[Cite as State v. Fowler,
2016-Ohio-5867.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2015-CA-95
:
v. : T.C. NO. 15CR97
:
LUCAS FOWLER : (Criminal appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the ___16th___ day of _____September_____, 2016.
...........
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
MARK J. BAMBERGER, Atty. Reg. No. 0082053, 140 E. Broadway Avenue, Tipp City,
Ohio 45371
Attorney for Defendant-Appellant
.............
DONOVAN, P.J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Lucas Fowler, filed
October 21, 2015. Fowler was found guilty after an October 6-8, 2015 jury trial on one
count of involuntary manslaughter, in violation of R.C. 2903.04(A), a felony of the first
degree, as well as one count of trafficking in heroin, in violation of R.C. 2925.03(A)(1), a
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felony of the fifth degree. The record reflects that Fowler sold heroin to the victim herein,
B.J. Quickle, who subsequently died of acute heroin intoxication. Fowler was sentenced
to 10 years for the involuntary manslaughter offense and one year for the trafficking
offense, to be served concurrently.
{¶ 2} Folwer was indicted on March 2, 2015. The record reflects that Fowler was
initially tried on September 15-16, 2015, and that the proceeding ended in a mistrial on
Fowler’s motion after the jury heard testimony that Fowler had previously served time in
prison. On September 25, 2015, Fowler filed a motion to change the venue of the second
trial due to “adverse and pervasive pre-trial publicity.” On October 2, 2015, the trial court
issued an entry that provides that Fowler’s “motion for a change of venue will be held in
abeyance pending jury selection on October 6, 2015.”
{¶ 3} Fowler asserts four assignments of error herein. His first assigned error is
as follows:
THE TRIAL COURT ERRED IN DEALING IMPROPERLY WITH
POTENTIAL JUROR MISCONDUCT.
{¶ 4} We initially note that at the start of the State’s voir dire, the following
exchange occurred:
MR. WILSON: Thank you Your Honor. Can you follow the law? I
mean, that’s going to be the crux of the questioning that you get. As the
twelve of you sit here, I want to start with, can you follow the law as
instructed by the Judge. If he tells you that you have to do something, you
have to accept a certain definition and accept a certain rule, can you do
that? [Emphasis added]. Can everybody agree to that as you sit here?
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(Jurors respond affirmatively.)
MR. WILSON: I started with that question because that’s the first
thing that I wanted you to hear from the State of Ohio because it’s incredibly
important. Really it is the basis of your duty as a juror to follow the law as
instructed by the Judge. If anybody is going to have a problem with that,
then we need to know that on the front.
…
{¶ 5} Fowler directs our attention to the following exchange that occurred after the
State rested and the defense indicated that it did not intend to present any evidence:
THE COURT: … I did want to disclose something to counsel.
When I came back from lunch, the court’s bailiff informed me that Juror # 6
… had come to her over the lunch hour and he had indicated that this
morning he was sitting in the jury room drinking a cup of coffee, and he
heard one of the other jurors who apparently was behind him standing - -he
recognized it as being a female and I believe there is only two women on
our jury.
He recognized it as a women’s [sic] voice, but he didn’t identify the
person. But apparently he overheard her telling another juror, and I don’t
know if that other juror was also a woman or a man, I’m not sure, that she
had looked up a definition of involuntary manslaughter on the hearing [sic].
And at that point the other person said something along the lines of,
“Oh, what was it?” And apparently she just responded, “Oh, it’s a doozy.”
I don’t know what that means, and that was the extent of it. He let the court’s
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bailiff know that. I don’t think there was any other conversation.
The Court is open to suggestions as to how we should handle it. I
think there are a couple options. One would be for the Court to take no
specific action but to emphasize when it’s reading its instructions that the
instructions the Court gives is the law of the case, and that he jurors are to
follow that law, no other law, whether that be a preconceived notion of what
they believe the law is or some other law that they may have seen. I could
do that. We could bring the two female jurors in and figure out which one
did look that definition up on the internet, and we could inquire.
I am open to suggestions. I am leaning towards simply emphasizing
to the jurors when I give instructions that they are to follow the law as given
to them by this Court, and I would think that that would suffice, but I am
willing to consider other options.
…
MR. WILSON: Your Honor, I believe that the option number one is
probably the best, that you just emphasize that all the law comes from the
Court and the Court’s instructions of law. That any preconceived notions
that they have about what the law may be have to be put aside and to take
all their instructions from you and that no research should be done on what
the law is because you’re going to give them the law.
THE COURT: Just for the record, I typically when I admonish jurors,
I’m confident that I told them they had to render their verdict in this case
based only on what transpires in this courtroom. I’m confident on that. I
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immediately go on to explain that they shouldn’t do any independent
investigation such as getting on line, looking up definitions or looking for
reports. I’m pretty sure I did not say that specifically in this case. But I
think the general admonition that their verdict be based only on what
transpires in the courtroom was sufficient enough that the jurors should
have known not do to that.
Do you have a suggestion, Miss Richards, how the Court should
handle this matter?
MS. RICHARDS: Your Honor, I’m gonna admit to you that I’m just
overwhelmed at this point again because my concern is based on the
information that this trial court has disclosed is who else was in the jury
room besides the gentleman that - - he wasn’t looking. From the way the
Court disclosed the information, Juror #6 just heard a female voice behind
him.
I’m not sure I understand how many other people were in the room
and heard that, and what I’m concerned about is how much other
information did this female juror look up on line. That’s my concern.
And if she blurts out in that one instance, and this gentleman was
brave enough to come forward and disclose it to Mrs. Gibson, then what
would happen, I mean, if she had blurred [sic] other things out to other
people. Is there some way we can do just a small brief, distinct inquiry to
this - - these two female jurors to find out if one or the other has blurbed
[sic] out any other information or looked up any other information?
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THE COURT: Well, the Court is of the opinion that the alleged juror
misconduct is limited to what the person told the Court’s bailiff. I am not
willing to launch an investigation into things that are not before the Court.
[Emphasis added].
So upon consideration of all the facts and circumstances, the court
is going to emphasize at the beginning of its instructions that the jury must
accept the instruction as given to them by the Court.
They must apply the law as it is given to them and that they may
neither change the law nor apply their own idea of what they think the law
should be, whether that stems from a preconceived notion or something
they may have heard or read, so the Court is going to handle it that way.
There is no evidence before the Court that any other alleged
misconduct occurred. So we can bring the jurors in.
{¶ 6} Fowler asserts that there “is no sign in the transcripts that the court took the
necessary steps to adequately investigate potential jury bias and misconduct.” We
agree.
{¶ 7} As this Court has previously noted, any “independent inquiry by a juror about
the evidence or the law violates the juror’s duty to limit his considerations to the evidence,
arguments, and law presented in open court, and such activity is juror misconduct. … .”
State v. Gunnell, 2d Dist. Clark No. 09-CA-0013, 2010-Ohio-4415, ¶ 76. This Court has
further noted as follows:
When possible jury misconduct is brought to the attention of the trial
judge, the court has a duty to investigate the matter. State v. Rudge (1998),
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89 Ohio App.3d 429, 442,
624 N.E.2d 1069. Because the trial judge is in
the best position to determine the nature and extent of alleged jury
misconduct, the court's decision on the scope of the proceedings necessary
to discover misconduct in each case is reviewed only for an abuse of
discretion. United States v. Shackleford (1985), 777 F.2d 1141, 1145.
State v. Miller, 2d Dist. Montgomery No. 18011,
2000 WL 1369918, *4 (Sept. 22, 2000).
As this Court has previously determined:
An abuse of discretion implies that the trial court's attitude was
unreasonable, arbitrary, or unconscionable. (Citation omitted.) AAAA
Enterprises, Inc. v. River Place Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161,
553 N.E.2d 597 (1990). “It is to be expected that
most instances of abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary.”
Id. “A decision is unreasonable if there is no sound reasoning process that
would support that decision.” Id.
State v. Rush, 2d Dist. Greene No. 2015-CA-54,
2016-Ohio-4895, ¶ 8.
{¶ 8} “In reviewing circumstances suggesting juror misconduct, we must employ
a two-tier analysis: (1) determine whether there was juror misconduct and (2) if juror
misconduct is found, determine whether it materially affected the defendant's substantial
rights. See State v. Taylor (1991), 73 Ohio App.3d 827, 833,
598 N.E.2d 818, 821.” State
v. Hopfer,
112 Ohio App. 3d 521, 543,
679 N.E.2d 321 (2d Dist. 1996).
{¶ 9} As this Court noted in State v. Gunnell, 2d Dist. Clark No. 09-CA-0013, 2010-
Ohio-4415, ¶ 77-88 (footnotes omitted):
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“It is well-established that ‘the party complaining about juror
misconduct must establish prejudice.’ ” State v. King, Lucas App. No. L–
08–1126, 2010–Ohio–290, at ¶ 23, quoting State v. Adams, 103 Ohio St.3d
508,
817 N.E.2d 29, 2004–Ohio–5845, ¶ 42. This requirement of prejudice
is reflected in Crim.R. 33(A)(2), which provides: “A new trial may be granted
on motion of the defendant for any of the following causes affecting
materially his substantial rights: (2) Misconduct of the jury, prosecuting
attorney, or the witnesses of the state[.]”
“[D]ue process does not require a new trial every time a juror has
been placed in a potentially compromising situation. Were that the rule, few
trials would be constitutionally acceptable. The safeguards of juror
impartiality, such as voir dire and protective instructions from the trial court,
are not infallible; it is virtually impossible to shield jurors from every contact
or influence that might theoretically affect their vote. Due process means a
jury capable and willing to decide the case solely on the evidence before it,
and a trial court ever watchful to prevent prejudicial occurrences and to
determine the effect of such occurrences when they happen. Such
determinations may properly be made at a hearing like that ordered in
Remmer [.]” Smith v. Phillips (1982), 455 U.S. 209, 217,
102 S.Ct. 940,
71
L.Ed.2d 78.
In Remmer v. United States (1954), 347 U.S. 227,
74 S.Ct. 450,
98
L.Ed.2d 654, a person told a juror during the trial that a favorable outcome
for the defendant could be potentially lucrative. The juror immediately
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informed the trial court of this communication. The judge, prosecutor, and
FBI investigated the matter and determined that the comment was said in
jest and no further action was taken. The defendant was never informed of
the contact with the juror until after he was convicted. On appeal, the United
States Supreme Court vacated the conviction and explained the importance
of a hearing to determine whether the juror was impacted by the outside
communication:
“In a criminal case, any private communication, contact, or tampering
directly or indirectly, with a juror during a trial about the matter pending
before the jury is, for obvious reasons, deemed presumptively prejudicial.
“…
“The trial court should not decide and take final action ex parte on
information such as was received in this case, but should determine the
circumstances, the impact thereof upon the juror, and whether or not it was
prejudicial, in a hearing with all interested parties permitted to participate.”
Id. at 229–30.
The Ohio Supreme Court has relied on Remmer to require the trial
court to hold a hearing in cases involving outside communications with
jurors: “When a trial court learns of an improper outside communication with
a juror, it must hold a hearing to determine whether the communication
biased the juror.” State v. Phillips, 74 Ohio St.3d 72, 88,
656 N.E.2d 643,
citing Smith v. Phillips (1982), 455 U.S. at 215–16, and Remmer. See also
State v. Stallings,
89 Ohio St.3d 280, 296,
731 N.E.2d 159, 2000–Ohio–
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164. Similarly, if juror misconduct in the form of an independent
investigation is discovered, the trial court is “required to inquire of that
particular juror to determine whether he or she remained impartial after the
independent investigation.” [State v.] Spencer, 118 Ohio App.3d at 874,
694 N.E.2d 161. See also State v. Gordon, Stark App. No. 2005CA00031,
2005–Ohio–3638, at ¶ 54, quoting State v. Gray (July 27, 2000), Cuyahoga
App. No. 76170.
The inquiry of whether the juror has been biased by the outside
information should not be left to counsel for the parties. Rather, the trial
court has the duty to protect the rights of the State and the defendant to a
fair and impartial jury. This duty is reflected in R.C. 2945.03, which provides
that: “The judge of the trial court shall control all proceedings during a
criminal trial, and shall limit the introduction of evidence and the argument
of counsel to relevant and material matters with a view to expeditious and
effective ascertainment of the truth regarding the matters in issue.”
Therefore, if an allegation arises of outside influence on the jury, the trial
court must lead the inquiry to determine whether prejudice has resulted from
the juror misconduct.
The United States Court of Appeals for the First District summarized
the trial court's duties:
“ ‘[When] a colorable claim of jury taint surfaces during jury
deliberations, the trial court has a duty to investigate the allegation
promptly.’ [U.S. v.] Bradshaw, 281 F.3d at 289 (footnote omitted); see also
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United States v. Corbin, 590 F.2d 398, 400 (1st Cir.1979). The investigation
must ‘ascertain whether some taint-producing event actually occurred,’ and
then ‘assess the magnitude of the event and the extent of any resultant
prejudice.’ Bradshaw, 281 F.3d at 289. Even if both a taint-producing event
and a significant potential for prejudice are found through the investigation,
a mistrial is still a remedy of last resort. See id . The court must first consider
‘the extent to which prophylactic measures (such as the discharge of
particular jurors or the pronouncement of curative instructions) will suffice
to alleviate prejudice.’ Id. This painstaking investigatory process protects
the defendant's constitutional right to an unbiased jury, id. at 289–90, as
well as his [‘ “]valued right to have his trial completed by a particular
tribunal,[” ’] [U.S. v.] Jorn, 400 U.S. at 484,
91 S.Ct. 547,
27 L.Ed.2d 543
(plurality opinion) (quoting Wade [v. Hunter], 336 U.S. at 689,
69 S.Ct. 834,
93 L.Ed. 974). The investigation is also critical in creating a sufficient record
to permit meaningful appellate review of the [trial] court's manifest necessity
determination.” United States v. Lara–Ramirez, (1st Cir.2008),
519 F.3d 76,
86.
When conducting the inquiry into juror misconduct and any resulting
bias or prejudice, a trial court normally will need to question the juror. The
United States Supreme Court has cautioned trial courts against
automatically dismissing the juror's credibility:
“Respondent correctly notes that determinations made in Remmer-
type hearings will frequently turn upon testimony of the juror in question, but
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errs in contending that such evidence is inherently suspect. As we said in
Dennis v. United States, 339 U.S. 162,
70 S.Ct. 519,
94 L.Ed. 734 (1950),
‘[o]ne may not know or altogether understand the imponderables which
cause one to think what he thinks, but surely one who is trying as an honest
man to live up to the sanctity of his oath is well qualified to say whether he
has an unbiased mind in a certain matter.’ Id., at 171, 70 S.Ct., at 523. See
also United States v. Reid, 12 How. 361, 366,
13 L.Ed. 1023 (1852).” Smith
v. Phillips, 455 U.S. at 217 n. 7.
{¶ 10} This Court’s summary of State v. Gunnell, 132 Ohio St.3d 442, 2012–Ohio–
3236,
973 N.E.2d 243, in State v. Zaragoza, 2d Dist. Montgomery No. 26706, 2016-Ohio-
144, ¶ 46-47, is further instructive:
In Gunnell, the Supreme Court considered whether a juror's outside
research, i.e., a handwritten definition of the word “perverse” and an
instruction on “involuntary manslaughter” that the juror had printed off the
internet, constituted grounds for a mistrial. Id. at ¶ 9–10,
973 N.E.2d 243.
After learning of the juror's possession of this information, the trial court
conducted a brief hearing during which the court informed the parties of the
issue that had developed regarding the juror's outside research and then
proceeded to question the juror regarding her research, including what
information she had found, why she had looked for it, and whether she had
shared that information with any other jurors. Id . at ¶ 11, 973 N.E.2d 243.
The trial court did not, however, question the juror to determine whether any
prejudice or bias was created by the information or whether the juror could
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disregard it. Id. at ¶ 14, 32, 973 N.E.2d 243. Nevertheless, the trial court
found that the juror was “irreparably tainted” and declared a mistrial. Id. at
¶ 34, 973 N.E.2d 243.
The Supreme Court held that the trial court in Gunnell “did not
soundly exercise [its] discretion” in declaring a mistrial because the trial
court conducted a limited inquiry of the juror and failed to ascertain whether
the materials viewed by the juror caused the juror to be biased or prejudiced
against the defendant. Id. at ¶ 33–40,
973 N.E.2d 243.
{¶ 11} In State v. Hubbard, 8th Dist. Cuyahoga No. 92033, 2009-Ohio-5817, ¶ 15-
18, the Eighth District considered appellant’s assertion that the trial court erred in denying
his motion for a mistrial based upon a juror’s independent investigation with binoculars,
to determine how far she could see, as follows:
In support of his argument that Juror No. 9's misconduct was
prejudicial, appellant relies on this court's opinion in State v. Spencer, [118
Ohio App.3d 871,
694 N.E.2d 161(8th Dist. 1997)]. In that case, one juror
notified the other 11 jurors that he had contacted a number of physicians
over the weekend about prescribing methadone, an issue in the case. Id. at
162. The trial court learned of this misconduct and held a hearing to
determine the effect of the juror's statement on the deliberations. Id. The
trial court failed to individually question the jurors about any influence this
may have had upon them, and instead, issued a stern warning about using
any outside information in its deliberations. Id.
In Spencer, we reversed the trial court's denial of the defendant's
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motion for a mistrial. Id. at 163. While we acknowledged that the trial court
appropriately attempted to remedy the misconduct by issuing curative
instructions and conducting a hearing, we found fault with the manner in
which the court performed this task.
Id. at 162-163. We determined that
“[t]he trial court was required to inquire of that particular juror to determine
whether he or she remained impartial after the independent investigation.”
Id. at 163. Without doing so, we were unable to conclude that the curative
instructions overcame any prejudice and that the defendant in that case
received the benefit of 12 impartial jurors.
Id.
This case, however, is quite different from that presented in Spencer.
In this case, the trial court followed the parameters established in Spencer,
in determining the impact of the juror misconduct and attempting to cure
said actions. First, unlike the situation in Spencer, the trial court interviewed
Juror No. 9 outside the presence of the other jurors. The court inquired in
depth into the exact actions taken by the juror and whether she was
influenced by her actions. She responded that she had not. He then inquired
whether she would be able to set aside her findings and deliberate solely
on the evidence introduced at trial. Juror No. 9 repeatedly responded that
she was able to do so. Finding Juror No. 9 unpersuaded by the independent
investigation, the court then performed a voir dire of the remaining jurors in
the absence of Juror No. 9. Each of the 11 remaining jurors independently
affirmed that they would be able continue deliberations without “taking into
account the information that was brought in extraneously by juror number
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nine and continue deliberating this case to the best of [their] ability ….” …
*
Given the record and representations made by each of the jurors, we
conclude that the trial court did not abuse its discretion in denying a motion
for mistrial on this ground. The record fails to demonstrate any influence
that would improperly affect the jurors' fairness and impartiality when they
returned to deliberations.
{¶ 12} Here, the trial court’s bailiff reported to the court that a male juror reported
the misconduct of a female juror, namely that an unidentified female juror had conducted
independent research as to the applicable definition of involuntary manslaughter. It was
reported that the juror shared this with another juror. We note also that the trial court
admitted to counsel that he failed to provide the standard, essential, preliminary
instructions regarding independent research at the start of trial. Ohio Jury Instructions,
CR Section 401.09 (Rev. Feb. 20, 2010), provides in part as follows:
1. REQUIRED ADMONITION. It is important that you be fair and
attentive throughout trial. Do not discuss this case among yourselves or
with anyone else. ….
…
4. REPORT VIOLATION. … You must also not talk with anyone else
about this case during the trial. If anyone should attempt to discuss the
case with you, report the incident to me or to the bailiff immediately.
5. WARNING. Do not investigate or attempt to obtain additional
information about this case from any source outside the courtroom. …
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{¶ 13} Upon the report of the misconduct, defense counsel requested that the court
investigate the allegation by conducting a brief voir dire of at least the two female jurors
on the panel to determine the scope of the juror misconduct and whether Fowler’s
substantial rights were affected thereby. While the law is clear that the investigation of
whether a juror has been influenced by outside information should not be left to counsel
for the parties, the trial court refused to perform the duty mandated by Remmer and R.C.
2945.03, namely to immediately conduct a hearing, with the participation of all parties, to
question the jurors and determine the scope of the independent research and its impact
upon the juror who performed it, as well as its impact upon any other affected jurors.
While the record reflects that the court instructed the jury to follow the law as provided by
the court prior to deliberations, curative instructions alone are insufficient to ensure that
Fowler was tried by an impartial jury. Since the court failed to employ the analysis set
forth in Hopfer, namely to determine whether the juror misconduct affected Fowler’s
substantial rights, we conclude that an abuse of discretion is demonstrated. Accordingly,
Fowler’s first assignment of error is sustained.
{¶ 14} Having sustained Fowler’s first assignment of error, analysis of the
remaining assignments of error is not required. The judgment of conviction is reversed
and this matter is remanded to the trial court for further proceedings.
..........
FAIN, J. and WELBAUM, J., concur.
Copies mailed to:
Megan M. Farley
Mark J. Bamberger
Hon. Douglas M. Rastatter
