[Cite as State v. Pippins,
2020-Ohio-503.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
No. 15AP-137
Plaintiff-Appellee, : (C.P.C. No. 14CR-1823)
No. 15AP-138
v. : (C.P.C. No. 14CR-1320)
No. 15AP-140
Keith J. Pippins, Jr., : (C.P.C. No. 14CR-2869)
Defendant-Appellant. : (REGULAR CALENDAR)
D E C I S I O N
Rendered on February 13, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee.
On brief: Yeura R. Venters, Public Defender, and Robert D.
Essex, for appellant.
APPEALS from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} Defendant-appellant, Keith J. Pippins, Jr., appeals a February 20, 2015
judgment of the Franklin County Court of Common Pleas, in which the court convicted him
of numerous drug-related offenses and sentenced him to 74 years in prison.
{¶ 2} On March 14, 2014, a Franklin County Grand Jury indicted Pippins and eight
other defendants in a 42-count indictment in case No. 14CR-1320. Pippins was indicted for
engaging in a pattern of corrupt activity, in violation of R.C. 2923.32; attempted murder, in
violation of R.C. 2903.02 and 2923.02; 2 counts of felonious assault, in violation of R.C.
2903.11; tampering with evidence, in violation of R.C. 2921.12; 17 counts of trafficking in
heroin, in violation of R.C. 2925.03; 2 counts of trafficking in cocaine, in violation of R.C.
2925.03; 3 counts of trafficking in oxycodone, in violation of R.C. 2925.03; 1 count of
trafficking in marijuana, in violation of R.C. 2925.03; 1 count of funding trafficking in
Nos. 15AP-137, 15AP-138, and 15AP-140 2
marijuana, in violation of R.C. 2925.05; 3 counts of illegal drug manufacture, in violation
of R.C. 2925.04; and 1 count of having a weapon while under disability, in violation of R.C.
2923.13. The count regarding engaging in a pattern of corrupt activity did not indicate what
offenses constituted the "pattern of corrupt activity" as defined in R.C. 2923.31(E) and (I).
{¶ 3} On April 10, 2014, in case No. 14CR-1823, a Franklin County Grand Jury
indicted Pippins and six other defendants for crimes associated with the same alleged
pattern of corrupt activity. This indictment charged Pippins with engaging in a pattern of
corrupt activity, in violation of R.C. 2923.32; trafficking in heroin, in violation of R.C.
2925.03; possession of heroin, in violation of R.C. 2925.11; and three counts of having a
weapon while under disability, in violation of R.C. 2923.13. The engaging in a pattern of
corrupt activity count again did not state what specific offenses constituted the "pattern of
corrupt activity" but did incorporate each of the offenses indicted in case No. 14CR-1315
against co-defendant Jack Morris as predicate offenses for this offense, as well as Counts 2
through 27 of this indictment.
{¶ 4} On May 30, 2014, in case No. 14CR-2869, a Franklin County Grand Jury
indicted Pippins and eight other defendants for engaging in a pattern of corrupt activity, in
violation of R.C. 2923.32. This count again did not indicate what specific offenses
constituted the "pattern of corrupt activity" but incorporated each of the offenses indicted
in case Nos. 14CR-1315 and 14CR-1825, as well as Count 2 of this indictment, as a predicate
offense for this offense.
{¶ 5} The first indictment was apparently based on evidence obtained via wiretaps
and information proffered by cooperating members of the drug dealing group. The second
indictment was based on the fruits of a search of Pippins' house at the conclusion of the
wiretap investigation. The third indictment was intended to correct perceived deficiencies
in the first two attempts to indict a pattern of corrupt activity.
{¶ 6} On July 16, 2014, State of Ohio, plaintiff-appellee, filed a motion to join case
Nos. 14CR-1320, 14CR-1823, and 14CR-2869 into a single case for trial. On December 12,
2014, Pippins filed a motion to suppress the wiretap phone calls. On December 23, 2014,
the state filed a memorandum and attached copies of the warrant applications and
materials related to the wiretaps.
Nos. 15AP-137, 15AP-138, and 15AP-140 3
{¶ 7} The trial court did not issue any written ruling on the motions, but it held a
hearing on them on December 12, 2014. At the hearing, the trial court appeared to suggest
the issue of joinder had been taken care of at a previous status conference, but the record
does not reflect any such disposition and the state suggested perhaps the issue had not been
resolved. Although Pippins' trial counsel never filed a formal severance motion, counsel
did join a renewed motion for severance at the start of trial at which time the trial court
noted the objection and stated, as it had in the December 12, 2014 hearing, that it had
already ruled on such objections. During the December 12, 2014 hearing, the parties also
discussed dismissing two of the counts for engaging in a pattern of corrupt activity and the
two counts related to marijuana, but no dismissal was ever filed. The trial court suggested
that once the dismissal took place, the indictments would essentially be consolidated and
renumbered for trial. The defense objected that it was extremely challenging to determine
which counts were going forward to trial or to match up conduct with the generic allegations
in the several indictments, noting that it had never been provided with a sufficiently
detailed bill of particulars. Defense also suggested that for appellate purposes, dismissals
and renumbering should be put on the record. The prosecution responded to the lack of
clarity by indicating that it would go through the evidence with defense counsel to explain
which matters in the indictment were supported by which evidentiary items and indicated
that it had prepared a chart of the offenses.
{¶ 8} No order consolidating the cases or joining the defendants for trial was ever
filed or read into the record. According to statements made during trial, the counts were,
in fact, renumbered. Yet, no amended or renumbered indictment was ever filed. Although
an e-mail chain was filed mid-trial that sets forth the wiretap files that correspond to each
count in the Morris indictment in case No. 14CR-1315, no detailed bill of particulars was
filed and no chart showing the relationship between the renumbered counts and the
original indictments was ever filed. Although there was a listing of renumbered offenses
within the jury instructions, a copy of the jury instructions was not filed, and the trial court
did not read that portion of the jury instructions into the record when it orally instructed
the jury. While the trial court noted on the first day of trial that the pattern of corrupt
activity counts in the first two indictments were being dismissed, no entry ever issued to
that effect. Although the verdict forms ultimately did not include any marijuana offenses,
Nos. 15AP-137, 15AP-138, and 15AP-140 4
no dismissal entry was ever filed as to those counts. Regardless, Pippins and two other
defendants were tried together before a jury in a four-week trial in early 2015.
{¶ 9} At trial, two detectives testified to the results of the wiretapping operation
and played several hours of recorded telephone calls for the jury in which Pippins discussed
drug dealing with his co-defendant, Percy R. Burney, Sr., and with other members of the
alleged enterprise. In every telephone recording presented by the state, Pippins was one of
the speakers. A great number of the calls presented were explicitly about transactions for
drugs in which Pippins was either the buyer or seller. There were also two calls in which
Pippins requested Burney procure a drug addict to test the potency of Pippins' drugs. There
were a series of calls regarding an incident where a customer of Pippins robbed him, and
Pippins sought to find the robber and contacted sources, including Burney, to obtain guns.
Then, following a shooting at which the robber was the target, additional calls were
presented in which Pippins discussed the shooting and sought to dispose of a gun and
deflect blame. Some recorded jail calls were also played for the jury, including one where
Pippins discussed retaliation against a former co-defendant who was planning to testify
against him.
{¶ 10} A detective who ran surveillance for the investigation testified that generally
the movements of the persons overheard talking on the telephone calls could be and were
observed by surveilling them. However, he admitted he never actually saw anyone with
drugs, and another prosecution witness admitted they had not surveilled the shooting and
were unable to stop it from occurring.
{¶ 11} Another detective and an FBI agent testified regarding the information
contained in various phones that were seized when police searched houses associated with
the targets of the wiretap investigation on March 7, 2014. Two detectives authenticated
photographs taken during the execution of search warrants and presented evidence
recovered at the scene of the shooting, which was alleged to have been an attempt by
Pippins to target a man who robbed him. The state introduced testimony and stipulations
regarding the drugs and weapons found during the searches of Burney's and Pippins'
residences. The parties also stipulated Pippins' prior record was such that he was forbidden
from possessing a firearm.
Nos. 15AP-137, 15AP-138, and 15AP-140 5
{¶ 12} Former co-defendants, Morris, Tyler Griffin, and Larry Stevenson, who
agreed to cooperate with the prosecution in exchange for favorable plea agreements, also
testified. Morris confirmed he and Pippins were partners during the period of the wiretap
investigation, they pooled their money in order to buy drugs, and split the drug dealing
profits evenly between them. He explained they had a Mexican connection from whom they
daily purchased heroin, up to 36 ounces at a time, and on four occasions they purchased
two kilos at once. Morris detailed how he and Pippins carried out the shooting together—
Pippins as the trigger man and Morris as the driver. At some juncture, however, Morris
had started to become less involved in the drug trade, and Pippins took over more
responsibility. Morris testified the day they were arrested Pippins had obtained drugs from
the Mexican connection. Morris added he feared retaliation from his former co-defendants
as a result of his decision to testify and stated Pippins had explicitly threatened to burn
down his house if he testified.
{¶ 13} Griffin testified he and Pippins were involved together in the drug trade but
claimed he had no partners and was a solo individual using people as needed. However, he
admitted he gave Pippins prescription pills on credit to sell, and he sold Pippins marijuana.
He recounted that Pippins had confessed to him the details of the shooting.
{¶ 14} Stevenson testified Pippins was engaged in drug dealing. He explained
Pippins would give him heroin on credit to sell, and he would then pay Pippins for the
heroin. This happened, he testified, on six or eight occasions.
{¶ 15} On January 29, 2015, after several weeks of trial, the parties gave closing
arguments. By the time of closing, some jurors were starting to have scheduling problems
due to the lengthy nature of the proceedings. Juror No. 7 was therefore excused, and
Alternate No. 2 took her place. The jury did not reach a verdict before Alternate No. 2 also
had an unavoidable scheduling conflict. Thus, after one day of deliberation, Alternate No.
2 was replaced in her role as Juror No. 7 by another alternate, and deliberation began anew
on Monday, February 2, 2015.
{¶ 16} On Friday, February 6, 2015, the bailiff brought to the court's attention that
one juror felt the others were attempting to intimidate her. In light of this, the trial court
suggested to the parties and their counsel that it should perhaps give an instruction and a
modified charge pursuant to State v. Howard, 42 Ohio St.3d 18, 26 (1989). Thereafter, if
Nos. 15AP-137, 15AP-138, and 15AP-140 6
the jury still could not reach a verdict as to all counts by the end of that day, the court would
call them in and take verdicts on whatever counts they had reached a verdict and declare a
mistrial as to any others.
{¶ 17} Having considered the matter, shortly after 11:00 a.m., the trial court gave
the jury a modified charge pursuant to Howard. After more than three additional hours of
deliberation, at 3:00 p.m., the jury asked by what time they would have to complete
deliberations that day in order to depart by 6:00 p.m. Rather than directly respond, the
court and the parties agreed to submit a question to the jury whether it believed that
continuing deliberations would be helpful regarding those things they had yet to consider.
When the jury responded with an underlined, "No," the trial court decided to call the jury
in and take whatever verdicts they had and declare a mistrial as to any remaining counts.
(Emphasis sic.) (Tr. at 4317.)
{¶ 18} The jury found Pippins guilty of Count 1 (engaging in a pattern of corrupt
activity); Counts 26 and 27 (felonious assault); Counts 2, 4, 5, 7, 10, 12, 16, 18, 19, 20, 21,
23, 24, 29, 30, 32, and 34 (heroin trafficking); Counts 3 and 13 (cocaine trafficking); Counts
14, 15, and 22 (oxycodone trafficking); Counts 9, 17, and 31 (manufacture of drugs); Count
33 (heroin possession); Counts 6, 35, 36, and 37 (weapon under disability); and Count 28
(tampering with evidence). The jury found Pippins not guilty of Count 11 (heroin
trafficking). The jury failed to reach a verdict on Count 25 (attempted murder).
{¶ 19} Counsel requested a poll of the jurors. During the juror poll, Juror No. 7
requested to speak to the judge. A lengthy discussion ensued in which Juror No. 7 indicated
she had been pressured by her fellow jurors on a number of counts, had doubts as to others,
and was confused about how she had voted on still others. She also expressed that she was
confused and that "all the charges [were] running together." (Tr. at 4375.)
{¶ 20} In an entry six days following the verdict on February 10, 2015, the trial court
declared a mistrial on Counts 10, 16, 17, 20, 21, 26, 27, 29, 30, 32, and 33 as to Pippins. It
reduced Count 2 from a second-degree to a fifth-degree felony based on Juror No. 7's
uncertainty as to the quantity of drugs. The trial court's entry also stated that Juror No. 7
had been pressured as to Count 34 and asserted in a footnote that a mistrial would be
declared as to Count 19. However, it did not declare a mistrial as to either Count 19 or 34
in the conclusion of its entry.
Nos. 15AP-137, 15AP-138, and 15AP-140 7
{¶ 21} On February 13, 2015, the trial court held a sentencing hearing. The trial
court sentenced Pippins to 11 years consecutive on Count 1 (engaging in a pattern of corrupt
activity), 1 year concurrent on Count 2 (heroin trafficking); 11 years concurrent on Count 3
(cocaine trafficking); 6 years consecutive on Count 4 (heroin trafficking); 6 years
consecutive on Count 5 (heroin trafficking); 1 year concurrent on Count 6 (weapon under
disability); 6 years consecutive on Count 7 (heroin trafficking); 6 years concurrent on Count
9 (manufacturing drugs); 6 years consecutive on Count 12 (heroin trafficking); 18 months
concurrent on Count 13 (heroin trafficking); 4 years consecutive on Count 14 (oxycodone
trafficking); 4 years consecutive on Count 15 (oxycodone trafficking); 11 years consecutive
on Count 18 (heroin trafficking); 6 years consecutive on Count 19 (heroin trafficking); 6
years concurrent on Count 22 (oxycodone trafficking); 4 years consecutive on Count 23 plus
3 consecutive years for a firearm specification (heroin trafficking); 4 years concurrent on
Count 24 (heroin trafficking); 3 years concurrent on Count 31 (manufacturing drugs); 6
years consecutive on Count 34 (heroin trafficking); 1 year concurrent on each of Counts 35
through 37 (weapon under disability); and 1 year concurrent on Count 28 (tampering with
evidence) with 1 consecutive year for a related firearm specification. In total, the court
imposed a sentence of 74 years.
{¶ 22} On February 20, 2015, the prosecution requested, and the trial court granted,
dismissal of Counts 10, 16, 17, 20, 21, 26, 27, 29, 30, and 32. Though a mistrial was also
declared as to Count 33 in the trial court's February 10, 2015 entry, the dismissal entry on
February 20, 2015 did not include that count.
{¶ 23} The same day, February 20, 2015, the trial court issued a judgment entry. In
the entry, the court noted a mistrial had been declared as to Counts 10, 16, 17, 20, 21, 25,
26, 27, 29, 30, 32, and 33. The trial court journalized the same 74-year sentence it imposed
orally during sentencing.
{¶ 24} Pippins appeals the judgment, asserting the following four assignments of
error:
[I.] Defendant-Appellant was denied due process of law as
guaranteed by The Fifth and Fourteenth Amendments to the
United States Constitution and Article I, Section 16, of the Ohio
Constitution due to the involvement of the presiding judge in
the investigation of the crimes for which he was charged.
Nos. 15AP-137, 15AP-138, and 15AP-140 8
[II.] Defendant-Appellant's conviction for the offense of
engaging in a pattern of corrupt activity in violation of R.C.
2923.32 was not supported by sufficient evidence.
[III.] Appellant was denied the effective assistance of counsel
guaranteed by the Sixth and Fourteenth Amendments to the
United States Constitution and Article I, Section 10 of the Ohio
Constitution when trial counsel failed to file a motion for
severance.
[IV.] The trial court committed plain error by not declaring a
mistrial on all counts of the indictment.
{¶ 25} The plain error standard is implicated in some of Pippins’ assignments of
error. According to Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court." To show plain
error, an appellant must show that: (1) there was error; (2) the error was plain, i.e., obvious;
and (3) the error affected substantial rights. State v. Tench, 156 Ohio St.3d 85, 2018-Ohio-
5205, ¶ 217, citing State v. Barnes,
94 Ohio St.3d 21, 27 (2002). In State v. Rogers,
143
Ohio St.3d 385,
2015-Ohio-2459, the Supreme Court of Ohio explained:
[E]ven if the error is obvious, it must have affected substantial
rights, and "[w]e have interpreted this aspect of the rule to
mean that the trial court's error must have affected the
outcome of the trial." [Barnes at 27.] The accused is therefore
required to demonstrate a reasonable probability that the error
resulted in prejudice—the same deferential standard for
reviewing ineffective assistance of counsel claims. United
States v. Dominguez Benitez, 542 U.S. 74, 81-83,
124 S.Ct.
2333,
159 L.Ed.2d 157 (2004) (construing Fed.R.Crim.P. 52(b),
the federal analog to Crim.R. 52(B), and also noting that the
burden of proving entitlement to relief for plain error "should
not be too easy").
Id. at ¶ 22. Thus, an accused seeking to show that an obvious error affected his or her
substantial rights and, thereby the outcome, must demonstrate "a reasonable probability
that the error resulted in prejudice," such that there is a "probability of a different result
[that] is sufficient to undermine confidence in the outcome of the proceeding." (Emphasis
sic and internal quotation marks omitted.) State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-
1903, ¶ 130.
Nos. 15AP-137, 15AP-138, and 15AP-140 9
{¶ 26} For ease of discussion, we will address Pippins' fourth assignment of error
first. In his fourth assignment of error, Pippins argues the trial court plainly erred when it
failed to order a mistrial on all counts based on uncertainty following the poll of Juror No.
7. "Crim.R. 31(D) grants the trial judge or any party the absolute right to have the jury
polled after it has returned its verdicts." State v. Sneed, 63 Ohio St.3d 3, 14 (1992), fn. 5.
"If upon the poll there is not unanimous concurrence, the jury may be directed to retire for
further deliberation or may be discharged." Crim.R. 31(D). Thus, in the event of non-unanimity, a trial court has discretion (and therefore we review for abuse of discretion)
whether to direct the jury "to retire for further deliberation" or to "discharge[]" the jury.
Id.
A court does not have discretion, however, to accept a non-unanimous verdict in a criminal
case.
{¶ 27} Crim.R. 31(A) explicitly states that a "verdict shall be unanimous." The Ohio
Constitution requires that "[t]he right of trial by jury shall be inviolate, except that, in civil
cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not
less than three-fourths of the jury." Ohio Constitution, Article I, Section 5. However, the
Supreme Court has confirmed that Article I, Section 5 of the Ohio Constitution requires
juror unanimity in criminal cases.
[O]ur opinion is, that the essential and distinguishing features
of the trial by jury as known at the common law, and generally,
if not universally, adopted in this country, were intended to be
preserved, and its benefits secured to the accused in all
criminal cases, by the constitutional provisions referred to.
[Ohio Constitution, Article 1, Section 5.] That it is beyond the
power of the General Assembly to impair the right, or
materially change its character; that the number of jurors
cannot be diminished, or a verdict authorized short of a
unanimous concurrence of all the jurors.
Work v. State, 2 Ohio St. 296, 306 (1853) (overruled as to the holding regarding the
absolute immutability of the number of jurors in misdemeanor cases in State ex rel.
Columbus v. Boyland,
58 Ohio St.2d 490 (1979), syllabus); see also State v. Robbins,
176
Ohio St. 362, 364 (1964); McHugh v. State,
42 Ohio St. 154, 156 (1884); see also
Richardson v. United States,
526 U.S. 813, 820 (1999) (remarking that "this Court has
indicated that the [federal] Constitution itself limits a State's power to define crimes in ways
that would permit juries to convict while disagreeing about means, at least where that
Nos. 15AP-137, 15AP-138, and 15AP-140 10
definition risks serious unfairness and lacks support in history or tradition"); but cf. State
v. Gardner,
118 Ohio St.3d 420,
2008-Ohio-2787, ¶ 35 (plurality decision remarking that
Ohio only imposes a unanimity requirement by rule).
{¶ 28} Because unanimity is required explicitly by rule and implicitly by the
Constitution, when there is " '[i]n any case … the appearance of any uncertainty or
contingency in a jury's verdict, it is the duty of the trial judge to resolve that doubt, for "there
is no verdict as long as there is any uncertainty or contingency to the finality of the jury's
determination." ' " Sneed at 14, quoting United States v. Morris,
612 F.2d 483, 489 (10th
Cir.1979), quoting Cook v. United States,
379 F.2d 966, 970 (5th Cir.1967). Thus, " 'a jury
has not reached a valid verdict until deliberations are over, the result is announced in open
court, and no dissent by a juror is registered.' "
Sneed at 14, fn. 5, quoting United States v.
Taylor,
507 F.2d 166, 168 (5th Cir.1975). And once a jury has been discharged, the verdict
cannot be altered. Sargent v. State, 11 OHIO 472, 473 (1842).
{¶ 29} Thus, although a trial court has discretion about whether to discharge a jury
or require its members to deliberate further, pursuant to Crim.R. 31(D), the Ohio
Constitution and Crim.R. 31(A) prohibit a conviction based on a verdict that is not
unanimous, at least as to outcome. A trial court has no discretion to accept a non-unanimous verdict in a criminal case because "no court has discretion to violate the law."
Frash v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-932, 2016-Ohio-360, ¶ 7; Irvin
v. Eichenberger, 10th Dist. No. 16AP-657,
2017-Ohio-5601, ¶ 40. Generally, as discussed
above, an accused seeking to show that an obvious error affected his or her substantial
rights, and thereby the outcome, must demonstrate a "reasonable probability that the error
resulted in prejudice," such that there is a "probability of a different result [that] is sufficient
to undermine confidence in the outcome of the proceeding." (Emphasis sic and internal
quotation marks omitted.)
Myers at ¶ 130; Rogers at ¶ 22. But no conviction may stand
on a non-unanimous verdict because a defendant has a "substantial right to a unanimous
jury verdict." State v. Rawson, 10th Dist. No. 14AP-1023,
2016-Ohio-1403, ¶ 24. Thus, an
unanimity error is a "defect[] affecting substantial rights." Crim.R. 52(B). Or, in other
words, a unanimity error always affects the outcome; hence, such errors are plain. Id. at
¶ 23-24; United States v. Ullah,
976 F.2d 509, 514 (9th Cir.1992).
Nos. 15AP-137, 15AP-138, and 15AP-140 11
{¶ 30} In this case, the jury initially announced verdicts finding Pippins guilty of
Count 1 (engaging in a pattern of corrupt activity); Counts 2, 4, 5, 7, 10, 12, 16, 18, 19, 20,
21, 23, 24, 29, 30, 32, and 34 (heroin trafficking); Counts 3 and 13 (cocaine trafficking);
Counts 14, 15, and 22 (oxycodone trafficking); Counts 9, 17, and 31 (manufacture of drugs);
Count 33 (heroin possession); Counts 26 and 27 (felonious assault); Counts 6, 35, 36, and
37 (weapon under disability); and Count 28 (tampering with evidence). Thereafter, the
defendants, including Pippins, requested that the jury be polled.
{¶ 31} As explained above, during the juror poll, Juror No. 7 indicated she had been
pressured by her fellow jurors on a number of counts, had doubts as to others, and was
confused about how she had voted on still others. Juror No. 7 kept detailed notes regarding
her deliberations on all the counts, although those notes are not part of the record on
appeal. Pippins did not object to the manner in which the trial court polled Juror No. 7.
{¶ 32} Initially, it is important to note that, in his fourth assignment of error, Pippins
does not raise a specific unanimity challenge to the guilty verdict on any of the counts.
Instead, Pippins maintains that because Juror No. 7 expressed misgivings about her guilty
verdict on certain counts, the trial court committed plain error by failing to declare a
mistrial on all counts.
{¶ 33} Outside the hearing of the jury, the trial court reviewed Juror No. 7's notes
with regard to each count. With regard to Count 1, the following discussion took place:
THE COURT: Okay. You're Juror Number 7.
Okay. Now, with regard to the verdicts involving Keith Pippins,
are these your verdicts?
JUROR 7: Yes.
THE COURT: Freely, voluntarily, and independently found
and entered by you?
JUROR 7: Can I ask you a question, or can I say anything?
THE COURT: Yes. I'll tell you what. Why don't you write it
down? Can you do that?
Let me just give you a piece of paper and a pen.
THE COURT: Thank you.
Nos. 15AP-137, 15AP-138, and 15AP-140 12
Okay. Okay. What I'm going to do then is I'm going to go
through these individually with you. Okay?
All right. And let's see here. Okay. Count 1, I'm going to go --
these are all with regard to Mr. Pippins. Okay. What?
Tell you what. Do you want to approach?
JUROR 7: Yes.
THE COURT: Okay. Come on and do that.
Noise, again, please. Then we will need counsel up here as well.
[PIPPINS' COUNSEL]: Do you want the attorneys?
THE COURT: Yes. Noise, please.
---
Thereupon, the following discussion was held at the bench with
the court and counsel outside the hearing of the jury:
THE COURT: Okay. Now, let me just get your note here.
Okay. It says here some of the charges I wasn't quite clear
about. Hence the reason for my further note.
Okay. So that's why I wanted to go over each one of these with
you. And, basically, I'll hand them to you. Okay? And then --
JUROR 7: You know that packet that you gave us? If I could
look at that.
THE COURT: Yes. Go get it.
JUROR 7: Thank you.
THE COURT: I think that was the one that said do we have to
-- is it an all or nothing type of thing.
Come on up here, please. Thank you.
Now, how do you want to go through this? You got them all?
JUROR 7: Yeah.
THE COURT: Very good.
JUROR 7: I have detailed notes.
Nos. 15AP-137, 15AP-138, and 15AP-140 13
THE COURT: Let's go back to Count 1 then, and that starts
right here. Showing us your notes, and we'll start out with
Count 2, Keith Pippins, these are your notes, right?
JUROR 7: Yes.
THE COURT: What you've got here is Count 2, Count 2, guilty.
And checkmark, that means you agree with that?
JUROR 7: I had questions. I had some questions.
THE COURT: With Count 2 you had a question, you say?
JUROR 7: Um-hmm.
(Tr. at 4359-61.)
{¶ 34} From the above excerpt, it is clear the trial court did not indicate verbally on
the record the content of Juror No. 7's notes regarding Count 1. Instead, the court
mentioned Count 1 briefly and then moved on to discuss Count 2.
{¶ 35} However, following the polling of Juror No. 7, the trial court stated, "I don't
think—there was nothing with regard to Count 1." (Tr. at 4388.) Defense counsel did not
object. After listing all the counts in the indictment on which Juror No. 7 "was uncertain
about a verdict, felt pressured into or anything else," the trial court stated, "Okay. And other
than that, the court finds, as Juror Number 7 so stated, the remainder of the counts were
freely, voluntarily, she was in accord with." (Tr. at 4378, 4389.)
{¶ 36} "A jury poll's purpose is to ' "give each juror an opportunity, before the verdict
is recorded, to declare in open court his assent to the verdict which the foreman has
returned and thus to enable the court and the parties to ascertain with certainty that a
unanimous verdict has in fact been reached and that no juror has been coerced or induced
to agree to a verdict to which he has not fully assented." ' " State v. Monroe, 10th Dist. No.
01AP-275 (Sept. 25, 2001), quoting State v. Hessler, 90 Ohio St.3d 108, 121 (2000), cert.
denied,
532 U.S. 998 (2001), quoting Miranda v. United States,
255 F.2d 9, 17 (1st
Cir.1958). Here, when the trial court asked Juror No. 7 to write down any questions she
may have, Juror No. 7 handed the trial judge a note reportedly stating: "some of the charges
I wasn't quite clear about." (Tr. at 4360.) During the subsequent colloquy, Juror No. 7
never expressed any disagreement with her guilty verdict as to Count 1. Our impression of
Juror No. 7 from reading the entire colloquy is that Juror No. 7 was eager to express her
Nos. 15AP-137, 15AP-138, and 15AP-140 14
opinions regarding her verdict as to each count in the indictment on which she felt
pressured or uncertain. Thus, in our view, the trial transcript supports the trial court's
finding that Juror No. 7 did not have any reservations about the guilty verdict as to Count
1.
{¶ 37} In addition, the trial court subsequently issued a February 10, 2015 entry, in
which it stated: "First, [Juror No. 7's] notes indicate that there was no problem with the
first count." (Feb. 10, 2015 Entry at 2.) The February 10, 2015 entry is an important part
of this record that the trial court may consider in ruling on Pippins' assignments of error.
In the entry, the trial judge painstakingly set out the events that occurred during his
colloquy with Juror No. 7 based on the notes he had taken during the colloquy and the
observations he made of Juror No. 7 as she discussed her verdicts on the various counts in
the indictment. At the close of that entry, the trial court stated: "Based on the foregoing,
this Court declares a mistrial as to those counts where Juror #7's statements caused a lack
of unanimity." (Feb. 10, 2015 Entry at 3.)
{¶ 38} An appellate court reviewing a trial court's decision on a motion for mistrial
generally defers to the judgment of the trial court, as it is in the best position to determine
whether the circumstances warrant a mistrial. State v. Walburg, 10th Dist. No. 10AP-1087,
2011-Ohio-4762, ¶ 51, citing State v. Glover,
35 Ohio St.3d 18, 19 (1988). "If there is doubt
whether a juror has agreed to the verdict, the court may interrogate the juror to clarify his
or her answer." Monroe, citing State v. Brumback,
109 Ohio App.3d 65, 72 (9th Dist.1996).
"The court's determination of whether further interrogation is necessary is given wide
discretion because the 'trial court was in a better position to view the demeanor and actions
of the juror.' "
Id., quoting State v. Williams,
73 Ohio St.3d 153, 167 (1995), cert. denied,
516 U.S. 1161 (1996).
{¶ 39} Here, the trial judge was in the best position to view the demeanor and
actions of Juror No. 7 with regard to Count 1 and to make a determination as to whether
she was certain regarding her verdict of guilty as to Count 1, whether it was the result of
pressure from other jurors, or whether it was the product of the normal deliberative
process. There was nothing in the record to refute the trial court's recollections and findings
in its February 10, 2015 entry with regard to Count 1 and, in fact, the trial judge's comments
after his colloquy with Juror No. 7 support the court's conclusions in the February 10, 2015
Nos. 15AP-137, 15AP-138, and 15AP-140 15
entry. For these reasons, based on the plain error standard, we find the trial court did not
err when it found Juror No. 7 was not uncertain or pressured with regard to her guilty
finding as to Count 1.
{¶ 40} As to Count 2, the juror indicated she was uncertain as to the amount of drugs
involved:
THE COURT: With Count 2 you had a question, you say?
JUROR 7: Um-hmm.
THE COURT: It was a question as to the amount involved?
JUROR 7: Yes.
THE COURT: So guilty but what was the amount; is that a fair
statement?
JUROR 7: Yes. I needed them to give me further information
for me to make a decision because we weren't in agreement.
(Tr. at 4361-62.) Thus, the trial court properly found Pippins guilty only of the lowest
degree of the offense. See also R.C. 2945.75(A)(2) (requiring that a guilty verdict state
either the degree of the offense or the elements making it a higher degree and providing
that otherwise the verdict is a finding only as to the least degree of the offense).
{¶ 41} As to Counts 10 and 11, Juror No. 7 indicated results that were different from
the verdict forms, which found Pippins guilty on Count 10 and acquitted him on Count 11:
THE COURT: Okay. Count 10?
JUROR 7: Um-hmm. I went to the audio. I got not guilty
there.
THE COURT: That's Count 11 you found not guilty?
JUROR 7: No. I was fine.
THE COURT: 11 the verdict was guilty, and that was fine?
JUROR 7: Um-hmm.
(Tr. at 4364-65.) This raises a clear inference that the guilty verdict on Count 10 was not
unanimous and, thus, the trial court did not err in declaring a mistrial on this count. We
Nos. 15AP-137, 15AP-138, and 15AP-140 16
note an acquittal is not generally appealable and no party has attempted to appeal on this
ground. See State v. Keeton, 18 Ohio St.3d 379 (1985), syllabus.
{¶ 42} As to Counts 15, 16, and 17, the following discussion took place:
THE COURT: Okay. Count 15?
JUROR 7: I was on the fence on this, but I voted guilty.
THE COURT: Well, do you believe that he was guilty? Did the
state meet its burden of proof? Are you satisfied that it's a
guilty verdict here?
Again, you reach a verdict based on your own decision, not
upon the consensus, or what have you, just to be friendly.
JUROR 7: I think that's what I did there.
THE COURT: Why you did what?
JUROR 7: I think I was pressured into that decision.
THE COURT: Count 15 or which count?
I think we had gotten to -- I think we were at 15.
No. I'm sorry. We were at 16.
JUROR 7: We was here.
THE COURT: So that's what you're not sure. Everything else
is fine but that one?
JUROR 7: Um-hmm.
THE COURT: No. That was not her verdict, at least at that
point. I'm going to highlight that one. Just going to put a little
highlight through so that I know. Her Counts 2 or 3, well we'll
come back to that. Okay.
[PIPPINS' COUNSEL]: I would like to note her language was
she felt she was pressured.
THE COURT: Yes. I understand that.
Okay? Let me continue. Thank you.
All right. Count 17. All right? There you've got question marks,
and you've got some of your own notes there.
Nos. 15AP-137, 15AP-138, and 15AP-140 17
JUROR 7: I have to say this too. I have no understanding of
drugs and the terminology, you know, the language and stuff.
I think I even mentioned that in here, and so they was talking
about cutting stuff, melting stuff, I got to cut it, I got to fix it.
Our understanding back there was not the same, and we would
go around and around.
THE COURT: With regard to 17, you're not sure?
JUROR 7: Um-hmm.
(Tr. at 4365-67.)
{¶ 43} With regard to Count 15, the above discussion does not make clear whether
Juror No. 7 felt pressured in arriving at her guilty verdict on this count. However, in the
trial court's February 10, 2015 entry, the court found that "[a]lthough the transcript is
unclear, the Court notes that in reviewing her notes and her statements, Count 15 was a
guilty verdict she agreed with, but she was not certain as to Counts 16 and 17." (Feb. 10,
2015 Entry at 2.) The footnote accompanying the trial court's finding regarding Count 15
provides as follows: "The transcript appears to indicate that the discussion was in regard to
Count 15, but at the bench, Juror #7's review of her notes at the time, including her hand
gesture to the correct count at the bench conference to the specific counts, make it clear
that it was Counts 16 and 17 she felt pressured into signing, and not Count 15." (Feb. 10,
2015 Entry at 2.) As explained above with regard to our analysis of Count 1, the
February 10, 2015 entry is an important part of the record in this case and may be
considered as such by this court on appeal. Therefore, based on the explanation provided
by the court in its February 10, 2015 entry, we find the trial court properly found that Juror
No. 7 was not pressured into finding Pippins guilty on Count 15.
{¶ 44} With regard to Counts 16 and 17, the above discussion is somewhat more clear
that Juror No. 7 felt pressured to find Pippins guilty on those counts. The trial court
confirmed in its February 10, 2015 entry that hand gestures by Juror No. 7 showed she felt
pressured into finding Pippins guilty on Counts 16 and 17. Therefore, the trial court
properly declared a mistrial on Counts 16 and 17.
{¶ 45} As to Count 19, despite the fact that the verdict form indicated "guilty," Juror
No. 7 agreed that she voted "not guilty" as to co-defendant Burney:
THE COURT: Until you have questions, everything else is fine.
Nos. 15AP-137, 15AP-138, and 15AP-140 18
Count 19, you're okay with that? That has all three defendants
in it.
JUROR 7: Um-hmm.
THE COURT: And you had a not guilty on Burney and not
guilty on Smith, I believe.
JUROR 7: Um-hmm.
(Tr. at 4367-68.) Shortly thereafter, she agreed that Pippins and Burney were guilty with
regard to transporting but ultimately indicated she was not sure of her verdict with regard
to Pippins:
THE COURT: Okay. And then with Mr. Pippins, I believe.
JUROR 7: Two charges.
THE COURT: Okay.
JUROR 7: Not guilty on gun. Guilty on transport, ship. Was
he tried with transporting and shipping too?
THE COURT: I can't answer that. Okay? Not guilty on gun
but guilty on transport with regard to Burney. Is that, in fact,
your verdict?
JUROR 7: Yes.
THE COURT: Smith, I believe, was not guilty.
JUROR 7: Not guilty.
THE COURT: That leaves Pippins. You have a note there that
I can't --
JUROR 7: Two charges. I was wanting clarification. Was he
being charged with trafficking in heroin and --
THE COURT: It's trafficking with ship and transport.
JUROR 7: Yes.
THE COURT: Is that your verdict there, or you're not sure?
JUROR 7: I don't have anything up there.
THE COURT: Okay.
Nos. 15AP-137, 15AP-138, and 15AP-140 19
JUROR 7: Because I wasn't sure what that charge actually was,
was it for the trafficking in heroin and shipping and transport.
THE COURT: You're not sure of that particular charge?
JUROR 7: Um-hmm.
THE COURT: Let me highlight that one as well. Thank you.
(Tr. at 4368-69.)
{¶ 46} Juror No. 7 indicated variously that she voted "guilty," "not guilty," and was
"not sure of that particular charge," as Pippins and Count 19. (Tr. at 4367-69.) In other
words, as to Count 19, the jury poll revealed the "appearance of [] uncertainty or
contingency in [the] jury's verdict." Sneed at 14. The trial court's entry regarding Count 19
states the trial court concluded the juror "was not sure of that particular charge." (Feb. 10,
2015 Entry at 3.) Then, in a footnote, the trial court added, "[s]ince the juror has since been
discharged, any further information would be evidence aliunde, and so the Court declares
a mistrial as to Keith Pippins on this charge, Count 19." (Emphasis sic.) (Feb. 10, 2015
Entry at 3.) But the trial court did not include Count 19 in its list of mistried counts on the
final page of the entry, did not dismiss that count in its later entry, and ultimately sentenced
Pippins to serve six consecutive years on Count 19. This was plainly erroneous.
{¶ 47} With respect to Counts 20 and 21, a similar point of confusion arose with
Pippin and, additionally, the juror indicated she had been pressured:
THE COURT: … All right. Count 20.
JUROR 7: That's the confusion because it is basically the same
thing. Sell or offer, and one was ship and transport.
And we played the audio. I thought when I heard on the
wiretap stuff that that was Jack Morris saying drop off at my
mom, not Keith Pippins.
THE COURT: So you have a question on this one as well then?
You've got guilty.
JUROR 7: Down here I got that all scratched out. I went on
and voted because I was pressured.
THE COURT: What does that mean?
Nos. 15AP-137, 15AP-138, and 15AP-140 20
JUROR 7: Well, I thought when I heard the audio it was Jack
Morris say drop it off at my mommy's, not Keith Pippins.
THE COURT: Okay. Percy Burney, you have a line with guilty
on it, and you have a line with guilty to Pippins, but you crossed
that out.
JUROR 7: I scratched that off. That's why I have guilty there.
THE COURT: With regard to Count 21, you believe that Mr.
Burney is guilty. Is that your verdict?
JUROR 7: Um-hmm.
THE COURT: With Pippins you're not sure?
JUROR 7: I was pressured into it.
[PIPPINS' COUNSEL]: She was pressured into it.
JUROR 7: I'm sorry.
THE COURT: Don't worry about that.
JUROR 7: Okay. I understand.
(Tr. at 4369-70.) The trial court properly found a mistrial on Counts 20 and 21 as a result
of the confusion and juror pressure.
{¶ 48} The jury did not complete a verdict form as to Count 25 (attempted murder)
but did complete forms finding Pippins guilty of felonious assaults in Counts 26 and 27.
However, Juror No. 7 had "real issues" about whether Pippins was guilty of the felonious
assaults as the verdict forms had indicated:
THE COURT: I know that Count 25, 26, 27, you had question
marks. I believe that one of the defendants was found not
guilty.
[PROSECUTOR]: Burney on all three.
THE COURT: Burney found not guilty on all three, the
attempted murder, the felonious assault, the other felonious
assault, so that leaves Mr. Pippins.
JUROR 7: This is where -- that's why you all got that last sheet
the way that it is.
Nos. 15AP-137, 15AP-138, and 15AP-140 21
THE COURT: This is the one that you basically had some real
issues with?
JUROR 7: Real issues.
THE COURT: We will put that -- to the extent that anyone was
found guilty on these, we will just highlight those. Fair enough?
JUROR 7: Um-hmm.
(Tr. at 4371.) The trial court properly declared a mistrial on these counts.
{¶ 49} On Count 29, the juror again indicated that she had been confused as to
whether Pippins had actually committed the crimes discussed on the recorded telephone
calls:
THE COURT: All right. 29.
JUROR 7: The Mexican guy, the drugstore guy, that was we
never could understand, although he was saying he was doing
all this, but did he actually follow through with it? Did he
actually go do that? We all was mixed up on that.
THE COURT: You're not sure on this one?
JUROR 7: Yes.
(Tr. at 4371-72.) Thus, Count 29 was properly considered the subject of a mistrial and
dismissed.
{¶ 50} As to Count 30, after indicating that she was not sure of her verdict, Juror No.
7 added that she had been pressured into it:
THE COURT: All right. Count 30, this one here.
JUROR 7: Huh-uh. That's why I got that scratched off.
THE COURT: Not sure?
JUROR 7: Huh-uh.
…
THE COURT: … Now, is that in regard to Count 30?
JUROR 7: This is heroin.
THE COURT: Okay.
Nos. 15AP-137, 15AP-138, and 15AP-140 22
JUROR 7: For him.
THE COURT: Yes. Is that your verdict, or do you have a
problem with that?
JUROR 7: I was pressured into deciding.
THE COURT: Okay. Take that one out then.
(Tr. at 4372-73.) Count 30 was properly considered the subject of a mistrial and dismissed.
{¶ 51} With respect to Count 32, Juror No. 7 indicated she needed to refresh her
recollection by listening to evidence regarding that count. The trial court indicated it would
consider whether to do that:
THE COURT: … Count 32.
JUROR 7: Are we going to go back and hear all this in court
now?
THE COURT: No. You can't deliberate in court.
JUROR 7: No, not deliberate but hear it.
THE COURT: No.
JUROR 7: Okay.
THE COURT: If that would help you refresh your recollection,
that's another matter.
JUROR 7: That's what I want to do.
THE COURT: All right. Let me think about that one.
(Tr. at 4372-73.) But the court never returned to further consider Count 32 and, thus, based
on Juror No. 7's uncertainty, that count was also properly the subject of a mistrial.
{¶ 52} On Count 33, Juror No. 7 said there had been a great deal of disagreement
and fighting and expressed that she felt pressured on that count:
THE COURT: Okay. Count 33, possession of heroin.
JUROR 7: Did I do not guilty on her?
THE COURT: [The second co-defendant], I believe, was a
guilty, and Keith Pippins was a guilty.
[PROSECUTOR]: The possession count.
Nos. 15AP-137, 15AP-138, and 15AP-140 23
THE COURT: The possession count.
[PROSECUTOR]: That's correct. It was guilty for both on
possession.
[PIPPINS' COUNSEL]: But apparently --
THE COURT: No. Don't say anything. What are you thinking?
JUROR 7: I don't know what happened here, but I would have
never voted [the second co-defendant] guilty on that.
THE COURT: This is not guilty. This is you pointing at this
one, the trafficking in heroin. She was found not guilty of that.
JUROR 7: Oh, okay, because here I put only on Pippins. You
see, I put only on Pippins.
THE COURT: Now, Count 33.
JUROR 7: Huh-uh.
THE COURT: Huh-uh what?
JUROR 7: There was a big fight about this.
THE COURT: What's your take on it? Are you okay with the
verdict of guilty or not guilty?
JUROR 7: I was so upset and crying back there.
THE COURT: Okay.
JUROR 7: I think I was pressured into it.
THE COURT: On this one?
JUROR 7: Um-hmm.
(Tr. at 4373-74.) Because the juror stated she felt she had been "pressured" into it we agree
that the trial court properly declared a mistrial on that count. We note, however, that Count
33, for reasons unclear, was not dismissed.
{¶ 53} On Count 34, the juror again expressed that she was not sure about Pippins'
guilt:
THE COURT: Okay. All right. Weapon under disability,
Count 34, trafficking in heroin.
Nos. 15AP-137, 15AP-138, and 15AP-140 24
JUROR 7: I got Pippins.
THE COURT: Pippins only. Not guilty [the second co-defendant]?
JUROR 7: Um-hmm.
THE COURT: Is that fair?
JUROR 7: Um-hmm.
THE COURT: Is that your verdict?
JUROR 7: I had them explain to me with all the charges
running together -- can I ask you a question?
THE COURT: Yes.
JUROR 7: Or you all a question.
THE COURT: Me. You can ask me a question.
JUROR 7: If the heroin is in -- I'll use me -- in my house.
THE COURT: I can't answer a factual question. Okay? I can
answer a legal question.
JUROR 7: Okay.
THE COURT: So, I mean, you put Pippins only, not guilty [on
the second co-defendant]. What does that mean?
JUROR 7: I think here when they said this, they was saying we
was only going over the evidence for him. I think that's why I
put only there, but I was thinking either one of them. I think it
was there was multiple people in the house doing all kind of
stuff. We was arguing about anybody could have brought that
in there, so I didn't want that.
THE COURT: You're not sure on that one?
JUROR 7: Um-hmm.
(Tr. at 4375-76.) In its entry declaring a mistrial, the trial court found the juror had
recounted feeling "pressured as to Count 33 and 34." (Feb. 10, 2015 Entry at 3.) Despite
this and the testimony from Juror No. 7, the trial court did not declare a mistrial on Count
34, did not dismiss it, and ultimately sentenced Pippins to six consecutive years on it. We
Nos. 15AP-137, 15AP-138, and 15AP-140 25
find that the jury poll revealed the "appearance of [] uncertainty or contingency in [the]
jury's verdict," that the trial court did not complete its "duty" to "resolve" the "appearance
of [] uncertainty" and, thus, there "is no verdict" as to this count. Sneed at 14. A mistrial
should have been declared as to Count 34 and the trial court plainly erred in not doing so.
{¶ 54} As to Counts 3, 4, 5, 6, 7, 9, 12, 13, 14, 18, 22, 23, 24, 28, 31, 35, 36, and 37,
however, Juror No. 7 stated the verdicts were her genuine, freely given verdicts
(notwithstanding some initial uncertainty on some of them):
THE COURT: I understand. Count 3 and Count 4, you got
those checked. Same sort of thing or what?
JUROR 7: No. I went back to page 11, got clarification for
myself.
THE COURT: That was a guilty verdict as to Count 3?
JUROR 7: Um-hmm.
THE COURT: So Count 3 is fine?
JUROR 7: Um-hmm.
THE COURT: Count 4?
JUROR 7: I had to go back. I went back to the audio on 197
and 218. I went back to that. We listened to it.
THE COURT: Count 4.
JUROR 7: I went to the audio. After reading this and listening
to it more, I was still kind of not sure there.
THE COURT: Well, okay. So you're not sure as to guilt or as to
amount or what?
JUROR 7: Yes.
THE COURT: What?
JUROR 7: The heroin because there was some confusion
whether it was heroin or whether it was pills. Then when I went
back and I listened to it -- I forget the person's name. It was the
heroin.
THE COURT: What does that mean?
Nos. 15AP-137, 15AP-138, and 15AP-140 26
JUROR 7: I was okay.
THE COURT: You're okay with Count 4?
JUROR 7: Um-hmm.
THE COURT: Count 5, no question marks. Are you okay with
Count 5?
JUROR 7: Yes. I went to the stuff.
THE COURT: You went to the things. You found what you
needed?
JUROR 7: Um-hmm.
THE COURT: Count 6, weapon under disability, anything
there?
JUROR 7: I wasn't sure exactly what that meant other than he
was under some kind of investigation; he wasn't supposed to
have a firearm.
THE COURT: He was under indictment.
JUROR 7: Under indictment. He couldn't have a firearm; is
that correct?
THE COURT: Yes.
JUROR 7: When I went back and I read through that, I found
some place in the audio file or something there was guns in the
house and they saw the guns and stuff, so that's when I made
my choice, and I was okay with it.
THE COURT: You're okay with guilty on that?
JUROR 7: Um-hmm.
THE COURT: If you raised any questions that were not
resolved to your satisfaction -- we'll get to that, but I just want
to go through each of these. You don't have to go through each
count and tell me your reasoning. If you had any issue that was
not resolved, in other words, so, for example, Count 7, was that
a guilty verdict, and is that one okay?
JUROR 7: That's correct. Okay.
…
Nos. 15AP-137, 15AP-138, and 15AP-140 27
THE COURT: … [Count] 9?
JUROR 7: That was okay.
…
THE COURT: Count 12, anything there?
JUROR 7: We resolved it.
THE COURT: That was okay?
JUROR 7: Um-hmm. We resolved it.
THE COURT: Your verdict is guilty?
JUROR 7: Um-hmm.
THE COURT: You're fine with that?
JUROR 7: Um-hmm.
THE COURT: Count 13, trafficking, Felony 3.
JUROR 7: Um-hmm.
THE COURT: Count 14?
JUROR 7: Yeah. I was okay.
THE COURT: Okay. Okay means the guilty verdict is yours?
JUROR 7: Yes.
…
THE COURT: Count 18 you're fine with?
JUROR 7: Um-hmm.
…
THE COURT: Okay. All right. Count 22.
JUROR 7: I was okay with that.
THE COURT: All right. Count 23.
JUROR 7: I was okay.
Nos. 15AP-137, 15AP-138, and 15AP-140 28
THE COURT: All right. Count 24.
JUROR 7: I was okay.
…
THE COURT: Tampering with evidence.
JUROR 7: I was okay with that.
…
THE COURT: Okay. Count 31.
JUROR 7: I finally came around on that.
THE COURT: Is that your verdict?
JUROR 7: Oh, yes. They had to play it and play it over and over
again, though.
THE COURT: I understand that. That's what deliberations
can involve.
…
THE COURT: … All right. Count 31, I didn't catch on that
one with regard to Mr. Pippins and Mr. Burney.
JUROR 7: I believe there was manufacturing.
THE COURT: Okay. Is that your verdict?
JUROR 7: Um-hmm.
…
THE COURT: Weapon under disability, Mr. Pippins, Count
35?
JUROR 7: There was weapons in the house, so I was okay with
that.
THE COURT: Is that your verdict?
JUROR 7: Um-hmm.
THE COURT: Count 36, is that your verdict?
JUROR 7: Yes.
Nos. 15AP-137, 15AP-138, and 15AP-140 29
THE COURT: Okay. Count 37, weapon under disability?
JUROR 7: Um-hmm.
THE COURT: Is that your verdict?
JUROR 7: Um-hmm.
…
THE COURT: Okay. All right. Very good. As long as you're up
here then, for those things that you said yes, those are your
verdicts, those are freely, voluntarily entered by you, and the
other ones you just felt you were pressured? Is that a fair
statement?
JUROR 7: Yes.
THE COURT: Those are your verdicts, and the other ones
you're not sure?
JUROR 7: Yes.
(Tr. at 4362-78.)
{¶ 55} Pippins argues the trial court should have declared a mistrial on all counts.
Pippins argues the pressure on Juror No. 7 was pervasive to the point that none of the
verdicts reached could be considered valid. We disagree. With regard to some counts,
Juror No. 7 indicated she felt pressured and recounted that there was "a big fight about
this" that left her "upset" and "crying." (Tr. at 4374.) She indicated she had "[r]eal issues"
with some counts. (Tr. at 4371.) She also indicated some uncertainty, or at least initial
uncertainty, with respect to some counts. She expressed confusion with respect to how she
voted on a number of counts. She also indicated she voted "not guilty" on one count when
the verdict forms reflect a guilty finding and that she voted "guilty" on one count when the
verdict forms reflect a not guilty finding. She also expressed she was confused and "all the
charges [were] running together." (Tr. at 4375.) However, with respect to many of the
counts, she did not indicate any lasting problems. At the conclusion of the discussion of
her verdicts, she stated the following:
THE COURT: Okay. All right. Very good. As long as you're up
here then, for those things that you said yes, those are your
verdicts, those are freely, voluntarily entered by you, and the
Nos. 15AP-137, 15AP-138, and 15AP-140 30
other ones you just felt you were pressured? Is that a fair
statement?
JUROR 7: Yes.
THE COURT: Those are your verdicts, and the other ones
you're not sure?
JUROR 7: Yes.
(Tr. at 4377-78.) In short, while the record in this case evidences a significant level of
confusion on the part of all involved, not every count was rendered defective as a result. We
find no error in the trial court's decision to take Juror No. 7's statements at face value and
hold that some of the counts reflected her free and voluntary verdicts. Therefore, we sustain
in part and overrule in part Pippins' fourth assignment of error.
{¶ 56} Pippins argues in his second assignment of error that the jury's verdict as to
Count 1 was based on insufficient evidence. Sufficiency is:
"[A] term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the
evidence is legally sufficient to support the jury verdict as a
matter of law." … In essence, sufficiency is a test of
adequacy. Whether the evidence is legally sufficient to sustain
a verdict is a question of law.
Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, ¶ 11, quoting State v. Thompkins,
78 Ohio St.3d 380, 386 (1997); Black's Law Dictionary 1433 (6th Ed.1990). "In reviewing
a record for sufficiency, '[t]he relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.' " State v. Monroe,
105
Ohio St.3d 384,
2005-Ohio-2282, ¶ 47, quoting State v. Jenks,
61 Ohio St.3d 259 (1991),
paragraph two of the syllabus.
{¶ 57} R.C. 2923.32(A)(1) defines engaging in a pattern of corrupt activity, in
relevant part, as follows:
No person employed by, or associated with, any enterprise
shall conduct or participate in, directly or indirectly, the affairs
of the enterprise through a pattern of corrupt activity or the
collection of an unlawful debt.
Nos. 15AP-137, 15AP-138, and 15AP-140 31
"Corrupt activity" includes incidents of drug trafficking in violation of R.C. 2925.03 "when
the proceeds of the violation, the payments made in the violation, … or the value of the
contraband or other property illegally possessed, sold, or purchased in the violation exceeds
one thousand dollars" or when the same is true of "any combination of violations described
in division (I)(2)(c) of [R.C. 2923.31]." R.C. 2923.31(I)(2)(c). A "pattern of corrupt activity"
is "two or more incidents of corrupt activity, whether or not there has been a prior
conviction, that are related to the affairs of the same enterprise, are not isolated, and are
not so closely related to each other and connected in time and place that they constitute a
single event." R.C. 2923.31(E).
{¶ 58} Not considering the counts we vacate in this decision, the counts on which
Pippins was not found guilty by the jury, and the counts for which the trial court properly
declared a mistrial due to a lack of unanimity among the jurors, Pippins was still validly
convicted on significant counts of heroin trafficking, cocaine trafficking, and oxycodone
trafficking. Pippins does not argue that insufficient evidence was introduced of incidents
of corrupt activity but, instead, focuses on whether the state introduced sufficient evidence
of an "enterprise."
{¶ 59} An "enterprise" is defined as follows:
"Enterprise" includes any individual, sole proprietorship,
partnership, limited partnership, corporation, trust, union,
government agency, or other legal entity, or any organization,
association, or group of persons associated in fact although not
a legal entity. "Enterprise" includes illicit as well as licit
enterprises.
R.C. 2925.31(C). An enterprise which is not formally established (as, for example, an LLC
or partnership would be) is an "association-in-fact" enterprise and "has been defined as 'a
group of persons associated together for a common purpose of engaging in a course of
conduct.' " State v. Beverly, 143 Ohio St.3d 258,
2015-Ohio-219, ¶ 9, quoting United States
v. Turkette,
452 U.S. 576, 583 (1981), citing Boyle v. United States,
556 U.S. 938, 948
(2009). For purposes of federal RICO, after which Ohio's law is modeled, see Beverly at
¶ 3, an "association-in-fact" enterprise has been defined to require "three structural
features: a purpose, relationships among those associated with the enterprise, and
longevity sufficient to permit these associates to pursue the enterprise's purpose."
Boyle at
946.
Nos. 15AP-137, 15AP-138, and 15AP-140 32
{¶ 60} "[T]he existence of an enterprise is an element distinct from the pattern of
racketeering activity and proof of one does not necessarily establish the other." (Internal
quotation marks omitted.) Beverly at ¶ 10, quoting Boyle at 947;
Turkette at 583, citing
State v. Miranda,
138 Ohio St.3d 184,
2014-Ohio-451, ¶ 13. However, "logically, evidence
that proves one of the elements can sometimes prove the other, even though it doesn't
necessarily do so." Id. at 10. Thus, depending on the facts of the case, "an enterprise,
sufficient to sustain a conviction for engaging in a pattern of corrupt activity under R.C.
2923.32(A)(1), can be established without proving that the enterprise is a structure separate
and distinct from a pattern of corrupt activity." Id. at ¶ 13.
{¶ 61} In this case, the lead detective testified his wiretapping investigation revealed
a drug-dealing organization led by Morris. As the investigation continued, the detective
developed evidence that Pippins and Morris were the co-heads of the drug-dealing
organization. Pippins and Morris, he testified, were partners who used a common supplier
of heroin and cocaine. Morris confirmed that he and Pippins were partners, that they
pooled their money in order to buy drugs, and that they split the profits of dealing evenly
between them. He explained that they had a Mexican connection from whom they daily
purchased heroin and that they also shared customers. Morris testified another person
listed in the indictment had the role of "[f]lunkey" in the organization, cutting heroin,
cleaning up, and running errands. (Tr. at 2022.) There was also testimony from another
witness to the effect that there was no organization and that the persons indicted were just
individuals using each other as suppliers and customers in pursuit of their individual
interests. However, sufficiency analysis is not an opportunity to compare and weigh
evidence; the question is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime proved beyond a reasonable doubt. Monroe, 2005-Ohio-2282, at ¶ 47. Drawing all
inferences in favor of the state, we find that a rational jury could have concluded that there
was a drug-dealing "enterprise" with which Pippins was "associated" and in which he
"participate[d]." R.C. 2923.32(A)(1). For these reasons, Pippins' second assignment of
error is overruled.
{¶ 62} Pippins argues in his third assignment of error that his counsel was
ineffective for failing to file a motion for severance. Ineffective assistance of counsel claims
Nos. 15AP-137, 15AP-138, and 15AP-140 33
are assessed using the two-pronged approach set forth in Strickland v. Washington, 466
U.S. 668, 687 (1984). "First, the defendant must show that counsel's performance was
deficient. … Second, the defendant must show that the deficient performance prejudiced
the defense."
Id. at 687. The failure to make either showing defeats a claim of ineffective
assistance of counsel. State v. Bradley,
42 Ohio St.3d 136, 143 (1989), quoting
Strickland
at 697 (" '[T]here is no reason for a court deciding an ineffective assistance claim to
approach the inquiry in the same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one.' "). In this case, Pippins alleges that
his trial counsel was deficient in failing to move to sever Pippins' case from that of his co-defendants.
{¶ 63} In non-capital cases, "[t]wo or more defendants may be charged in the same
indictment, information or complaint if they are alleged to have participated in the same
act or transaction or in the same series of acts or transactions constituting an offense or
offenses, or in the same course of criminal conduct." Crim.R. 8(B). However, "[i]f it
appears that a defendant … is prejudiced by a joinder of offenses or of defendants in an
indictment … or by such joinder for trial together of indictments …, the court shall
order an election or separate trial of counts, grant a severance of defendants, or provide
such other relief as justice requires." Crim.R. 14.
{¶ 64} One example of prejudice from improper joinder of defendants for trial is
mutually antagonistic defenses, which are cases in which defendants seek to exculpate
themselves at the cost of inculpating co-defendants. State v. Walters, 10th Dist. No. 06AP-
693, 2007-Ohio-5554, ¶ 23-27, citing inter alia Zafiro v. United States,
506 U.S. 534, 538-
39 (1993); Bruton v. United States,
391 U.S. 123 (1968). Here, Pippins argues that this
form of prejudice was present because one of his co-defendants' counsel argued during
closing that the co-defendant was not a part of the drug-dealing enterprise between Pippins
and Morris. That is, counsel argued:
You never heard any evidence of Mr. Burney belonging to any
organization.
When Jack Morris, Tyler Griffin, and Larry Stevenson testify - -
and, again, you would think that they would be in a position to
know -- when asked who was part of their organization, Percy
Burney's name was never mentioned.
Nos. 15AP-137, 15AP-138, and 15AP-140 34
Jack Morris talked about his relationship with Keith Pippins.
Tyler Griffin talked about his relationship with Keith Pippins.
Larry Stevenson talked about his relationship with Keith
Pippins. Nobody talked about their relationship as far as any
illegal activity is concerned with Percy Burney. You never
heard a single testimony, a single word, about Mr. Burney
splitting any profits. Nobody said they made any money from
selling drugs and then shared the proceeds with Mr. Burney.
Nobody talked about or said anything about Mr. Burney going
in with them to make an investment to acquire drugs. You
never heard a single testimony about Mr. Burney setting any
prices.
(Tr. at 3968.)
{¶ 65} The record contains no motion to sever by Pippins' trial counsel. There is also
no formal order granting the state's motion to join the cases for trial. The first indication
in the record that the trial court took any action on joinder appears in a transcript of the
December 12, 2014 hearing. At the hearing, the court appeared to suggest the issue of
joinder had been taken care of at a previous status conference, although the prosecutor's
comments suggested the opposite. In other words, it appears that if the trial court ruled on
the state's motion, it did so in an off-the-record proceeding at which Pippins' counsel may
very well have opposed joinder and sought severance. This view is supported by statements
made by the trial court when Pippins' trial counsel joined counsel for the other co-defendants in renewing a motion for severance:
[BURNEY'S COUNSEL]: By law I have to renew my motion,
my objection to the Court's ruling to not sever the trial --
THE COURT: Understood.
[BURNEY'S COUNSEL]: -- as it relates to the defendants and
also renew the motion as relates to the joinder of the different
indictments, so I want to make those objections again for the
record for purposes --
THE COURT: Okay. For the record, I take it, [Pippins'
Counsel], do you join in that?
[PIPPINS' COUNSEL]: Yes, Your Honor.
THE COURT: [Second co-defendant's counsel], do you,
please?
Nos. 15AP-137, 15AP-138, and 15AP-140 35
[SECOND CO-DEFENDANT'S COUNSEL]: Yes, Your Honor,
I do too.
THE COURT: Thank you kindly.
All right. I've already ruled on them. I understand the
necessity of making the record, and, quite frankly, I'm glad you
are. So that's good.
The objections are overruled, but they are noted for the record.
Thank you.
(Tr. at 83.) In short, it is not clear from the record that Pippins' defense counsel did fail to
request severance. Indeed, from the record that is preserved, it appears counsel probably
did request that the cases be severed and not joined for trial. The question then is whether
the request was constitutionally ineffective.
{¶ 66} According to Supreme Court precedent:
To prevail on his claim that the trial court erred in denying his
motion to sever, the defendant has the burden of
demonstrating three facts. He must affirmatively demonstrate
(1) that his rights were prejudiced, (2) that at the time of the
motion to sever he provided the trial court with sufficient
information so that it could weigh the considerations favoring
joinder against the defendant's right to a fair trial, and (3) that
given the information provided to the court, it abused its
discretion in refusing to separate the charges for trial.
State v. Schaim, 65 Ohio St.3d 51, 59 (1992), citing State v. Torres,
66 Ohio St.2d 340
(1981), syllabus; see also State v. Spaulding,
151 Ohio St.3d 378,
2016-Ohio-8126, ¶ 63.
Here, because the request to sever was not preserved in the record, it is impossible to
determine whether "at the time of the motion to sever [Pippins] provided the trial court
with sufficient information so that it could weigh the considerations favoring joinder
against [Pippins'] right to a fair trial."
Schaim at 59. Because we cannot ascertain whether
the off-the-record oral motion was of sufficient persuasive detail that it should have been
granted, we cannot say that Pippins' counsel's failure to file a written motion was the sort
of deficient performance that probably would have affected the outcome of the case. That
is, a defendant alleging ineffective assistance, "must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to undermine
Nos. 15AP-137, 15AP-138, and 15AP-140 36
confidence in the outcome."
Strickland at 694. Since Pippins cannot show such a
probability, his assignment of error falls short. For these reasons, we overrule Pippins' third
assignment of error.
{¶ 67} Pippins argues in his first assignment of error that it was plain error for the
same judge who approved the wiretap warrants to preside over his jury trial. Pippins'
counsel did not object to the fact that the judge who administered the wiretap warrants in
this case was the same judge who served as the trial judge. Thus, we review his assignment
of error raising that issue for plain error. Rogers at ¶ 22. As discussed above, an accused
seeking to show that an obvious error affected his or her substantial rights and, thereby, the
outcome must demonstrate a "reasonable probability that the error resulted in prejudice,"
such that there is a "probability of a different result [that] is sufficient to undermine
confidence in the outcome of the proceeding." (Emphasis sic and internal quotation marks
omitted.) Myers at ¶ 130; Rogers at ¶ 22. Pippins disagrees with this analysis, arguing that
the alleged error is structural and, thus, that it evades harmless error analysis.
{¶ 68} R.C. 2933.51 through 2933.66 set forth the procedure in Ohio for wiretapping
investigations. Although magistrates are typically, though not necessarily, the persons who
decide whether to issue warrants, wiretap warrants, also known as "interception warrants,"
must instead be obtained through common pleas court judges. Compare R.C. 2933.522
(authorizing judges of courts of common pleas to consider and issue wiretap warrants) with
R.C. 2933.23 (authorizing judges or magistrates to issue a search warrant on a finding of
probable cause); see also R.C. 2933.51(W) (defining "judge of a court of common pleas" to
exclude judges which do not serve at least in part as "general jurisdiction" judges). The
application for a wiretap warrant, like a typical search warrant, must set forth the cause that
justifies seeking the warrant. R.C. 2933.53(B)(3) and 2933.54(A)(1) through (3). But
unlike a typical warrant, the application for the warrant must also detail why normal
investigative procedures have failed, are unlikely to succeed, or are too dangerous. R.C.
2933.53(B)(7) and 2933.54(A)(4). This is significant because it encourages an application
to speak ex parte not only to the potential criminality being investigated but also to the
offender's determination to avoid justice, which is a consideration the Supreme Court has
previously emphasized in ruling that a judge who hears a motion to perpetuate testimony
under Crim.R. 16(F) may not serve as trial judge in the same matter. State v. Gillard, 40
Nos. 15AP-137, 15AP-138, and 15AP-140 37
Ohio St.3d 226, 229 (1988), paragraph one of the syllabus. Moreover, unlike an ordinary
warrant, a wiretap warrant contemplates continuing involvement by the common pleas
court in the form of regular weekly updates to the judge on the investigation progress and
the need for the warrant to continue. R.C. 2933.56(A)(11). In short, unlike in the case of
an ordinary warrant, a wiretap warrant involves the judge in the investigation on a regular
ongoing basis, informs the judge of the suspect's dangerousness or attempts to evade
justice, and necessarily involves a type of judge, i.e., common pleas judge, that is the same
type that might be called on to sit as a judge in the trial.
{¶ 69} Thus, we agree with Pippins that, if a judge both administers a wiretap
investigation and then sits as the trial judge, this has the potential to be problematic. As
the United States Supreme Court has stated:
[N]o man can be a judge in his own case and no man is
permitted to try cases where he has an interest in the outcome.
That interest cannot be defined with precision. Circumstances
and relationships must be considered. This Court has said,
however, that "every procedure which would offer a possible
temptation to the average man as a judge … not to hold the
balance nice, clear and true between the State and the accused,
denies the latter due process of law." Tumey v. Ohio, 273 U.S.
510, 532 [(1927)]. Such a stringent rule may sometimes bar trial
by judges who have no actual bias and who would do their very
best to weigh the scales of justice equally between contending
parties. But to perform its high function in the best way "justice
must satisfy the appearance of justice." Offutt v. United States,
348 U.S. 11, 14 [(1954)].
In re Murchison,
349 U.S. 133, 136 (1955). There is a danger that repetitive updates,
repetitive approval, and long-term involvement of a judge in an investigation may lead to
the judge developing, or being perceived to have developed, a personal interest in seeing
the investigation reach a successful conclusion—the conviction of the elusive guilty targets.
We also recognize, consistent with Pippins' argument that this amounts to structural error,
that "[t]he presence of a biased judge on the bench is, of course, a paradigmatic example of
structural constitutional error, which if shown requires reversal without resort to harmlesserror analysis." State v. Sanders,
92 Ohio St.3d 245, 278 (2001), citing Arizona v.
Fulminante,
499 U.S. 279, 309-10 (1991).
{¶ 70} However, a necessary prerequisite to invoking structural error under the
plain language of Sanders is showing bias. While we recognize that, as compared to a
Nos. 15AP-137, 15AP-138, and 15AP-140 38
traditional warrant, the lengthier and more involved procedure for wiretap warrants
presents a higher potential for a judge to develop, or be perceived to have developed, a bias
in favor of the investigation, potentiality is not actuality. The Supreme Court has recognized
that a judge who hears a large quantity of inflammatory information in connection with a
request to perpetuate testimony under Crim.R. 16(F), should not sit as the judge in the trial
of that case. See Gillard at paragraph one of the syllabus. However, the Supreme Court
also recognized that a violation of that rule is not "per se prejudicial." Id. We find Gillard
instructive in considering the situation under review.
{¶ 71} It is the burden of the accused, in this case, Pippins, to demonstrate that the
judge became biased or that the judge participated so continuously in the investigation and
was exposed to such prejudicial information that bias would be perceived by an objective
observer reviewing the case. See Sanders at 278 (actual bias is structural error);
Murchison
at 136, quoting Offutt v. United States,
348 U.S. 11, 14 (1954) (" 'justice must satisfy the
appearance of justice' "). In this case, Pippins did not carry his burden.
{¶ 72} Pippins does not allege, and we did not find in our review of the record, any
indication that the trial judge was actually biased against Pippins.
{¶ 73} The wiretap documents, which were attached to the state's memorandum
contra Pippins' motion to suppress, do not paint a picture of a judge who was involved in
the investigation to such an extent that his impartiality would be called into doubt by an
objective observer. The trial judge signed warrants and applications for warrants on
January 31, February 18 and 28, and March 4, 2014. Nothing else in the record suggests
the trial judge was otherwise involved with the investigation or spending time on it prior to
the filing of indictments. Though the warrants all indicated that seven-day reports on the
investigation would be given to the judge, there is no indication in the record that occurred.
{¶ 74} It is true, as Pippins argues, that the warrant applications and affidavits
contained material prejudicial to Pippins beyond the normal probable cause supporting
content of warrant affidavits. This material took the form of statements by confidential
informants that they feared harm to themselves and their families from Pippins if they
cooperated and that Pippins and the others involved in the drug dealing organization had
a history of dealing violently with enemies. But such statements are not significantly
different from the material considered in Gillard, where the court was given information
Nos. 15AP-137, 15AP-138, and 15AP-140 39
ex parte that Gillard was the national president of the Outlaw motorcycle gang and that the
gang and Gillard's brothers had threatened witnesses with death if the witnesses chose to
cooperate with authorities. Gillard at 228-29.
{¶ 75} Because we find neither actual bias nor circumstances showing there would
be an objective perception of bias in this case, structural error analysis is not invoked. See
Murchison at 136;
Sanders at 278; Gillard at 229. Because structural error analysis is not
invoked and Pippins failed to object to the trial judge presiding over both the warrant
procedures and the trial, we review the issue for plain error. Rogers at ¶ 22. Pippins relied
wholly on his structural error argument and has not presented any argument that he
suffered prejudice as a result of having the same judge hear the warrant applications and
sit for the trial. Thus, he has not demonstrated a "reasonable probability" that any error
by the trial court in sitting for both the trial and warrant applications, resulted in prejudice
such that there is a "probability of a different result [that] is sufficient to undermine
confidence in the outcome of the proceeding." (Emphasis sic and internal quotation marks
omitted.)
Myers at ¶ 130; Rogers at ¶ 22. For these reasons, we overrule Pippins' first
assignment of error.
{¶ 76} Accordingly, we overrule Pippins' first, second, and third assignments of
error, and sustain in part and overrule in part Pippins' fourth assignment of error. We
affirm in part and reverse in part the judgment of the Franklin County Court of Common
Pleas, and remand this matter to that court for further proceedings in accordance with law
and consistent with this decision.
Judgment affirmed in part
and reversed in part; cause remanded.
SADLER, P.J., concurs.
BRUNNER, J., concurs in part and dissents in part.
BRUNNER, J., concurring in part and dissenting in part.
{¶ 77} The majority finds that the trial court plainly erred in convicting and
sentencing Pippins on Counts 19 and 34 for the following reasons: Juror No. 7 stated that
she was uncertain of her verdict as to Count 19 and, although the trial court declared a
mistrial in a footnote of its mistrial entry on that count, it sentenced Pippins to 6 years on
Count 19. See supra at ¶ 45-46. Juror No. 7 indicated she was uncertain of her verdict on
Nos. 15AP-137, 15AP-138, and 15AP-140 40
Count 34 and the trial court's mistrial entry found that the juror was pressured as to that
count, but the trial court failed to find a mistrial and instead sentenced Pippins to 6 years
on Count 34. See supra at ¶ 53. The majority therefore sustains in part Pippins fourth
assignment of error and holds that these counts must be vacated. The majority finds no
merit in any of Pippins' other three assignments of error and overrules them. I concur with
these findings by the majority and the reasoning underlying the findings.
{¶ 78} However, I write separately because I would also find that Counts 1 and 15
should be vacated. My reading of the record, as faithfully preserved by the transcript, is
that the trial court failed to poll Juror No. 7 as to Count 1. A review of the transcript
indicates this same juror was pressured into her verdict on Count 15 by other jurors.
Accordingly, I would also vacate as to those counts. Because the majority does not, I
respectfully dissent to that extent.
{¶ 79} As I agree with the majority's articulation of the law in this area, I will only
briefly repeat the principles involved. "Crim.R. 31(D) grants the trial judge or any party the
absolute right to have the jury polled after it has returned its verdicts." State v. Sneed, 63
Ohio St.3d 3, 14, fn. 5 (1992). "If upon the poll there is not unanimous concurrence, the
jury may be directed to retire for further deliberation or may be discharged." Crim.R. 31(D).
Thus, in the event of non-unanimity, a trial court has discretion whether to direct the jury
"to retire for further deliberation" or to "discharge[]" the jury.
Id. It cannot be
overemphasized that a trial court does not have discretion to accept a non-unanimous
verdict in a criminal case.
{¶ 80} Crim.R. 31(A) explicitly requires that a "verdict shall be unanimous." The
Ohio Constitution requires that "[t]he right of trial by jury shall be inviolate, except that, in
civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of
not less than three-fourths of the jury."1 Ohio Constitution, Article I, Section 5. The
Supreme Court of Ohio has confirmed that Article I, Section 5 of the Ohio Constitution
requires juror unanimity in criminal cases.
[O]ur opinion is, that the essential and distinguishing features
of the trial by jury as known at the common law, and generally,
if not universally, adopted in this country, were intended to be
preserved, and its benefits secured to the accused in all
1Though the exception permitting a three-fourths verdict for civil trials was added in 1912, the Constitution
has never been amended to include an exception to the implied unanimity requirement for criminal cases.
Nos. 15AP-137, 15AP-138, and 15AP-140 41
criminal cases, by the constitutional provisions referred to
[Ohio Const. Art. 1, Sec. 5]. That it is beyond the power of the
General Assembly to impair the right, or materially change its
character; that the number of jurors cannot be diminished, or
a verdict authorized short of a unanimous concurrence of all
the jurors.
Work v. State, 2 Ohio St. 296, 306 (1853) (overruled as to the holding regarding the
absolute immutability of the number of jurors in misdemeanor cases in State ex rel.
Columbus v. Boyland,
58 Ohio St.2d 490 (1979), syllabus); see also State v. Robbins,
176
Ohio St. 362, 364 (1964); McHugh v. State,
42 Ohio St. 154, 156 (1884); see also
Richardson v. United States,
526 U.S. 813, 820 (1999) (remarking that "this Court has
indicated that the [federal] Constitution itself limits a State's power to define crimes in ways
that would permit juries to convict while disagreeing about means, at least where that
definition risks serious unfairness and lacks support in history or tradition"); but cf. State
v. Gardner,
118 Ohio St.3d 420,
2008-Ohio-2787, ¶ 35 (plurality decision remarking that
Ohio only imposes a unanimity requirement by rule).
{¶ 81} Because unanimity is required explicitly by rule and implicitly by the
Constitution, when there is " '[i]n any case … the appearance of any uncertainty or
contingency in a jury's verdict, it is the duty of the trial judge to resolve that doubt, for "there
is no verdict as long as there is any uncertainty or contingency to the finality of the jury's
determination." ' " Sneed at 14, quoting United States v. Morris,
612 F.2d 483, 489 (10th
Cir.1979), quoting Cook v. United States,
379 F.2d 966, 970 (5th Cir.1967). Thus, " 'a jury
has not reached a valid verdict until deliberations are over, the result is announced in open
court, and no dissent by a juror is registered.' "
Sneed at 14, fn. 5, quoting United States v.
Taylor,
507 F.2d 166, 168 (5th Cir.1975). And once a jury has been discharged, the verdict
cannot be altered. Sargent v. State, 11 OHIO 472, 473 (1842).
{¶ 82} The law requires that a jury must be polled if the defendant requests it and
there is no verdict until it is "announced in open court" without "any uncertainty or
contingency." Sneed at 14, fn. 5. A conviction may not stand based on a "verdict" that is
accepted without being unanimous and announced in open court, because a defendant has
a "substantial right to a unanimous jury verdict." State v. Rawson, 10th Dist. No. 14AP-
1023,
2016-Ohio-1403, ¶ 23-24. Consequently, an unanimity error is a "defect[] affecting
substantial rights." Crim. R. 52(B). In other words, an unanimity error always affects the
Nos. 15AP-137, 15AP-138, and 15AP-140 42
outcome and is plain. Id.; Rawson at ¶ 23-24; United States v. Ullah,
976 F.2d 509, 514
(9th Cir.1992).
{¶ 83} In this case, the jury initially announced verdicts finding Pippins guilty of
Count 1 (pattern of corrupt activity), Counts 2, 4, 5, 7, 10, 12, 16, 18, 19, 20, 21, 23, 24, 29,
30, 32, and 34 (heroin trafficking), Counts 3 and 13 (cocaine trafficking), Counts 14, 15, and
22 (oxycodone trafficking), Counts 9, 17, and 31 (manufacture of drugs), Count 33 (heroin
possession), Counts 26 and 27 (felonious assault), Counts 6, 35, 36, and 37 (weapon under
disability), and Count 28 (tampering with evidence). (Feb. 10, 2015 Verdict Forms2; Tr. at
4328-47, 4349-51.) Then the defendants, including Pippins, requested that the jury be
polled. (Tr. at 4349.)
{¶ 84} As to Count 1 (pattern of corrupt activity), the trial court did not poll Juror
No. 7 as requested by the parties and instead started at Count 2:
THE COURT: Okay. You're Juror Number 7.
Okay. Now, with regard to the verdicts involving Keith Pippins,
are these your verdicts?
JUROR 7: Yes.
THE COURT: Freely, voluntarily, and independently found
and entered by you?
JUROR 7: Can I ask you a question, or can I say anything?
THE COURT: Yes. I'll tell you what. Why don't you write it
down? Can you do that?
Let me just give you a piece of paper and a pen.
THE COURT: Thank you.
Okay. Okay. What I'm going to do then is I'm going to go
through these individually with you. Okay?
All right. And let's see here. Okay. Count 1, I'm going to go --
these are all with regard to Mr. Pippins. Okay. What?
Tell you what. Do you want to approach?
2The verdict forms for Counts 24 and 26 are dated February 3. Counts 1, 17, 29, 30, 31, and 32 are dated
February 4. The verdict forms for Counts 27 and 28 are dated February 5. The remaining verdict forms are
dated February 2. Thus, for simplicity, I refer to the verdict forms by the filed date.
Nos. 15AP-137, 15AP-138, and 15AP-140 43
JUROR 7: Yes.
THE COURT: Okay. Come on and do that.
Noise, again, please. Then we will need counsel up here as well.
[PIPPINS' COUNSEL]: Do you want the attorneys?
THE COURT: Yes. Noise, please.
---
Thereupon, the following discussion was held at the bench with
the court and counsel outside the hearing of the jury:
THE COURT: Okay. Now, let me just get your note here. Okay.
It says here some of the charges I wasn't quite clear about.
Hence the reason for my further note.
Okay. So that's why I wanted to go over each one of these with
you. And , basically, I'll hand them to you. Okay? And then - -
JUROR 7: You know that packet that you gave us? If I could
look at that.
THE COURT: Yes. Go get it.
JUROR 7: Thank you.
THE COURT: I think that was the one that said do we have to -
- is it an all or nothing type of thing.
Come on up here, please. Thank you.
Now, how do you want to go through this? You got them all?
JUROR 7: Yeah.
THE COURT: Very good.
JUROR 7: I have detailed notes.
THE COURT: Let's go back to Count 1 then, and that starts
right here. Showing us your notes, and we'll start out with
Count 2, Keith Pippins, these are your notes, right?
JUROR 7: Yes.
Nos. 15AP-137, 15AP-138, and 15AP-140 44
THE COURT: What you've got here is Count 2, Count 2, guilty.
And checkmark, that means you agree with that?
JUROR 7: I had questions. I had some questions.
THE COURT: With Count 2 you had a question, you say?
JUROR 7: Um-hmm.
(Tr. at 4359-61). The trial court never returned to Count 1 after becoming distracted by the
juror's notes and therefore never received an affirmation from Juror No. 7 that Count 1 was
her free, voluntary, and independent verdict. Thus, as to that count, the poll and, hence,
verdict were incomplete and were still incomplete when the jury was discharged. Thus,
Pippins' conviction on Count 1 is based on an incomplete verdict, constitutes plain error,
and cannot stand. Sneed at 14.
{¶ 85} The majority quotes this same section of transcript but then notes that the
trial court later indicated its belief that Juror No. 7 had " 'nothing with regard to Count 1.' "
See supra at ¶ 35, quoting Tr. at 4388. The majority also observes that the trial court's entry
from February 10, 2015, states that Juror No. 7's notes (which were never introduced or
read into the record) "indicate[d] that there was no problem with the first count." (Feb. 10,
2015 Decision & Entry at 2.) See supra at ¶ 37. The majority accepts these statements by
the judge as authoritative indications that Juror No. 7 had no problem with Count 1 and
seems to be taking the position that as long as no problems were indicated with a count, we
should assume the juror would have adopted the verdict as her own during the poll. See
supra at ¶ 35-39. The transcript demonstrates that the purported "indication" was, rather,
an abdication by the trial court of its duties to ensure "inviolate" the defendant's right to a
trial by a jury of his peers, as guaranteed by and intrinsic to the rule of law. Ohio
Constitution, Article I, Section 5.
{¶ 86} With all due respect to the views of the majority and the efforts made by the
trial court, I believe that when there is "in any case … the appearance of any uncertainty
or contingency in a jury's verdict, it is the duty of the trial judge to resolve that doubt, for
there is no verdict as long as there is any uncertainty or contingency to the finality of the
jury's determination." (Internal quotation marks omitted.) Sneed at 14. Here, this juror
registered what is fairly characterized as a general uncertainty about her verdicts. With
respect to Counts 15, 16, 20, 21, 30, and 33, Juror No. 7 indicated she felt pressured and
Nos. 15AP-137, 15AP-138, and 15AP-140 45
with respect to one, Count 33, she recounted that there was "a big fight about this" that left
her "so upset" and "crying." (Tr. at 4365-67, 4369-74.) She indicated she had "[r]eal issues"
with Counts 25, 26, and 27. (Tr. at 4371.) She also indicated some uncertainty (or at least
initial uncertainty) with respect to Counts 2, 4, 6, 17, 19, 21, 29, 30, 32, and 34. (Tr. at 4362-
64, 4367-76.) She expressed confusion with respect to how she voted on a number of
counts. She indicated she voted "not guilty" on Count 10 when the verdict forms reflect a
guilty finding and that she voted "guilty" on Count 11 when the verdict forms reflect a not
guilty finding. Compare Tr. at 4364-65 with Feb. 10, 2015 Verdict Forms. Juror No. 7
expressed two different beliefs as to her vote on Count 19 with respect to Percy Burney
before indicating she was uncertain. (Tr. at 4368-69.) The juror indicated that she would
never have voted guilty on Count 33, notwithstanding the guilty verdict executed by the
jury. (Tr. at 4374.) She also expressed that she was confused and that "all the charges
[were] running together." (Tr. at 4375.) In short, she demonstrated a high level of
confusion and never conveyed an indication of any type that, unless she expressed a
problem with a count, the court should assume the jury's verdict was her verdict. In fact,
her discussion with the trial judge concluded as follows:
THE COURT: Okay. All right. Very good. As long as you're up
here then, for those things that you said yes, those are your
verdicts, those are freely, voluntarily entered by you, and the
other ones you just felt you were pressured? Is that a fair
statement?
JUROR 7: Yes.
THE COURT: Those are your verdicts, and the other ones
you're not sure?
JUROR 7: Yes.
(Tr. at 4377-78.)
{¶ 87} To summarize, the transcript indicates this juror was not polled in open court
as to whether Count 1 was her free and voluntary verdict. Thus, Count 1 is, by her own
statements, among "the other ones" for which she was "not sure." (Tr. at 4377-78.) Given
the high level of confusion the juror otherwise indicated, and regardless of the trial judge's
after-the-fact statements, we fail in our duty to the rule of law if we make assumptions about
how the juror might have responded had she been polled in open court on Count 1. Because
Nos. 15AP-137, 15AP-138, and 15AP-140 46
we cannot make such an assumption about how she would have responded, the transcript
indicates that the verdict on Count 1 is uncertain; thus, I would reverse as to Count 1. As
the majority does not, I dissent.
{¶ 88} Juror No. 7 also indicated she was pressured with respect to Counts 15, 16,
and 17:
THE COURT: Okay. Count 15?
JUROR 7: I was on the fence on this, but I voted guilty.
THE COURT: Well, do you believe that he was guilty? Did the
state meet its burden of proof? Are you satisfied that it's a guilty
verdict here?
Again, you reach a verdict based on your own decision, not
upon the consensus, or what have you, just to be friendly.
JUROR 7: I think that's what I did there.
THE COURT: Why you did what?
JUROR 7: I think I was pressured into that decision.
THE COURT: Count 15 or which count?
I think we had gotten to -- I think we were at 15.
No. I'm sorry. We were at 16.
JUROR 7: We was here.
THE COURT: So that's what you're not sure. Everything else is
fine but that one?
JUROR 7: Um-hmm.
THE COURT: No. That was not her verdict, at least at that
point. I'm going to highlight that one. Just going to put a little
highlight through so that I know. Her Counts 2 or 3, well we'll
come back to that. Okay.
[PIPPINS' COUNSEL]: I would like to note her language was
she felt she was pressured.
THE COURT: Yes. I understand that.
Okay? Let me continue. Thank you.
Nos. 15AP-137, 15AP-138, and 15AP-140 47
All right. Count 17. All right? There you've got question marks,
and you've got some of your own notes there.
JUROR 7: I have to say this too. I have no understanding of
drugs and the terminology, you know, the language and stuff. I
think I even mentioned that in here, and so they was talking
about cutting stuff, melting stuff, I got to cut it, I got to fix it.
Our understanding back there was not the same, and we would
go around and around.
THE COURT: With regard to 17, you're not sure?
JUROR 7: Um-hmm.
(Tr. at 4365-67.) Because the trial court apparently lost track of what count was under
discussion, the record suggests Juror No. 7 was pressured with respect to both Counts 15
and 16. The trial court's entry included language that hand gestures by Juror No. 7 showed
that she was only pressured on Counts 16 and 17. (Feb. 10, 2015 Decision & Entry at 2, fn.
2.) But this Court decides cases based on what actually exists in the record as it is preserved
for appeal. Morgan v. Eads, 104 Ohio St.3d 142,
2004-Ohio-6110, ¶ 13 ("[A] bedrock
principle of appellate practice in Ohio is that an appeals court is limited to the record of the
proceedings at trial."). The trial court did not, during the colloquy with Juror No. 7,
describe for the record what the juror was doing or insist on an intelligible oral response.
Absent those measures that would have supported the trial court's ruling, the transcript
speaks for itself and shows that Juror No. 7 was indicating uncertainty and pressure as to
Count 15 also. When the trial court properly declared a mistrial on Counts 16 and 17, it also
should have done so for Count 15 based on the state of the transcript as preserved for
appeal. Because the majority does not, I dissent.
{¶ 89} "The right of trial by jury shall be inviolate." Ohio Constitution, Article I,
Section 5. It is therefore beyond the power of the legislature, the executive, the courts, or
any power, save only the people themselves by amendment to the Constitution, to abridge
the right for the verdict of a jury in a criminal case to be unanimous before a conviction may
be obtained. Robbins, 176 Ohio St. at 364; McHugh, 42 Ohio St. at 156; Work, 2 Ohio St.
at 306; see also Richardson, 526 U.S. at 820. In Pippins' case, the after-the-fact narrations
by the trial court of what does not exist in the record (gestures, unless verbally narrated or
described by the one expressing or observing them, such that words are also used to convey
Nos. 15AP-137, 15AP-138, and 15AP-140 48
what these gestures are or purport to be) cannot exist in a transcript. Nor can notes that
are never read or introduced into evidence be part of a transcript. The state of the record
imbues little to no confidence that Juror No. 7 agreed with her fellow jurors as to Counts 1
and 15. Convicting Pippins on those counts constituted plain error and I dissent
accordingly. Otherwise, I concur in other holdings in the opinion not addressed by this
dissent.
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