion within the province of the judge.
 
Press-Enterprise Co. v. Superior Court of California (1984), 464 U.S. 501 -- Guarantee of open public proceedings in criminal trials extends to jury selection. Court must make findings lefting closing any portion of proceedings and must consider less restrictive measures. Also see Press-Enterprise Co. v. Superior Court (1986), 478 U.S. 1.
 
State v. Armistead (1993), 85 Ohio App. 3d 247, 250 -- Trial court did not abuse its discretion by preventing reference to second count which had been dismissed before trial where the record did not adequately indicate purpose for such reference.
 
State v. Tolliver (1986), 33 Ohio App. 3d 110 -- Mention that state may not call the defendant as a witness during voir dire not necessarily a comment on the defendant's failure to testify.
 
State v. Neal (January 23, 1996), Franklin Co. App. No. 95APA05-542, unreported (1996 Opinions 177, 203) -- Mention in voir dire that defendant might or might not testify not found to be a Griffin violation.

Challenges for Cause

State v. Speer, 180 Ohio App. 3d 230, 2008-Ohio-6947 – Trial court abused its discretion in refusing to excuse a hearing impaired juror for cause. Juror could read lips, but did not know sign language. Peremptories were exhausted and the juror was seated. Defendant was convicted of aggravated vehicular homicide and involuntary manslaughter. The defendant‘s speech patterns, inflection, pauses and other audio clues during a 911 call were critical to the jury‘s assessment. Juror was "otherwise unsuitable" for service pursuant to Crim. R. 24(c)(14) and R.C. 2945.25(O). Affirmed: State v. Speer, 124 Ohio St. 3d 564, 2010-Ohio-649 – The defendant’s right to a fair trial outweighs the public’s interest in accommodating a juror with a disability to serve on a jury. Also see State v. Speer, 190 Ohio App. 389, 2010-Ohio-5648 – Double jeopardy bars reinstatement of related aggravated murder and murder counts on which the jury found the defendant not guilty.
 
Hall v. Banc One Management Corp., 114 Ohio St. 3d 484, 2007-Ohio-4640 -- Judge refused to excuse for cause a juror whose sons worked for the defendant, as is required by R.C. 2313.42(F) which applies in both civil and criminal trials. Syllabus: "The principal challenges to prospective jurors incorporated into R.C. 2313.42(A) through (I), which are to be tried to the court, establish a conclusive presumption of disqualification if found valid. The court must dismiss the prospective juror and may not rehabilitate or exercise discretion to seat the prospective juror upon the prospective juror's pledge of fairness."
 
State v. Group, 98 Ohio St. 3d 248, 2002-Ohio-7247, ¶61 -- Where the defense exhausts its peremptory challenges before the full jury is seated, the erroneous denial of a challenge for cause may be prejudicial. Also see State v. Cornwell (1999), 86 Ohio St. 3d 560, 564; Hartnett v. State (1985), 42 Ohio St. 568.
 
State v. Tenace, 109 Ohio St. 3d 255, 2006-Ohio-2417 -- Excusal for cause of the sister of defense counsel was within the court's discretion.
 
State v. Sanders, 92 Ohio St. 3d 245, 249 -- "(A)n erroneous excusal for cause, on grounds other than the venireman's views on capital punishment, is not cognizable error, since a party has no right to have any particular person sit on the jury. Unlike the erroneous denial of a challenge for cause, an erroneous excusal cannot cause the seating of a biased juror and therefore does not taint the jury's impartiality."
 
Witherspoon v. Illinois (1968), 391 U.S. 510 -- Death penalty will not be upheld when those expressing a general attitude against the death penalty, or religious or conscientious scruples in that regard, have been automatically excused for cause. Also see State v. Roberts (1976), 48 Ohio St. 2d 221, 358 N.E. 2d 530.
 
Akron v. Wendell (1990), 70 Ohio App. 3d 35 -- In an anti-abortion picketing case, the court properly excused for cause prospective jurors who indicated their opposition to abortion would keep them from being fair and impartial. Compare State v. Gleason (1989), 65 Ohio App. 3d 206 where in an OMVI case, jurors who expressed the opinion that it was wrong to drive after drinking were not excused, except for one juror who said he would be unable to set this opinion aside.
 
Adams v. Texas (1980), 448 U.S. 38 -- Violation of due process to automatically exclude jurors who reveal conscientious scruples against the death penalty. Issue is whether putative jurors could and would follow the court's instructions.
 
Wainwright v. Witt (1985), 469 U.S. 412 -- Prospective juror may be excused for cause if views on capital punishment would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.
 
Lockhart v. McCree (1986), 476 U.S. 162 -- Jurors may be excused for cause if their opposition to the death penalty would impair or prevent the performance of their duties. Death qualification of a jury does not violate a defendant's Sixth Amendment right to a jury venire representing a fair cross section of the community. Also see State v. Esparaza (1988), 39 Ohio St. 3d 8, 13-14.
 
State, ex rel. Miller, v. Gillie (1986), 24 Ohio App. 3d 121 -- Advisory opinion to the effect that jurors opposed to the death penalty may not sit through the guilt phase, then be replaced by alternates at the penalty phase.
 
State v. Midwest Pride IV, Inc. (1998), 131 Ohio App. 3d 1, 20 -- "...(W)e hold that a trial court may, in the exercise of its discretion, sua sponte dismiss a juror when it determines that a juror possesses either enmity or bias toward a party or determines that for some other reason a juror is not impartial or is otherwise unsuitable for service." Potential juror in pandering obscenity prosecution of a store had previously sat on a jury which acquitted clerks charged with the same offense.
 
State v. Sheppard (1998), 84 Ohio St. 3d 230, 235 -- "Whether a prospective juror knew the victim of an offense or had previously seen the accused is not, per se, a basis for dismissal for cause.
 
State v. Duerr (1982), 8 Ohio App. 3d 404 -- Juror's awareness that codefendant has been convicted is not by itself basis to excuse juror for cause.
 
United States v. Martinez-Salazar (2000), 528 U.S. 304, 120 S.Ct. 774 -- In the context of a federal criminal trial, a defendant need not use a peremptory challenge to cure judicial error in refusing a challenge for cause, but when he has chosen to do so, he has not been denied any right guaranteed by the constitution or the federal rules.

Peremptory Challenges - Discriminatory Purpose

Rivera v. Illinois (2009), 129 S.Ct. 1446 – Defense was refused peremptory challenge of a woman juror who went on the become foreman. Peremptory should have been allowed, but judge erroneously believed it was a Batson violation. There is no freestanding constitutional right to peremptory challenges. Due process does not require automatic reversal in such circumstances as not every violation of state law is a denial of due process. Though the court misapplied Batson, it did so in good faith. Jurors seated are deemed qualified and unbiased. No weight given to the fact the foreman knew she had been challenged by the defense.
 
Snyder v. Louisiana (2008), 128 S.Ct. 1203 – Even though Batson review is highly deferential to the determination by the trial judge, the Court finds lack of discriminatory purpose ruling by the trial court to be clearly erroneous. The prosecutor offered two explanations for excusing a black juror. The first, nervousness, did not appear to be the reason accepted by the judge. The second, hardship if called upon to serve, was expressed by numerous other jurors, and did not appear a significant problem in view of the anticipated brevity of the trial.
 
Thaler v. Haynes (2010), 130 S.Ct. 1171 – At trial, one judge presided during voir dire and another heard peremptory challenges. In the context of ADEPA, no prior decision of the Supreme Court clearly establishes the rule that a judge ruling on a demeanor-based Batson challenge must have personally observed and recalls the conduct on which the prosecutor’s explanation is based. In habeas proceedings the appellate court believed there was such a rule and awarded a new trial. Remanded for further consideration. Opinion suggests the court would not adopt such a rule.
 
Felkner v. Jackson (2011), 131 S.Ct. 1305 – Under AEDPA federal courts must defer to state court decisions that are not based on an unreasonable determination of the facts in light of the evidence presented. Trial court’s reasons for rejecting Batson challenges were good enough. Cert. granted and reversed.
 
State v. Were, 118 Ohio St. 3d 448, 2008-Ohio-2762 -- At ¶59: A Batson claim is moot when the subjects are alternate jurors who were never seated. At ¶65: Uncertainty about how a prospective juror perceives the death penalty is a race-neutral reason for exercising a peremptory challenge.
 
Miller-El v. Cockerell (2003), 123 S.Ct. 1029 -- In the context of a federal habeas action, district court improperly denied certificate of appealability in the face of a substantial showing of discriminatory purpose. While disapproval of the practices in question may lead to a favorable outcome for the defendant upon remand, the immediate issue is standards governing issuance of certificates of appealability.
 
Miller-El v. Dretke (2005), 125 S.Ct. 2317 -- Prosecutors used peremptory challenges to eliminate 91% of eligible black members of the venire. Side by side comparison of some panelists demonstrates strikes were pretextual. So does the use of different language in examining black and white panel members and reliance on a jury selection manual using racial stereotypes. Compare Rice v. Collins (2006), 126 S.Ct. 969.
 
Johnson v. California (2005), 125 S.Ct. 2410 -- At the first stage of Batson analysis the party objecting must establish a prima facie case of discriminatory purpose. California's imposition of a "strong likelihood" or more likely than not burden of proof at this stage is in error. Prosecutor excused three black prospective jurors which was sufficient to create an inference of discriminatory purpose.
 
Edmonson v. Leesville Concrete Co., Inc. (1991), 500 U.S. 614 -- Batson analysis applies to discriminatory exercise of peremptory challenges by private litigants in civil cases.
 
State v. Manns, 169 Ohio App. 3d 687, 2006-Ohio-5802 -- An African-American member of the venire indicated that her daughter had been hit by an SUV. Belatedly it occurred to the prosecutor that this might be a local incident that had led to protests against him, but the court did not permit further questioning. The court overruled a Batson challenge. Reversed. It was only speculation that the accident involving the juror's child might have been the same that led to the protest. The judge is faulted for not having allowed follow up questions at sidebar to assess the reasons advanced by the prosecutor. The prosecutor gets no break for imprudently chosen to exercise his peremptory in the hearing of the full panel.
 
State v. Jordan, 167 Ohio App. 3d 157, 2006-Ohio-2759, ¶24-40 -- Based on answers during voir dire the prosecutor ran three of four prospective African-American jurors through LEADS and ultimately peremptorily challenged two who had proven dishonest about their prior record. No Batson violation found.
 
State v. Arnold, Wood App. No. WD-03-021, 2003-Ohio-6198 -- Reversible error in not hearing a Batson challenge based on gender. Remedy is a new trial.
 
State v. Kiner, 149 Ohio App. 3d 599, 2002-Ohio-5578 -- Error to require the defense to give a discriminatory reason for the prosecutor's challenge. Prima facie case established by prosecutor's challenge of sole black juror after only establishing that she lived in the county and worked in market research.
 
State v. Walker (2000), 139 Ohio App. 3d 52 -- At the second stage of a Batson challenge, when the burden shifts to the prosecutor to provide a facially valid race-neutral justification for the exercise of a peremptory challenge, it was not sufficient to claim no pattern of discrimination had been established, that the first challenge had been of a white juror, and that three African-Americans remained on the panel.
 
State v. Richardson, Hamilton App. No. C-030453, 2005-Ohio-530 -- Prospective juror worked for Cinergy and had pending a claim of racial discrimination against the company. The prosecutor offered this as a race-neutral explanation for her challenge. Reversed as the challenge was based on race itself.
 
Batson v. Kentucky (1986), 476 U.S. 79; Powers v. Ohio (1991), 499 U.S. 400 -- Regardless of the race of the defendant, the prosecutor may not exercise his peremptory challenges in a manner calculated to exclude racial minorities.
 
Hernandez v. New York (1991), 500 U.S. 352 -- Batson creates a three-step process for claims of discriminatory exercise of peremptory challenges: (1) The defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges based on race. (2) If so, the prosecutor must articulate a race-neutral explanation for exclusion of the jurors in question. (3) The trial court must then determine whether the defendant has carried his burden of proving purposeful discrimination. Opinion discusses conduct of these inquiries and subsequent appellate review. Also see State v. Hernandez (1992), 63 Ohio St. 3d 577; State v. Gowdy (2000), 88 Ohio St. 3d 387.
 
Georgia v. McCollum (1992), 505 U.S. 42 -- Batson extended to improperly motivated exercise of peremptories by the defense.
 
J.E.B. v. Alabama ex rel. T.B. (1994), 511 U.S. 127 -- The Equal Protection Clause of the Fourteenth Amendment prohibits discrimination by representatives of the state in the jury selection process through the exercise of gender-based peremptory challenges. Case involved removal of all male jurors in a paternity action by a state-employed attorney.
 
Holland v. Illinois (1990), 493 U.S. 474 -- While the jury venire must reflect a fair cross section of the jury, this requirement does not extend to the actual composition of the petit jury.
 
Hicks v. Westinghouse Materials Co. (1997), 78 Ohio St. 3d 95 -- Batson analysis applied in a civil trial. Also see Watkins v. Cleveland Clinic Foundation (1998), 130 Ohio App. 3d 262.
 
State v. Tuck (1992), 80 Ohio App. 3d 721 -- Prima facie case of racially discriminatory exercise of peremptory challenge present when the defendant was African-American and prosecutor excused the sole African-American prospective juror. Defense counsel objected. Prosecutor had taken the position the excuse of a single juror did not establish a "pattern" of discrimination and did not offer, nor did the record suggest, a racially neutral explanation. See the appendix to State v. Robertson (1993), 90 Ohio App. 3d 715, 731-735 for a transcript of the trial court's hearing upon remand.
 
Purkett v. Elam (1995), 514 U.S. 765 -- Prosecutor explained he excused two black jurors because he didn't like their goatees or long hair. Opinion addresses the distinction between steps two and three of Batson inquiry. Though the explanation may have been silly or unconvincing, it satisfied the prosecutor's burden at step two. It was then up to the court, at step three to determine whether this explanation was merely a pretext for purposeful discrimination.
 
State v. White (1999), 85 Ohio St. 3d 433, 436 -- A pattern of discriminatory peremptory challenges is not a prerequisite for either a prima facie case in step one of Batson analysis, or actual discrimination in step three.
 
State v. Stephens (1998), 126 Ohio App. 3d 540, 547 -- "...(T)he fact that the state did not exclude all members of a particular racial group does not prevent a defendant from establishing a prima facie case of discrimination." See dissent for why reasons offered in support of the peremptory challenge (unemployment and residence in a high crime area) were insufficient.
 
State v. Brock (1996), 110 Ohio App. 3d 656, 666-674 -- Prosecutor's challenge of sole black juror survives all three phases of Batson analysis, but use of all seven peremptories in a capital case to excuse women does not satisfy the third (persuasiveness) phase of review. Since prosecutor was given the chance to explain his challenges, the remedy is a new trial.
 
State v. Robertson (1993), 90 Ohio App. 3d 715 -- Batson objection must be made before the venire is excused. It is ineffective assistance of counsel not to make the objection in a timely manner. If the appellate court is unable to discern whether the reason proffered is the real reason why a juror was excused, the remedy is to remand to the trial court for a further hearing, as the trial's judge may recall the incident and be in the best position to pass on the legitimacy of the explanation offered.
 
State v. Belcher (1993), 89 Ohio App. 3d 24 -- Exercise of three peremptories to remove all three African-American jurors established a prima facie case of a Batson violation. Prosecutor's explanations were inadequate as comparable Caucasian jurors were not excused. Failure to enter a Batson objection in a timely manner constituted ineffective assistance of counsel.
 
State v. Bryant (1995), 104 Ohio App. 3d 512 -- Prima facie case of Batson violation established by prosecutor's failure to question juror and sparse information elicited during inquiry from the bench. Prosecutor's explanation was inadequate, primarily focusing on the fact another African American remained on the panel.
 
State v. Holloway (1998), 129 Ohio App. 3d 790 -- Court's efforts to avoid an all-white jury lead to reversal. Proposal to scramble questionnaires and redraw was not carried out, but appears would have been held erroneous. Trial court appeared to have accepted a defense explanation, since the defense was permitted to exercise its sixth peremptory, but remedy of then allowing the state a further peremptory challenge required reversal, without the need to show actual prejudice.
 
State v. Powers (1993), 92 Ohio App. 3d 400 -- (1) At the hearing on remand to see if prosecutor could provide adequate, race-neutral reasons for excusing black jurors, no abuse of discretion found in not allowing defense counsel to examine prosecutor under oath. (2) Defense called expert whose testimony was heard but "not admitted" because the court concluded it was not helpful. Court finds no prejudice.
 
State v. Burns (1996), 113 Ohio App. 3d 598, 601-602 -- Court did not abuse its discretion dismissing for cause a prospective juror because of a prearranged business trip. Crim. R. 24(B) permits dismissal of those "otherwise unsuitable for any other cause to serve as a juror."
 
State v. Vinson (1990), 70 Ohio App. 3d 391, 396-397 -- Prosecutor advanced adequate rationale for exclusion of the only black prospective juror where the juror gave P.O. box instead of actual address requested by the questionnaire, failed to disclose a prior conviction, wore dark glasses and maintained a "stone demeanor" throughout voir dire.
 
State v. Hairston (1990), 67 Ohio App. 3d 341 -- Hesitation in responding to questions and perceived giddiness or silliness was a racially neutral explanation for excusing juror.

Peremptory Challenges - Other Issues

State v. Berry (1971), 25 Ohio St. 2d 255 -- When a party passes on an opportunity to exercise a peremptory challenge, it does not give up the right to exercise any remaining peremptory challenges. See Criminal Rule 24(D).
 
State v. Ruppert (1984), 14 Ohio App. 3d 74 -- Criminal Rule 24, providing for six peremptory challenges per side in a capital case controls over R.C. 2945.21(A)(2) which provides for twelve.
 
State v. Williams (1997), 79 Ohio St. 3d 1 -- Majority defers to trial judge's assessment that nine prospective jurors were not biased in favor of the death penalty. Dissent finds responses on balance meant defendant was not tried by an impartial jury. Dissent also finds court was required to inquire further into alleged misconduct.

Jury Views

State v. Were, 118 Ohio St. 3d 448, 2008-Ohio-2762, ¶87-101 – Defendant wanted to attend jury view but agreed not to when the judge said one would not be conducted if he went along. This does not amount to plain error. The defendant‘s right to attend is statutory, not constitutional. Reason he gave for going along to the site of the Lucasville riots was to "share a thought" with his attorneys about the conditions at the time. Nor does the court find error in the judge accompanying the jury on the bus to Lucasville from Cincinnati.
 
State v. Didion, 173 Ohio App. 3d 130, 2007-Ohio-4494 – Court did not abuse its discretion in allowing a daytime jury view. Car slammed into house at night causing fire and death. Visibility was an issue. A jury view is not evidence. Measures had been taken to restore road signs as they were at the time of the incident, except for reflectivity.
 
State v. Drummond, 111 Ohio St. 3d 14, 2006-Ohio-5084, ¶64 -- "R.C. 2945.16 does not prohibit jury views after opening statements have been presented." Nor was it error for jurors to view the scene in small groups due to space limitations.
 
State v. Cassano, 96 Ohio St. 3d 94, 2002-Ohio-3751, ¶67-70 -- While the trial court erred in refusing to allow the defendant to attend the jury view, court refuses to reverse finding no due process violation.
 
State v. Stafford, 158 Ohio App. 3d 509, 2004-Ohio-3893, ¶ 51-56 -- A jury view may reach the vehicle involved in a fatal accident.
 
Calloway v. Maxwell (1965), 2 Ohio St. 2d 128 -- Determination whether the jury should be allowed to see the scene where a crime was alleged to have been committed lies within the sound discretion of the court. Also see R.C. 2945.16; State v. Montalvo (1974), 47 Ohio App. 2d 296; State v. Sprouse (1968), 13 Ohio App. 2d 170; State v. Salyer (July 8, 1976), Franklin Co. App. No. 76AP-52, unreported (1979 Opinions 1760).
 
State v. Hopfer (1996), 112 Ohio App. 3d 521, 542 -- "The trial court may permit more than one view of the crime scene. State v. Watson (1991), 61 Ohio St. 3d 1...Moreover, a view of a crime scene is not considered evidence, nor is it a crucial step in the criminal proceedings. State v. Richey (1992), 64 Ohio St. 3d 353, 367...State v. Smith (1993), 90 Ohio App. 3d 177, 180...The trial court has broad discretion in determining whether to authorize a view of the crime scene. Richey at 367...citing State v. Zuern (1987), 32 Ohio St. 3d 56, 58." Also see R.C. 2945.16.
 
State v. Lundgren (1995), 73 Ohio St. 3d 474, 490 -- Granting a jury view prior to the penalty phase of a death penalty trial lies within the sound discretion of the court.
 
State v. Smith (1993), 90 Ohio App. 3d 177 -- Failure to make proper arrangement for a jury view found not to have been ineffective assistance of counsel as view was not particularly appropriate under the circumstances.

Alternate Jurors

State v. Mock, 187 Ohio App. 3d 599, 2010-Ohio-2747 – Experimental system used to seat a jury was poorly executed and resulted in members of the venire being moved past the person in the position of first alternate during jury selection. But rules and statutes were not violated as the jury had not yet been sworn. Assignment of error overruled.
 
State v. Downour, 182 Ohio App. 3d 12, 2009-Ohio-1812 – Over objection an alternate juror was allowed to sit in during deliberations. Error, but harmless as there "is not one scintilla of evidence in the record" that the alternate actively participated in deliberations. Opinion is vague as to what instructions were given as to role of alternate. Reversed: State v. Downour, 126 Ohio St. 3d 508, 2010-Ohio-4503 – Syllabus: “The state has the burden to show that the presence of an alternate juror in the courtroom during jury deliberations has not prejudiced a defendant. (State v. Gross, 97 Ohio St. 3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, clarified.)”
 
State v. Clinkscale, 122 Ohio St. 3d 351, 2009-Ohio-2746 – Syllabus: "(1) The proceedings in which a deliberating juror is dismissed in a capital case, and an alternate is seated, must be recorded. (2) Under former Crim. R. 24(G)(2), a juror cannot be replaced by an alternate juror during deliberations in a capital case." Case remained a capital case even though the defendant had avoided the death penalty at a prior trial. Lack of a record made the circumstances of the excusal unclear. For the majority, the timing of objection and how a record was made are not critical. Current 24(G)(2) permits substitution but former version of the rule forced a mistrial absent agreement of the parties. Reverses State v. Clinkscale, 177 Ohio App. 3d 294, 2008-Ohio-1677, where, in an opinion disturbing for a lack of concern for orderly retrial of a capital case, the majority accepted the improper ex parte substitution of an alternate during guilt phase deliberations because counsel failed to object after the substitution had been announced. See dissent which would have sustained all six assignments of error.
 
State v. Gross, 97 Ohio St. 3d 121, 2002-Ohio-5524, ¶122-140 -- Misconduct by alternate jurors present during penalty phase deliberations leads to reversal. Once the defendant objects to the presence of alternates during deliberations, the state has the burden of demonstrating an absence of prejudice. Indicia of misconduct creates a presumption of prejudice. Reversal is required unless the court cures the error or the prosecutor shows it to be harmless. A routine poll of the jury is not sufficient. The remedy is a resentencing, not retrial. See concurring and dissenting opinions.
 
State v. Group, 98 Ohio St. 3d 248, 2002-Ohio-7247, ¶68-74 -- Court finds no error in refusing to seat alternate at the penalty phase of a capital trial after she expressed reservations about the verdict at the guilt phase.
 
State v. Murphy 91 Ohio St. 3d 516, 531-534, 2001-Ohio-112 -- Failure to object to presence of alternates at both the guilt and penalty phases of a capital trial waives all but plain error. Also see State v. Braden, 98 Ohio St. 3d 354, 2003-Ohio-1325, ¶43-52; State v. Jackson (2001), 92 Ohio St. 3d 436, 438-440, 2001-Ohio-1266; United States v. Olano (1993), 507 U.S. 725.
 
State v. Hutton (1990), 53 Ohio St. 3d 36, 44-46 -- No error found where in a death penalty trial one of the original jurors was excused at the conclusion of the guilt phase, because of an ill child and other difficulties, and was replaced by one of the alternates before the penalty phase deliberations began.
 
State v. Shields (1984), 15 Ohio App. 3d 112 -- Judge may seat an alternate replacing juror unable to continue service because of family illness without allowing counsel an opportunity to inquire. Impliedly overruled by State v. Hutton (1990), 53 Ohio St. 3d 36, 46.
 
State v. Locklear (1978), 61 Ohio App. 2d 231 -- An alternate juror who has been excused may not be substituted for a regular juror after the jury has retired to consider its verdict. Compare State v. Miley (1991), 77 Ohio App. 3d 786 where the court did not find it plain error to allow an alternate who had sat in on deliberations to replace a regular juror after a partial verdict had been reached.
 
Potter v. Perini (6th Cir. 1976), 4 Ohio Ops. 3d 110 -- inadvertent and temporary presence of alternate during deliberations not necessarily basis for new trial or release in habeas action. Also see State v. Blair (1986), 34 Ohio App. 3d 6.
 
State v. Girts (1997), 121 Ohio App. 3d 539, 558 -- "We...hold that when a defendant affirmatively consents to procedure which permits alternate jurors to sit in on, but not participate in, jury deliberations, that defendant waives the right to challenge the procedure under Crim. R. 24(F)."
 
State v. Bowling (February 8, 1996), Franklin Co. App. No. 95APA05-599, unreported (1996 Opinions 404) -- A trial court hearing a criminal matter may not substitute either an excused or unexcused alternate juror once deliberations have begun. Error was compounded by substitution not being done in open court and by failure to instruct jury to begin deliberating anew. Counsel's failure to object did not waive error. Compare State v. Brown (1995), 108 Ohio App. 3d 489, 494-495. (Substitution of excused alternate not plain error per se where substitution came before jury began deliberations.)
 
State v. Morrison (August 5, 1993), Franklin Co. App. No. 93AP-197, unreported (1993 Opinions 3221) -- Presence of alternate jurors during deliberations in a non-capital may be erroneous, but an objection should be entered, and for there to be reversal there must be a showing of prejudice. See United States v. Olano (1993), 507 U.S. 725.

Deliberations - Questions and Communication with Jurors

State v. Wade, Franklin App. No. 03AP-774, 2004-Ohio-3974, ¶16-28 – Judge, or her bailiff, responded to a series of written questions from the jury, without the defendant or counsel being present. Record must affirmatively demonstrate absence. Here this was established by an indication counsel was contacted by phone as to one question, and the transcript failed to recite the presence of the defendant and counsel at the time questions were fielded, thus demonstrating absence by silence. Reversed, as some of the responses were substantive and confusing.
 
State v. Sales, Franklin App. No. 02AP-175, 2002-Ohio-6563 -- Reversal based on court's response to jury questions in the absence of the defendant or counsel. Absence adequately demonstrated by transcript not referring to presence of the defendant or counsel and lack of discussion or proffer reflecting input from the parties. Court's response to questions was either incomplete or erroneous.
 
State v. Campbell (2000), 90 Ohio St. 3d 320, 346 -- Court finds no error in court responding by note to a jury question, without the defendant's presence in the courtroom during discussion of the legal issue, at which defense counsel was present. Said that oral response to questions is a critical phase, but response by note is not.
 
State v. Abrams (1974), 39 Ohio St. 2d 53 -- Error for court to communicate with jury out of the presence of the defendant, though may not lead to reversal if concluded to be harmless beyond a reasonable doubt. Also see State v. Grisafulli (1939), 135 Ohio St. 87; Jones v. State (1875), 26 Ohio St. 208; Kirk v. State (1846), 14 Ohio 511; Rushen v. Spain (1984), 464 U.S. 114; Columbus v. Kennedy (July 12, 1983), Franklin Co. App. Nos. 83AP-39, 40, unreported (1983 Opinions 1988, 1990).
 
State v. Motley (1985), 21 Ohio App. 3d 240 -- Judge may not send the court reporter into the jury room to reread testimony in response to a question, out of the presence of the defendant, counsel, and the judge himself.
 
State v. King (1983), 10 Ohio App. 3d 93 -- Bailiff's improper communication with jury presumed prejudicial.
 
State v. Czajka (1995), 101 Ohio App. 3d 564, 578-579 -- Though bailiff communicated with jurors out of the presence of the court and the defendant concerning procedural matters relating to filling out verdict forms, reversal was not required in view of the jury already having reached a unanimous decision, curative instructions and other matters. Appears to be a dubious decision.
 
State v. Black (1993), 85 Ohio App. 3d 771, 779 -- It is error not to read into the record questions from the jury during deliberations.
 
State v. Berry (1971), 25 Ohio St. 2d 255 -- It its discretion, the court may have reread all or part of a witness' testimony after the jury has retired to deliberate. Also see R.C. 2315.06; Annotation, 50 A.L.R. 2d 176; Itskin v. State (1935), 51 Ohio App. 211; State v. Jessop (1952), 71 Ohio Law Abs. 429.
 
State v. Frost (1984), 14 Ohio App. 3d 320 -- Court may not recall and interrogate witness in response to a jury question during deliberations. Page 322: "Any question by the jury during its deliberations, as to matters of evidence, may only be answered by repeating in some fashion, the evidence or testimony offered during the trial itself."

Deliberations - Other Issues

State v. Brown, 100 Ohio St. 3d 51, 2003-Ohio-5059, ¶-28-46 -- No reversal in a capital trial where, (1) the court gave a Howard charge instead of the instruction requested by the defense, (2) in the poll of jurors following an initial death recommendation a juror indicated she had "compromised" with the other jurors, and (3) the Howard charge was not repeated and further deliberations led to recommendation of death.
 
State v. Elmore, 111 Ohio St. 3d 515, 2006-Ohio-6207, ¶87-95 -- No plain error in not allowing breaks during deliberations for the lone smoker on the panel.
 
State v. Thomas (1988), 40 Ohio St. 3d 213 -- Paragraph three of the syllabus: "A jury must unanimously agree that the defendant is guilty of a particular criminal offense before returning a verdict of guilty on that offense. If a jury is unable to agree unanimously that a defendant is guilty of a particular offense, it may proceed to consider a lesser included offense upon which evidence has been presented. The jury is not required to determine unanimously that a defendant is not guilty of the crime charged before it may consider a lesser included offense. (State v. Muscatello [1977], 57 Ohio App. 2d 231, paragraph three of the syllabus, adopted.)"
 
State v. Graven (1977), 52 Ohio St. 2d 112 -- Trial court has discretion to allow the jury to have copy of the indictment during deliberations.
 
State v. Holmes (1987), 36 Ohio App. 3d 44 -- Whether to allow the jury to use a typed transcript of a tape recording as a "visual aid" when the tape is played back is a matter of judicial discretion.
 
State v. Jenkins (1984), 15 Ohio St. 3d 164 -- Jury need not be sequestered during the interval between guilt and penalty phases of capital trial.

Verdict

State v. Williams, 99 Ohio St. 3d 493, 2003-Ohio-4396, ¶38 -- "...We hold that once a poll of the jurors has been completed and all have assented to the verdict, a juror may not thereafter rescind of modify his or her vote." In a capital trial, one juror changed her mind before the verdict was journalized.
 
State v. Draughon, Franklin App. No. 2003-Ohio-2727 -- In a rape trial where the verdict form contained a finding on the age of the victim, the court misread the jury's finding during a poll of the jury. Recognizing the mistake, the jury was recalled and asked if they had signed the form. Held that this did not deny the defendant his right to a poll of the jury. Sargent v. State (1842), 11 Ohio 472 distinguished on the basis that the verdict form in that case did not address the second count of the indictment.
 
State v. Davis, Clark App. No, 2002-CA-43, 2003-Ohio-4839, ¶ 35-62 -- Jurors signed a guilty verdict form that was phrased in a manner inconsistent with the instructions, the issues in the case, and the form read during the charge. It was error to reconvene the jury to further deliberate, then sign a corrected form. A trial court cannot allow a jury to alter its verdict once it has been discharged and has separated. The error is structural and prejudice is presumed.
 
State v. Stoner, Miami App. No. 2003 CA 6, 2003-Ohio-5745 -- When filling in victim's names on verdict forms judge mistakenly put down the name of the victim named in a count dismissed pursuant to Crim. R. 29. Defendant is entitled to a new trial.
 
State v. Howard, Franklin App. No. 06AP-1273, 2007-Ohio-5659 -- Jury was instructed on aggravated menacing and on menacing as a lesser included offense. Verdict forms were signed finding the defendant guilty of the greater charge but not guilty of the lesser. Agg. menacing conviction reversed as this amounts to inconsistent verdicts to a single count. Court could have directed the jury to deliberate further, but questions directed to the foreperson could not remedy the situation.
 
State v. Green (1990), 67 Ohio App. 3d 72, 76-77 -- When juror upon being polled indicated did not concur in verdict, the court was not required to reinstruct the jury before sending them back to deliberate further.
 
State v. Brumback (1996), 109 Ohio App. 3d 65, 72-74 -- No abuse of discretion in accepting verdict after polled juror initially indicated it was not her true verdict, then affirmed that it was and declined offers of time for further deliberation or to explain inconsistent responses.
 
Cleveland v. Walters (1994), 98 Ohio App. 3d 165 -- Jury filled in guilty verdict form, though the immediate verbal reaction when the verdict was read, and a poll of the jury, indicated they unanimously meant to find the defendant not guilty. The mistrial declared by the judge was not a matter of manifest necessity. Appeals court enters judgment of acquittal.
 
Tasin v. SIFCO Industries, Inc. (1990), 50 Ohio St. 3d 102 -- Paragraph two of the syllabus: "A local rule which prohibits post-trial communication between parties or their counsel and jurors, without leave of court, for the purpose of investigating the validity of the verdict, is not an unconstitutional prior restraint on freedom of speech."
 
State v. Adams (1978), 53 Ohio St. 2d 223 -- Counts of an indictment are not interdependent. Inconsistent response to different counts is acceptable, though not inconsistent response to same count. Also see 18 A.L.R. 3d 259; Browning v. State (1929), 120 Ohio St. 62.

Aliunde Rule

State v. Reiner 89 Ohio St. 3d 342, 2000-Ohio-190 -- Syllabus: "(1) The prohibitions against receiving evidence from a juror in Evid. R. 606(B) apply to alternate jurors. (2) Evidence received from an alternate juror, without other outside evidence, is insufficient aliunde evidence under Evid. R. 606(B) upon which a court may rely in order to conduct an inquiry of other jurors into the validity of a verdict." See dissents. Also see State v. Hessler 90 Ohio St. 3d 108, 123, 2000-Ohio-30 and 31.
 
State v. Herb, 167 Ohio App. 3d 333, 2006-Ohio-2412 -- Juror testified at hearing on the defendant's motion for a new trial that he was influenced to change his vote by the bailiff's comment that the defendant would probably get probation. He was also tired and missed smoking. Aliunde rule does not apply then an officer of the court is involved in any irregularity, impropriety or gross misconduct. But the court in the end relies on the bailiff's claim that he made this remark only after there had been a verdict.
 
Wicker v. Cleveland (1948), 150 Ohio St. 434 -- Syllabus: "In the absence of evidence aliunde, the verdict of a jury may not be impeached by the testimony of a juror concerning the alleged misconduct of a member thereof." Examples of evidence aliunde (from an outside source): Notebook kept by juror, now in possession of judge - State v. Kehn (1977), 50 Ohio St. 2d 11, 18-20; Testimony of juror's spouse concerning their independent investigation - Diehl v. Castle Co. (1971), 26 Ohio St. 2d 249. For further discussion of the aliunde rule see Cameron v. Alba Ski & Sport Hut (August 7, 1986), Franklin Co. App. No. 85AP-11018, unreported (1986 Opinions 2036); Tanner v. United States (1987), 483 U.S. 107; State v. Robb (2000), 88 Ohio St. 3d 59, 78-80.
 
State v. Stamper (1986), 33 Ohio App. 3d 104 -- Applying the aliunde rule, held that mistrial not required after juror called judge morning after had been excused and said she had changed her mind as to two of three defendants.
 
Highfield v. Liberty Christian Academy (1987), 34 Ohio App. 3d 311, 314 -- Only after evidence from a source other than a juror has been introduced may a juror testify. Also see Nickell v. Gonzalez (1986), 34 Ohio App. 3d 364.
 
State v. Schiebel (1990), 55 Ohio St. 3d 71 -- Paragraph two of the syllabus: "Where an attorney is told by a juror about another juror's possible misconduct, the attorney's testimony is incompetent and may not be received for the purpose of impeaching the verdict or for laying a foundation of evidence aliunde."

Jury Misconduct; Jury Tampering

Wellons v. Hall (2010), 130 S.Ct. 737 – After a capital trial the defense learned of unusual events, including ex parte contacts among the judge and jury, plans for a reunion and the presentation of lewd chocolates to the judge and bailiff. Defendant was never able to secure an evidentiary hearing. Vacated and remanded.
 
Grundy v. Dhillon, 120 Ohio St. 3d 415, 2008-Ohio-6324 – Syllabus: "(1) To obtain a new trial in a case in which a juror has not disclosed information during voir dire, the moving party must first demonstrate that a juror failed to answer honestly a material question on voir dire and that the moving party was prejudiced by the presence on the trial jury of a juror who failed to disclose material information. To demonstrate prejudice, the moving party must show that an accurate response from the juror would have provided a valid basis for a for-cause challenge…(2) In determining whether a juror failed to answer honestly a material question on voir dire and whether that nondisclosure provided a basis for a for-cause challenge, an appellate court may not substitute its judgment for the trial court‘s judgment unless it appears that the trial court‘s attitude was unreasonable, arbitrary, or unconscionable…"
 
State v. Majid, 182 Ohio App. 3d 730, 2009-Ohio-3075 – Plain error for judge not to appropriately respond to sleeping jurors in a capital murder trial.. At one point she said, "I saw it. So what. Let him sleep. You guys picked this jury, I didn‘t." Majority finds this a denial of due process. Dissent suggests the defendant didn‘t object because of a desire to keep the juror.
 
State v. Sanders 92 Ohio St. 3d 245, 252-253, 2001-Ohio-189 -- A court has considerable discretion in deciding how to handle a sleeping juror, including admonition and replacement. It is incumbent on counsel to seek a remedy during trial. Absent a showing that the juror missed a large or critical portion of the trial, court declines to reverse as plain error. Also see State v. McKnight, 107 Ohio St. 3d 101, 2005-Ohio-6046, ¶174-188.
 
State v. Herring 94 Ohio St. 3d 245, 258-259, 2002-Ohio-796 -- Juror received an unsettling phone calls from someone at a correctional facility during service in a death penalty trial. Court conducted a Remmer v. United States (1954), 347 U.S. 227, 229-230 hearing and determined that the calls did not affect the impartiality of the juror or those she with whom she discussed the calls. Affirmed. The calls were not so inflammatory as to foster an almost conclusive presumption of prejudice.
 
State v. Williams, 149 Ohio App. 3d 434, 2002-Ohio-4831 -- During sequestered penalty phase deliberations in a capital case, before leaving the hotel for the courthouse an alternate juror asked the bailiff if a prayer was permitted. Bailiff may have participated in prayer. In a postconviction action, the defense claimed this was prohibited by the Establishment Clause and represented misconduct by court personnel. Bailiff's affidavit satisfied aliunde rule. Reversed for trial court to conduct a hearing on the issue. Also see State v. Williams, 162 Ohio App. 3d 55, 2005-Ohio-3366 affirming the subsequent denial of postconviction relief.
 
State v. Hughes, Mahoning App. No. 02 CA 15, 2003-Ohio-6094 -- Juror's failure to disclose a 50-year old felony conviction does not require a new trial. Since questionnaire referred to "lawsuits," and defense counsel did not further inquire, failure was not intentional. Defendant failed to demonstrate actual bias, blocked in part by the aliunde rule.
 
In re Thomas, Hamilton App. No. C-030429, 2004-Ohio-373 -- Potential juror who was excused claiming her child had a medical appointment was later found guilty of direct criminal contempt on the basis that she had lied. Reversed. Contempt was indirect as it required proof of facts, not known to the judge, which had been relayed to him by a third party. Since the trial was not delayed, summary finding of contempt, without procedural safeguards, was improper.
 
State v. Solomon, Marion App. No. 9-03-58, 2004-Ohio-2795 -- Mistrial not required where stray juror sat through deliberations without participating.
 
State v. Hipkins (1982), 69 Ohio St. 2d 80 -- Juror misconduct, such as discussing case with a third party, is a basis for mistrial or grant of new trial only if prejudice is demonstrated by the defendant. Also see Weis v. State (1872), 22 Ohio St. 486; State v. Higgins (1942), 70 Ohio App. 383; Armleder v. Lieberman (1877), 33 Ohio St. 77; State v. Loshin (1986), 34 Ohio App. 3d 62.
 
State v. Sheppard (1998), 84 Ohio St. 3d 230, 232-233 -- It was juror misconduct for a juror to consult a psychologist friend concerning the meaning of paranoid schizophrenia, but harmless as the information conveyed could only bolster the defense. The aliunde rule did not bar admission of the psychologist's affidavit as the misconduct did not take place during deliberations.
 
State v. Spencer (1997), 118 Ohio App. 3d 871 -- Doctor was on trial for illegally prescribing Methadone. During deliberations one juror contacted twelve physicians about prescribing Methadone and told other jurors. Instead of individually questioning jurors, the entire panel was given a curative instruction. (1) There is a presumption of prejudice when juror misconduct occurs. The state did not meet its burden of showing the misconduct was not prejudicial. (2) When misconduct occurs before a verdict, the aliunde rule does not apply.
 
State v. Hopfer (1996), 112 Ohio App. 3d 521, 543 -- Review of claimed juror misconduct first requires consideration whether there was misconduct and whether the trial court was required to conduct a voir dire of the juror. Misconduct must be found to materially affect the defendant's substantial rights.
 
State v. Phillips (1995), 74 Ohio St. 3d 72, 88-89 -- "When a trial court learns of an improper outside communication with a juror, it must hold a hearing to determine whether the communication biased the juror *** (T)rial courts are granted broad discretion in dealing with the contact and determining whether to declare a mistrial or replace an affected juror."
 
State v. Daniels (1993), 92 Ohio App. 3d 473 -- Two jurors indicated they thought they had been followed at a lunch break and others later expressed concern about the defendant's access to juror questionnaires. Since upon inquiry, indication was that could remain fair and impartial, it was not an abuse of discretion to deny a mistrial motion.
 
State v. Rudge (1993), 89 Ohio App. 3d 429 -- State v. Rudge (1993), 89 Ohio App. 3d 429 -- Between the guilt and penalty phase of a capital trial an alternate juror informed the bailiff that before opening statements one juror was overheard to say "We could save a lot of time and money and just hang him now," and on the second day of trial another juror, upon seeing the defendant at a restaurant, said "He better enjoy it now, because he won't be around much longer." Mistrial was declared based on the first statement. (1) Mistrial was properly declared. (2) Held to be a final appealable order, from which the prosecutor may seek leave to appeal. (3) Aliunde rule did not apply as went to partiality and not discussions during deliberations. Also, a present, but non-deliberating, alternate is said not to be a member of the trial jury for purposes of aliunde rule.
 
State v. Hart (1988), 57 Ohio App. 3d 4, 8 -- Consumption of alcohol by jurors during a break in deliberations is misconduct. Also see State v. McKinney (1945), 77 Ohio App. 309.
 
State v. Craven (1973), 35 Ohio St. 2d 18 -- Reversal based on jurors having read inflammatory newspaper coverage of trial during deliberations. Also see State v. Doll (1970), 24 Ohio St. 2d 130; Marshall v. United States (1959), 360 U.S. 310; Sheppard v. Maxwell (1966), 385 U.S. 333.
 

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