[This opinion has been published in Ohio Official Reports at
89 Ohio St.3d 250.]
KOCH, APPELLANT, v. RIST, APPELLEE.
[Cite as Koch v. Rist, 2000-Ohio-149.]
Civil procedure—Alternate juror dismissed at conclusion of trial accompanies
jury into jury room during deliberations and remains there until jury
reaches verdict—Trial court does not abuse its discretion when ordering
a new trial based on juror misconduct.
(No. 99-504—Submitted January 25, 2000—Decided July 12, 2000.)
APPEAL from the Court of Appeals for Erie County, No. E-97-049.
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{¶ 1} Appellant, Kelly Koch, filed suit against appellee, Douglas C. Rist,
M.D., for medical malpractice. At the conclusion of the trial, the only alternate
juror, Fred Brownell, was dismissed. Nevertheless, Brownell accompanied the jury
into the jury room during deliberations and remained there until the jury reached its
verdict.
{¶ 2} Upon learning of Brownell’s presence in the deliberation room,
counsel for Rist suggested that the court question the jury about Brownell’s specific
“participation, conversation, deliberations, and actions.” The trial judge declined
to do so. However, he did question Brownell about why he had entered the jury
room. Brownell responded that he did not think it mattered.
{¶ 3} At that point, the judge determined that he would read the verdict and
then poll the jury. The verdict was read in favor of Rist. The eight members of the
jury were polled and each affirmed that the verdict was his or her own.
{¶ 4} The judge then questioned Brownell about the effect of his presence
on the jury. Although Brownell stated that he had contributed nothing to the jury’s
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verdict, the judge responded that his presence had compromised the jury and
ordered a new trial.
{¶ 5} The court of appeals reversed, finding that the trial court had abused
its discretion by granting a mistrial and reinstated the jury verdict in favor of Rist.
{¶ 6} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
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Rubenstein, Novak, Einbund & Pavlik, L.L.P., William J. Novak, Thomas
D. Robenalt and Susan E. Yarb, for appellant.
Eastman & Smith, Ltd., and John D. Willey, Jr., for appellee.
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PFEIFER, J.
{¶ 7} This case requires us to determine whether the trial court abused its
discretion when it ordered a new trial based on juror misconduct because a
dismissed alternate juror sat in on jury deliberations. For the reasons that follow,
we conclude that the trial court did not abuse its discretion.
{¶ 8} A trial court may grant a new trial for various specified reasons,
including an “[i]rregularity in the proceedings of the court, jury, magistrate, or
prevailing party.” Civ.R. 59(A)(1). Even absent one of the grounds specified, a
trial court may grant a new trial “in the sound discretion of the court for good cause
shown.” Civ.R. 59(A)(9).
{¶ 9} There is a rule of long standing in Ohio that a trial court ought not to
“reverse a judgment because of the misconduct of a juror unless prejudice to the
complaining party is shown.” State v. Hipkins (1982), 69 Ohio St.2d 80, 83,
23
O.O.3d 123, 125,
430 N.E.2d 943, 946. See Armleder v. Lieberman (1877),
33
Ohio St. 77,
1877 WL 165, paragraph one of the syllabus. We have applied this
rule to a number of cases involving ordinary juror misconduct. State v. Sheppard
(1998),
84 Ohio St.3d 230, 233,
703 N.E.2d 286, 290 (juror asked question of
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January Term, 2000
psychologist friend before beginning of deliberations); State v. Keith (1997), 79
Ohio St.3d 514, 527,
684 N.E.2d 47, 60-61 (juror discussed the jury process with
non-jurors during trial); State v. Grant (1993),
67 Ohio St.3d 465, 480,
620 N.E.2d
50, 67 (juror asked a testifying detective “how he was feeling”); Hipkins,
69 Ohio
St.2d at 83, 23 O.O.3d at 125,
430 N.E.2d at 945-946 (juror had brief conversation
with witness). However, the case before us involves extraordinary misconduct
where a stranger to the jury entered the jury room and remained there throughout
the entire deliberative process.
{¶ 10} Since this is a case of first instance in our state, we have reviewed
several similar cases adjudicated in other states. One court has held that allowing
alternate jurors to be present during jury deliberations for ten minutes is enough to
taint a jury. Commonwealth v. Krick (1949), 164 Pa.Super. 516, 520-521,
67 A.2d
746, 749. Another court stated that alternate jurors “really are not jurors. When
they attend jury deliberations they do so as mere strangers.” Commonwealth v.
Smith (1988),
403 Mass. 489, 494,
531 N.E.2d 556, 559. See Brigman v. State
(Okla.Crim.App.1960),
350 P.2d 321, 323. Still another court has stated that “any
time an alternate juror is in the jury room during deliberations he participates by his
presence, and whether he says little or nothing, his presence will void the trial.”
State v. Bindyke (1975),
288 N.C. 608, 627-628,
220 S.E.2d 521, 533. Finally,
several courts have written of the difficulty and dangers of inquiring into the
prejudicial effect of an alternate juror’s presence in jury deliberations. United States
v. Beasley (C.A.10, 1972),
464 F.2d 468, 470 (inquiry itself is dangerous intrusion
into the proceeding of the jury); United States v. Virginia Erection Corp. (C.A.4,
1964),
335 F.2d 868, 871-872; State v. Cuzick (1975),
85 Wash.2d 146, 150,
530
P.2d 288, 290; Bindyke; Krick.
{¶ 11} Were any of these factors the sole factor for the trial court to
consider, it might have arrived at a different decision. However, the trial court was
not confronted with a lengthy intrusion, or a stranger to the jury, or possible non-
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verbal communication, or the difficulty of determining prejudice. The trial court
was confronted with all four.
{¶ 12} The trial court was also aware of this court’s concern about the
sanctity of jury deliberations. We recently stated, “ ‘Courts face a delicate and
complex task whenever they undertake to investigate reports of juror misconduct
or bias during the course of a trial. This undertaking is particularly sensitive where,
as here, the court endeavors to investigate allegations of juror misconduct during
deliberations. As a general rule, no one—including the judge presiding at trial—
has a “right to know” how a jury, or any individual juror, has deliberated or how a
decision was reached by a jury or juror.’ ” State v. Robb (2000), 88 Ohio St.3d 59,
81,
723 N.E.2d 1019, 1044, quoting United States v. Thomas (C.A.2, 1997),
116
F.3d 606, 618. See Virginia Erection Corp.,
335 F.2d at 872 (“presence of the
alternate in the jury room violated the cardinal principle that the deliberations of
the jury shall remain private and secret in every case”).
{¶ 13} Brownell’s improper presence likely was innocent and his influence
may have been negligible. However, given its duration, his status as a non-juror,
the possibility if not likelihood of non-verbal communication, and the difficulty of
determining whether he prejudiced the jury, we cannot say that the trial court was
wrong to grant a mistrial. To do so, we would have to find an abuse of discretion,
which connotes an attitude by the court that is arbitrary, unreasonable, or
unconscionable. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169,
559 N.E.2d
1301, 1308. Our review of the record reveals nothing of the sort.
{¶ 14} Our opinion does not abrogate the long-standing rule that juror
misconduct should not be the cause of a reversal absent prejudice. Neither does it
create a presumption of prejudice whenever an outsider invades the sanctity of jury
deliberations. But, see, Bindyke, 220 S.E.2d at 531 (majority view is that the
presence of an outsider during deliberations requires declaration of mistrial).
Instead, we will continue to rely upon the sound discretion of our trial judges.
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January Term, 2000
When confronted with extraordinary circumstances, a trial court must be allowed
to consider all of the pertinent circumstances in arriving at a decision. Given the
circumstances in this case, the trial court did not abuse its discretion by granting a
new trial.
{¶ 15} Accordingly, the judgment of the court of appeals is reversed, and
the cause is remanded to the trial court for a new trial.
Judgement reversed
and cause remanded.
MOYER, C.J., DOUGLAS, FAIN and F.E. SWEENEY, JJ., concur.
MOYER, C.J., and DOUGLAS, J., concur separately.
FAIN, J., concurs separately.
COOK and LUNDBERG STRATTON, JJ., dissent.
MIKE FAIN, J., of the Second Appellate District, sitting for RESNICK, J.
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DOUGLAS, J., concurring.
{¶ 16} I concur in the well-reasoned opinion and judgment of the majority.
While the majority’s discussion of cases from other jurisdictions is both interesting
and useful, I would answer the primary question before us by referring to Civ.R.
47(C). Civ.R. 47(C) states, in part, that “[a]n alternate juror who does not replace
a regular juror shall be discharged after the jury retires to consider its verdict.”
(Emphasis added.) The “juror” in question herein was, having been discharged, no
longer a juror. Thus, attendance in the room where the jury was deliberating was
improper, and even without proof of anything else, the mere presence of a nonjuror
was cause to grant a mistrial. The trial judge was clearly correct and, I would
submit, under a duty to act, given the clear violation of the rule.
MOYER, C.J., concurs in the foregoing concurring opinion.
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FAIN, J., concurring.
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{¶ 17} I concur in Justice Pfeifer’s opinion for the court, but I write
separately to elaborate upon my reasoning. In my view, the trial judge did not abuse
his discretion by declaring a mistrial, especially because that action by the trial
court was invited by counsel for both parties, who indicated, before the verdict was
known, that the unusual circumstance of the alternate juror having sat in the jury
room throughout deliberations “place[d] a question mark” on “the validity of the
verdict,” as counsel for Rist, the party who prevailed in the verdict, put it. Although
Rist’s counsel thereafter sought to have the trial judge question the regular jurors
concerning the alternate juror’s role during deliberations, the trial judge was well
within his discretion in rejecting this proposal, since that would have infringed upon
the privacy of the jury’s deliberative process.
{¶ 18} Although I concur that the trial judge was within his discretion in
declaring the mistrial, especially in view of the implicit invitation to do so by
counsel for both parties, who indicated that the alternate juror’s presence during
deliberations had tainted the verdict, I am of the opinion that the trial judge would
also have been well within his discretion had he decided not to declare a mistrial.
In this I am guided by this court’s opinion1 in Armleder v. Lieberman (1877), 33
Ohio St. 77, which analyzed a comparable situation with reasoning remarkably
applicable one hundred twenty-three years later. While a jury was deliberating, a
“dangerous” fire broke out less than one hundred fifty feet from the jury room. The
jurors, along with other courthouse denizens, exited the courthouse in some haste.
While outside, one of the jurors spoke with an attorney, who was apparently not
involved with the case in which the juror was deliberating, concerning the difficulty
of deciding the case without access to certain books and papers. The attorney may
have indicated that the jury might ask the court for the documents. The trial judge’s
1. Technically, Armleder was an opinion of the Supreme Court Commission of Ohio, rather than of
the Supreme Court, but the decisions of the Commission are entitled to equal precedential deference.
See Section 22, Article IV, Ohio Constitution.
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January Term, 2000
decision not to set aside the jury’s verdict upon grounds of juror misconduct was
upheld, the court reasoning:
“While the conduct of the juror was clearly improper, and such as would
ordinarily call for animadversion from the court, we wholly fail to discover from
the testimony such misconduct as prevented a fair trial or an honest verdict.
“A different ruling would not operate justly. It would punish an innocent
party for no offense of his. When the juror is guilty of violating both oath and duty
by improper conduct, he should be made to answer for it, and not an innocent party,
in no way accessory to the misconduct of the juror.
“To arrest from a party a verdict, which appears to have been honestly
obtained, after long and expensive litigation, merely because a juror has been so
indiscreet as to speak of the case to a stranger, when he could have received no
advantage from that improper act of the juror, and the opposite party no prejudice,
would be scarcely compatible with the due administration of judicial justice. When,
however, the prevailing party, or his agent or friend, has approached a juror during
the trial, or while he has the case under consideration, and addressed the juror on
the subject of the action, the verdict should be set aside. He should be made, in that
way, to feel the punishment of violated law. [Citation omitted.]
“So, if it appears to the court that the unsuccessful party either did, or
probably might have sustained injury from the improper conduct of the juror, a new
trial should be granted, to the end that a verdict may be obtained, freed from
suspicion that one party has been favored, or the other prejudiced by the misconduct
of a juror. The court will seek, as far as practicable, to preserve the purity of trials
by jury, and the books show that many learned judges have thought the surest way
to attain that end is by setting aside every verdict where a juror has spoken of the
case contrary to law. This is hardly the spirit of our statute, and would fail to attain
the desired result. The juror suffers nothing by setting aside the verdict. The
successful party alone is injured; and, if innocent, should not be made to suffer.
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“Upon the whole, we think the rule that will best secure the desired result
would be, that, in cases where the irregularity or misconduct of the juror appears to
have operated in favor of the successful party, and as a necessary consequence, to
the prejudice of the unsuccessful party, a new trial should be granted. On the other
hand, where it appears that it has produced no such result, the verdict should be
permitted to stand.” Armleder v. Lieberman, supra, at 83-84.
{¶ 19} I commend this reasoning to trial judges today confronted with
similar juror misconduct or irregularity. Litigation today is no less expensive in
time and money than it was in 1877, when Armleder was decided. If the misconduct
or irregularity is not the fault of the prevailing party, and if it does not appear likely
that the verdict was influenced by the misconduct or irregularity, a trial judge, in
the sound exercise of discretion, should ordinarily not declare a mistrial, but should
accept the verdict, and render judgment accordingly.
{¶ 20} In the case before us, however, I cannot say that Judge Walker
abused his discretion in declaring a mistrial, in view of the fact that counsel for both
parties had expressed an opinion that the validity of the verdict had been brought
into question by the presence of the alternate juror in the jury room during
deliberations. Although counsel for Rist thereafter, but before the verdict was
known to him, expressed a desire that inquiry be made of the regular jurors
concerning the effect that the presence of the alternate juror may have had upon
their deliberations, in my view the trial judge was within his discretion in rejecting
this proposal because of the invasion of the privacy of the jury’s deliberations that
would necessarily have resulted from the proposed inquiry.
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COOK, J., dissenting.
{¶ 21} I respectfully dissent from the majority’s decision. I agree instead
with the court of appeals’ view that the trial court abused its discretion when it sua
sponte declared a mistrial in this case.
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January Term, 2000
{¶ 22} Like Judge Fain, I find this court’s reasoning in Armleder to be
“remarkably applicable” even today. But Armleder imposes a duty on the trial
judge to “seek, as far as practicable, to preserve the purity of trials by jury” by
assessing whether the irregularity prejudiced the unsuccessful party, or whether—
as in Armleder—it “produced no such result.” (Emphasis added.) Armleder v.
Lieberman (1877), 33 Ohio St. 77, 84; see, also, State v. Hipkins (1982),
69 Ohio
St.2d 80, 83,
23 O.O.3d 123, 125,
430 N.E.2d 943, 946 (A trial court should not
reverse a verdict on the basis of juror misconduct absent prejudice to the
complaining party.).
{¶ 23} If the trial court here had made the assessment that Armleder and our
more recent cases describe, I would be less inclined to find an abuse of discretion,
regardless of the trial court’s ultimate conclusion. But after learning that Brownell
was in the jury room during deliberations, the trial judge told counsel, “I hate to say
this, but I think we’ve got a mistrial.” Then, without any evidence of prejudicial
effect—and without a motion from either party—the trial judge declared, “I will
read the verdict and then I will poll the jury, and then I’m going to have to declare
a mistrial. … I don’t have any option.”
{¶ 24} To the trial judge, a mistrial was a foregone conclusion. This
violates the letter and spirit of our law, which “seeks, as far as practicable, to
preserve” verdicts by requiring a meaningful investigation into prejudice.
Armleder, supra. “[W]here the trial court completely misconstrues the letter and
spirit of the law, it is clear that the court has been unreasonable and has abused its
discretion.” Warner v. Waste Mgt., Inc. (1988), 36 Ohio St.3d 91, 99,
521 N.E.2d
1091, 1098-1099, fn. 10, citing Ojalvo v. Bd. of Trustees of Ohio State Univ. (1984),
12 Ohio St.3d 230, 232-233, 12 OBR 313, 315,
466 N.E.2d 875, 877.
{¶ 25} Judge Fain concludes that the trial court’s error, if any, was the result
of an “implicit invitation” from counsel for both parties. But I would not apply the
doctrine of invited error here. Invited error is a branch of the waiver doctrine that
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estops a party from seeking to profit from an error that the party invited or induced.
See State ex rel. Fowler v. Smith (1994), 68 Ohio St.3d 357, 359,
626 N.E.2d 950,
952.
{¶ 26} Here, neither party invited or induced the trial court’s error. Neither
the plaintiff nor the defendant actually moved for a mistrial prior to the trial court’s
sua sponte declaration of a mistrial. An implicit invitation should not estop Dr.
Rist from arguing, as he did successfully at the court of appeals, that the trial court
abused its discretion by sua sponte declaring a mistrial without any evidence of
prejudice. See Mary M. v. Los Angeles (1991), 54 Cal.3d 202, 212-213,
285
Cal.Rptr. 99, 104,
814 P.2d 1341, 1346; Horsemen’s Benevolent & Protective Assn.
v. Valley Racing Assn. (1992),
4 Cal.App.4th 1538, 1555,
6 Cal.Rptr.2d 698, 708
(“no estoppel results from acts of the appellant which are defensive or
precautionary”).
{¶ 27} I would affirm the judgment of the court of appeals.
LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.
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