Opinion

State v. Gunnell

132 Ohio St. 3d 442
2012 Ohio 3236

Court: Ohio Supreme Court
Filed: Jul 19, 2012
Status: Published
On the bench: O'Connor, Pfeifer, Lanzinger, Brown, Stratton, O'Donnell, Cupp
Cited by: 41 cases
Authority: More cited than 32.1%

“[W]hen a trial court learns of possible improprieties that might affect the impartiality of a juror, the court has a duty to hold -16- Case No. 2-21-06 a hearing to determine whether any bias has been introduced into the jury room.”

How later courts described this case

“[W]hen a trial court learns of possible improprieties that might affect the impartiality of a juror, the court has a duty to hold -16- Case No. 2-21-06 a hearing to determine whether any bias has been introduced into the jury room.”

Written by the judges who cited it.

The opinion

[Cite as State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236.]

THE STATE OF OHIO, APPELLANT, v. GUNNELL, APPELLEE.

[Cite as State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236.]

Trials—Criminal law—Double jeopardy—Mistrial—Juror misconduct—

“Manifest necessity” warranting mistrial—Declaration of mistrial

improper when court assumes juror has been infected with bias without

inquiring of juror whether bias actually exists and whether bias could be

cured—Double jeopardy bars retrial when mistrial declared without

manifest necessity therefor.

(No. 2010-1636—Submitted October 19, 2011—Decided July 19, 2012.)

APPEAL from the Court of Appeals for Clark County, No. 09-CA-0013,

2010-Ohio-4415.

__________________

O’CONNOR, C.J.

{¶ 1} This case has been litigated on three separate occasions and, after

each conviction, the Second District Court of Appeals has found reversible error.

Most recently, the appellate court concluded that jeopardy had attached and that

the guilty verdicts must be reversed. We are compelled to agree.

{¶ 2} For the reasons that follow, we hold that the trial judge erred

during the second trial by improperly declaring a mistrial and that the Double

Jeopardy Clause bars the retrial of the appellee, Toneisha Gunnell. Accordingly,

the judgment of the court of appeals is affirmed to the extent it held that the

Double Jeopardy Clause bars retrial.

RELEVANT BACKGROUND

{¶ 3} On June 7, 2005, Toneisha Gunnell, Mahogany Patterson, Alicia

McAlmont, and Renada Manns drove to the Upper Valley Mall in Springfield,

Ohio, to steal clothing. Chris Clarkson, a loss-prevention agent employed by

SUPREME COURT OF OHIO

Macy’s department store, watched as Gunnell, McAlmont, and Patterson grabbed

clothing from the racks and ran from the store to a waiting car driven by Manns.

Although Clarkson chased them, Manns accelerated rapidly as they got into the

car.

{¶ 4} John Deselem, a customer who witnessed the incident, stood in the

lane of travel as the car sped toward him, waving his arms in an effort to stop the

oncoming vehicle. It struck him without slowing down. The force of the impact

sent him into the windshield and threw him over the car and onto the ground. He

died at the scene from blunt-force injuries to his head. Although the impact had

cracked the windshield, Manns drove out of the mall parking lot.

{¶ 5} The Clark County Sheriff’s Department located the car abandoned

in a ditch a short distance from the mall, recovered the stolen clothing, and began

efforts to apprehend the women. The next day, Gunnell, Patterson, McAlmont,

and Manns turned themselves in to Columbus police.

{¶ 6} A Clark County grand jury indicted them on counts of murder,

aggravated robbery, involuntary manslaughter, and theft, and, following a joint

trial, a jury found each of them guilty of all charges.

{¶ 7} After the appellees were indicted for murder, aggravated robbery,

involuntary manslaughter, and theft, their initial convictions were reversed due to

a Batson violation. State v. Manns, 169 Ohio App.3d 687, 2006-Ohio-5802, 864

N.E.2d 657 (2d Dist.); State v. McAlmont, 2d Dist. No. 2005 CA 130, 2006-Ohio-

6838; State v. Patterson, 2d Dist. No. 05CA0128, 2007-Ohio-29; State v. Gunnell,

2d Dist. No. 2005 CA 119, 2007-Ohio-2353.

{¶ 8} On retrial, the case was submitted to the jury on October 1, 2007.

During deliberations later that night, the jury asked the court to define the word

“perverse” as it had been used in the jury instruction relating to the recklessness

element of the aggravated-robbery charge. The court did not respond to the jury’s

request. The jury eventually retired at 12:22 in the morning of October 2, 2007.

January Term, 2012

Later that morning, when Juror No. 6 returned to court, she brought two pieces of

paper, which were intercepted by the bailiff and shared with the court.

{¶ 9} The first piece of paper contained the following handwritten

definition of the word perverse: “contrary to the manner or direction of the judge

on a point of law <perverse verdict>.”

{¶ 10} The second piece of paper was a printout, which read:

Manslaughter: Involuntary

Involuntary manslaughter usually refers to an unintentional

killing that results from recklessness or criminal negligence, or

from an unlawful act that is a misdemeanor or low-level felony

(such as DUI). The usual distinction from voluntary manslaughter

is that involuntary manslaughter (sometimes called “criminally

negligent homicide”) is a crime in which the victim’s death is

unintended.

For example, Dan comes home to find his wife in bed with

Victor. Distraught, Dan heads to a local bar to drown his sorrows.

After having five drinks, Dan jumps into his car and drives down

the street at twice the posted speed limit, accidentally hitting and

killing a pedestrian.

(Underlining sic.)

{¶ 11} In response to the juror’s possession of this information, the trial

judge held a hearing, which began at 10:41 on the morning of October 2, 2007.

At the start of the hearing, the parties were informed of the issue that had

developed with Juror No. 6 and her outside research. The parties agreed that

Crim.R. 24 prevented the court from seating an alternate juror because the jury

SUPREME COURT OF OHIO

had commenced deliberations. Subsequently, Juror No. 6 was brought before the

court and parties, and the following exchange took place:

THE COURT: It’s come to our attention that you brought

some items in with you this morning. One appears to be a

handwritten definition of the term “perverse,” and another one

appears to be something that maybe you printed off of the internet

that—

JUROR NO. 6: Yes, I did.

THE COURT: A definition or instruction on “involuntary

manslaughter.” That’s—these are things you brought in with you

today?

JUROR NO. 6: That nobody saw them.

THE COURT: You’re the only one that saw them?

JUROR NO. 6: I told her that I didn’t know we weren’t

allowed. I’m sorry.

THE COURT: Okay. Did you—

JUROR NO. 6: And I didn’t talk about it.

THE COURT: All right. Apparently you were doing some

research last night or this morning on the internet or—

JUROR NO. 6: I just wanted to see—everybody kept

asking what the word “perverse” was, and I just wanted to look it

up for myself to see exactly what it meant.

THE COURT: Sure. Okay. What about the—what about

the manslaughter issue? Was there something you were doing on

the computer with respect to that?

January Term, 2012

JUROR NO. 6: No. It was just something I wanted—that

was for me. I wasn’t going to show them that. I had the other—I

had the definition. That was all that I was going to share.

THE COURT: Was there—was there something

inadequate or something wrong with the Court’s instruction for

“involuntary manslaughter” that you felt like you needed to

supplement the instruction or what—was there something that

wasn’t clear about the Court’s instruction on that?

JUROR NO. 6: No. I was—I was at home. I was on the

computer, and I just—I did not get much sleep last night, and I

just—that was mainly for myself. I just wanted to have it clear in

my own head.

THE COURT: Okay. Okay. Counsel have any questions

for this particular juror?

MR. SCHUMAKER: None from the State, Your Honor.

MR. REED: No, Your Honor. Thank you.

MR. KAVANAGH: No, Your Honor.

MS. CUSHMAN: No.

MR. GRIFFIN: No, Your Honor.

THE COURT: All right. Thank you, [Juror No. 6].

(Emphasis added.)

{¶ 12} The juror was excused and returned to the jury room, and then

counsel shared their recommendations as to the proper remedy with the court.

{¶ 13} After initially suggesting a preference for a mistrial, the state

asserted that Juror No. 6 “would have to be strongly instructed and be able to

assure us that she would not use that and particularly that example.” Counsel for

all defendants agreed that a curative instruction would be an appropriate response.

SUPREME COURT OF OHIO

After listening to these recommendations and the apparent agreement of defense

counsel that inquiring of the jury and giving a rehabilitative instruction would be

a reasonable remedy, the court nevertheless stated:

So I guess my point is: We can bring her in, and we can all

ask her and try to rehabilitate her; and I’m sure she’s going to say

all the right things because, again, I think she’s a nice person.

And she’s going to want to try to be accommodating and pleasing,

and I know or I’m certain she doesn’t want to be responsible for a

mistrial.

So she’s going to try to appease us and say what she needs

to say; but, you know, I just—I feel like that may be an exercise of

futility. I don’t know that I can be convinced that she’s going to be

able to put this out of her mind.

(Emphasis added.)

{¶ 14} The court recessed for a short break at 11:08 A.M. So, within the

span of a hearing that lasted less than one half of an hour, the trial judge in this

case (1) informed the parties about Juror No. 6’s research into critical legal terms,

(2) discussed with counsel the possibility of seating an alternate juror, ultimately

rejecting that solution after all parties agreed that Crim.R. 24 prevented that

solution, (3) brought Juror No. 6 into the courtroom to inquire generally about

what information she had found and why she had looked for it, but without asking

her a single question about the prejudice or bias, if any, created by the improper

information or about her ability to disregard it, (4) returned Juror No. 6 to the jury

room, and (5) asked counsel for their opinions as to how to proceed, with defense

counsel unanimously recommending a curative instruction.

January Term, 2012

{¶ 15} When the hearing resumed at 11:30, the state, having heard the

judge, promptly moved for a mistrial. Over defense counsel's unanimous

opposition and renewed argument for a curative instruction, and without

examining the juror about the degree of her prejudice, if any, the trial judge

declared that the juror had been “irreparably tainted” and that there was “no

other option than to sustain the State’s motion.” (Emphasis added.)

{¶ 16} A second short recess was taken at 11:41 A.M. The proceedings

resumed at 11:45, and the court informed the jury that a mistrial had been

declared.

{¶ 17} While addressing the jury, the judge stated, “It’s simply that a juror

was exposed to some bad information; and it’s very difficult, if not impossible, to

block that out.” When the judge finished his explanation, some of the jurors had

questions. The following exchange occurred:

JUROR NO. 9: So why couldn’t you have just told us [that

the definition of involuntary manslaughter brought in by Juror No.

6 was wrong], and we could have gone on?

THE COURT: Well—

JUROR NO. 9: In Ohio that wasn’t the way it was.

THE COURT: Well, that’s a good question. Well, first of

all, 11 of you didn’t know about it.

JUROR NO. 9: True.

THE COURT: So but the one person that had been

exposed to information that getting drunk and going twice the

speed limit equals manslaughter.

JUROR NO. 9: So you couldn’t just have told her then?

THE COURT: Well, what do you think—I mean, what do

you think that would have done?

SUPREME COURT OF OHIO

JUROR NO. 9: I think she would have realized that that

wasn’t right. I mean, I would have said, “Oh, okay. That’s not

Ohio law.”

THE COURT: Well, my question back to that juror would

be, then, why are you looking at—

JUROR NO. 9: I would question on that too, yeah.

THE COURT: Why are you looking at something other

than what the Court gave you?

{¶ 18} Following the mistrial, Gunnell, Patterson, McAlmont, and Manns

moved to preclude retrial on double jeopardy grounds, asserting that there had

been no manifest necessity for a mistrial. The trial court denied that motion and

scheduled the case for retrial.

{¶ 19} Appellees petitioned the federal court for writs of habeas corpus

seeking to bar retrial on double jeopardy grounds. The district court dismissed

their petitions, concluding that the trial court’s declaration of a mistrial “was not

an unreasonable application of clearly established law as declared by the United

States Supreme Court.” Gunnell v. Rastatter, S.D. Ohio No. 3:08-CV-064, at 13

(Sept. 17, 2008). Only Manns appealed to the Sixth Circuit Court of Appeals,

which affirmed.1 Gunnell v. Rastatter, 6th Cir. No. 08-4505 (Jan. 26, 2010).

{¶ 20} The state proceeded to retry Gunnell, McAlmont, and Patterson,

and a third jury returned verdicts finding them all guilty of all charges. They

separately appealed, and the court of appeals again reversed their convictions. In

Patterson’s and Gunnell’s cases, the court held that the trial court should have

declared a mistrial because a statement of a state’s witness from a previous trial,

which had not been admitted into evidence, had inadvertently been submitted to

1. Manns subsequently resolved her case by way of a plea agreement with the state.

January Term, 2012

the jury. State v. Patterson, 188 Ohio App.3d 292, 2010-Ohio-2012, 935 N.E.2d

439, ¶ 80 (2d Dist.); State v. Gunnell, 2d Dist. No. 09-CA-0013, 2010-Ohio-4415,

¶ 51. And in Gunnell’s and McAlmont’s cases, the court held that double

jeopardy barred retrial because there had not been a manifest necessity for the

mistrial declared at the second trial.2 Gunnell at ¶ 194; State v. McAlmont, 2d

Dist. No. 09-CA-21, 2010-Ohio-5879, ¶ 2-3.

{¶ 21} We accepted the state’s discretionary appeal in Gunnell’s case to

review whether the Double Jeopardy Clause barred her retrial. 127 Ohio St.3d

1531, 2011-Ohio-376, 940 N.E.2d 985. We subsequently accepted the state’s

appeal in McAlmont’s case and held it for the decision here. 128 Ohio St.3d

1444, 2011-Ohio-1618, 944 N.E.2d 694.

{¶ 22} The state maintains that the court of appeals improperly substituted

its judgment for that of the trial court on the manifest-necessity question. It

contends that the trial court acted reasonably in declaring a mistrial because Juror

No. 6 had violated instructions not to research the law and the court doubted her

ability to obey a curative instruction. It also contends that when a juror obtains

extrajudicial information contrary to the state’s case through misconduct, the

situation is presumptively prejudicial, and the burden shifts to the defendant to

establish that the juror was not prejudiced by the outside research.

{¶ 23} Gunnell responds that the appellate court required only that the

trial court make a reasonable inquiry of the juror and further emphasizes that the

state failed to meet its heavy burden of demonstrating manifest necessity for a

mistrial. Gunnell also asserts that even when the prosecution moves for a mistrial

based on juror misconduct, it still bears the burden to demonstrate manifest

necessity for the mistrial to avoid the double jeopardy bar to a retrial.

2. After the state appealed to this court, Patterson negotiated a plea agreement, and the state

dismissed that appeal.

SUPREME COURT OF OHIO

{¶ 24} Thus, the key issue in this case is whether the trial court acted

unreasonably in addressing juror misconduct and in determining that a manifest

necessity existed for a mistrial. If so, double jeopardy is implicated and bars

retrial.

ANALYSIS

Governing Principles

{¶ 25} The Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution ensures that a state may not put a defendant in jeopardy twice

for the same offense. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23

L.Ed.2d 707 (1969). It also “affords a criminal defendant a ‘valued right to have

his trial completed by a particular tribunal.’ ” Oregon v. Kennedy, 456 U.S. 667,

671-672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), quoting Wade v. Hunter, 336

U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949). However, this

valued right to have the trial concluded by a particular tribunal is

sometimes subordinate to the public interest in affording the

prosecutor one full and fair opportunity to present his evidence to

an impartial jury. Yet in view of the importance of the right, and

the fact that it is frustrated by any mistrial, the prosecutor must

shoulder the burden of justifying the mistrial if he is to avoid the

double jeopardy bar. His burden is a heavy one. The prosecutor

must demonstrate “manifest necessity” for any mistrial declared

over the objection of the defendant.

(Footnote omitted.) Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54

L.Ed.2d 717 (1978).

{¶ 26} What constitutes a “manifest necessity” is left to the discretion of

the courts, which must “exercise a sound discretion on the subject [as] it is

January Term, 2012

impossible to define all the circumstances, which would render it proper to

interfere. To be sure, the power ought to be used with the greatest caution, under

urgent circumstances, and for very plain and obvious causes * * *.” United States

v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824).

{¶ 27} The Supreme Court cautions that the manifest-necessity standard

“abjures the application of any mechanical formula by which to judge the

propriety of declaring a mistrial in the varying and often unique situations arising

during the course of a criminal trial.” Illinois v. Somerville, 410 U.S. 458, 462, 93

S.Ct. 1066, 35 L.Ed.2d 425 (1973). In Washington, the court acknowledged that

there is a wide range of possible justifications for declaring a mistrial and that the

question of whether a manifest necessity exists is more easily answered in some

cases than in others. “At one extreme end of the spectrum are cases in which a

prosecutor requests a mistrial in order to buttress weaknesses in his evidence.

* * * The prohibition against double jeopardy as it has evolved in this country

was plainly intended to condemn this ‘abhorrent’ practice.” Id. at 507-508,

quoting State v. Garrigues, 2 N.C. 188, 189 (1795). At the opposite end of the

spectrum, a court’s decision to declare a mistrial due to a hung jury is fairly easily

viewed as justified and should be afforded a high degree of deference.

Washington at 509.

Application

{¶ 28} Although trial judges are entitled to wide latitude when

considering motions for mistrial, their discretion is not unbridled. As the Sixth

Circuit Court of Appeals recently observed in Ross v. Petro, 515 F.3d 653 (6th

Cir.2008), “[w]hen a mistrial is premised on the prejudicial impact of improper

evidence or argument, the trial judge’s evaluation of the possibility of juror bias is

entitled to ‘great deference.’ ” (Emphasis sic.) Id. at 661, quoting Washington,

434 U.S. at 514, 98 S.Ct. 824, 54 L.Ed.2d 717. Thus, when a mistrial is

predicated on juror misconduct, the trial court finding of manifest necessity will

SUPREME COURT OF OHIO

be upheld unless “instead of exercising sound discretion, [the trial judge] acted

‘irrationally or irresponsibly.’ ” Ross at 669, quoting Washington at 514.

{¶ 29} But significantly, Ross expressly states that “[n]otwithstanding this

deference, the reviewing court must be satisfied that the trial judge did not act

irrationally or irresponsibly, but exercised ‘sound discretion.’ ” (Emphasis added.)

Ross at 661, quoting Washington at 514. Thus, Ross does not vitiate meaningful

appellate review of mistrials. To the contrary, it supports the holding that a trial

judge’s determination of possible juror bias should be given great deference only

upon the appellate court’s satisfaction that the trial judge exercised sound

discretion in determining whether juror bias existed and whether it could be

cured. Ross does not hold, or even suggest, that the mere specter of bias is a

manifest necessity that warrants mistrial.

{¶ 30} In fact, quite the opposite is true. The Supreme Court clearly

teaches that hearings on the issue of a juror’s impartiality “will frequently turn

upon testimony of the juror in question” and that it is error to contend that such

evidence “is inherently suspect.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct.

940, 71 L.Ed.2d 78 (1982), fn. 7. “ ‘One 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., quoting Dennis v.

United States, 339 U.S. 162, 171, 70 S.Ct. 519, 94 L.Ed. 734 (1950).

{¶ 31} Thus, understood in full context, although a trial judge’s

determination of juror bias is entitled to great deference, it must be predicated on

the judge’s proper discretion in hearing the case. Mere supposition, surmise, and

possibility of prejudice are not sufficient. This distinction is a simple but critical

one, and one that was overlooked by the trial judge in this case. Although a trial

judge’s determination of juror bias sufficient to create the need to declare a

January Term, 2012

mistrial is a matter of discretion, the record here reveals nothing of substance

from which the judge made his determination.

{¶ 32} The inquiry of Juror No. 6 was limited and ineffective. The

questions did not unearth what bias, if any, the juror absorbed as a result of

reading the forbidden material. See State v. Durr, 58 Ohio St.3d 86, 91, 568

N.E.2d 674 (1991). And it certainly did not establish whether that bias, if any,

could be cured by further instruction from the court. “Unless an appellant

demonstrates otherwise, we should assume that the members of the jury followed

their oaths and deliberated only upon the evidence adduced at trial.” Id., citing

State v. Zuern, 32 Ohio St.3d 56, 60, 512 N.E.2d 585 (1987).

{¶ 33} We, of course, have no way of appraising Juror No. 6’s credibility.

But nothing in the record establishes that she was so “nice” that she would deny

whatever bias she might have incurred in order to be “accommodating and

pleasing,” thereby violating her oath as a juror. The transcript reveals that she

was confused about terms for which the trial judge had refused to provide

instruction and took it upon herself to educate herself about the terms—in

violation of an unequivocal instruction to not do so. The limited information

before us also suggests that she understood that it was wrong to do so and that she

had not tainted the jury with the information. Although all agree that it was error

for her to conduct outside research, it was also error for the judge to make no

more than a limited inquiry of the juror—an inquiry that merely established the

misconduct, not any prejudice from it. The judge disregarded the constitutional

commands that the court, in deciding whether a manifest necessity exists to

declare a mistrial, must act “rationally, responsibly, and deliberately.” We cannot

conclude that the trial court acted with deliberateness in this case.

{¶ 34} The trial judge expressed openly to counsel his supposition that

Juror No. 6 would “say all the right things” and “try to appease us and say what

she needs to say” because she was “nice.” His comments suggested that he had

SUPREME COURT OF OHIO

simply concluded, based on some generalized sense of the juror's pleasant

demeanor, that bringing her back for an attempt to explore the scope of any

prejudice and to cure her misconduct “may be an exercise of futility” because “I

don’t know that I can be convinced that she’s going to be able to put this out of

her mind.” No wonder that after a short recess, the judge was met with the state's

motion for a mistrial. With little reflection upon hearing the motion, the judge

declared that Juror No. 6 was “irreparably tainted” and granted the motion.

{¶ 35} The rapidity with which the events unfolded is not dispositive, of

course. But it suggests haste in reaching a conclusion rather than a conclusion

made in “the greatest caution.” Perez, 22 U.S. (9 Wheat.) at 580, 6 L.Ed. 165.

{¶ 36} Far more troubling, though, is the fact that the record is devoid of

any showing that the state shouldered its heavy burden of justifying the mistrial

by showing a manifest necessity. Washington, 434 U.S. at 505, 98 S.Ct. 824, 54

L.Ed.2d 717. In essence, the trial judge invited the state to move for mistrial

based on his apparent conclusion that there was insurmountable juror bias. And

he did so without inquiry of the juror about that bias, in the face of agreement of

all defense counsel that inquiry of the juror and a strong curative instruction might

suffice and despite our clear precedent that when a trial court learns of possible

improprieties that might affect the impartiality of a juror, the court has a duty to

hold a hearing to determine whether any bias has been introduced into the jury

room. See State v. Phillips, 74 Ohio St.3d 72, 88-89, 656 N.E.2d 643 (1995)

(court has duty to hold hearing on possible juror bias resulting from improper

outside communication).

{¶ 37} Had the judge actually inquired into the salient issue of prejudice

with the juror, he may well have acted within his discretion. But we cannot

condone the notion that a judge acts rationally, reasonably, or deliberately in

declaring a mistrial, on retrial, in a difficult criminal case without any meaningful

January Term, 2012

inquiry into the issue of juror bias. It is neither lawful nor conscionable to

predicate a mistrial on speculation alone.

{¶ 38} A mistrial declared upon the judge’s mere speculation of prejudice

is not an act of “the greatest caution.” Perez, 22 U.S. (9 Wheat.) at 580, 6 L.Ed.

165. It is a travesty. And that is exactly what is before us.

{¶ 39} The court of appeals was correct in holding that the mistrial was in

error and that the Constitution demands reversal of these convictions.

CONCLUSION

{¶ 40} The decision to declare a mistrial based on juror misconduct is a

matter within the sound discretion of the trial court and is entitled to great, but not

unlimited, deference by a reviewing court. In this case, the trial court did not

soundly exercise that discretion by inquiring of the juror to ascertain the scope of

the prejudice, if any, to the appellee before determining that the juror could not be

rehabilitated and that a mistrial was necessary. Because the record here cannot

establish that a manifest necessity existed to declare a mistrial, double jeopardy

attaches, and the Constitution commands that no further prosecution of the

appellee may occur. Accordingly, the judgment of the court of appeals is

affirmed to the extent that it held that the Double Jeopardy Clause barred retrial.

Judgment affirmed.

PFEIFER, LANZINGER, and MCGEE BROWN, JJ., concur.

LUNDBERG STRATTON, O’DONNELL, and CUPP, JJ., dissent.

__________________

LANZINGER, J., concurring.

{¶ 41} I concur in the majority opinion, but write separately to address

issues concerning the appealability of the denial of a motion to dismiss on double

jeopardy grounds, the duty of a trial judge in considering a motion for mistrial

like the one in this case, and the technological aspects present here.

SUPREME COURT OF OHIO

Initial Matters

{¶ 42} At the outset, I share the concurring appellate judge’s concern over

precedent holding that the denial of a motion to dismiss on double jeopardy

grounds is not a final, appealable order. State v. Crago, 53 Ohio St.3d 243, 559

N.E.2d 1353 (1990), syllabus. Gunnell’s first trial was in 2005, and she has been

unable to appeal the denial of her motion to dismiss on double jeopardy grounds

after the second trial, having to wait until the completion of a third trial. In

Crago, this court overruled the unanimous opinion in State v. Thomas, 61 Ohio

St.2d 254, 400 N.E.2d 897 (1980), in which we held that the overruling of a

motion to dismiss on the ground of double jeopardy is a final, appealable order

under R.C. 2953.02 and 2505.02. Id. at paragraph one of the syllabus. We stated

in Thomas:

It is clear that the Double Jeopardy Clause is a guarantee

against being twice put to trial for the same offense. Abney v.

United States (1977), 431 U.S. 651, 661, 97 S.Ct. 2034, 52

L.Ed.2d 651. It is equally clear that an order affecting a right of

constitutional dimensions is an “order affecting a substantial

right,” within the contemplation of R.C. 2505.02. It would seem

reasonable to conclude that some form of review prior to judgment

is necessary to preserve this right. Id. at page 660.

***

We believe that a proceeding on a motion to dismiss for

double jeopardy should be considered a special proceeding as well.

A claim of double jeopardy raises an issue entirely collateral to the

guilt or innocence of the defendant. While it is a complete

defense, it is more than that, for it, in principle, bars a new trial as

well as a new conviction. Additionally, an erroneous decision on a

January Term, 2012

double jeopardy claim cannot be effectively reviewed after

judgment within the second trial; by that time, the defendant’s

right has been violated.

We hold, therefore, that the overruling of a motion to

dismiss on the ground of double jeopardy is a final appealable

order under R.C. 2953.02 and 2505.02. Owens v. Campbell

[(1971)], 27 Ohio St.2d 264, 272 N.E.2d 116, is hereby overruled.

Thomas, 61 Ohio St.2d at 258.

A Shifted Burden

{¶ 43} When a defendant objects to a mistrial, as Gunnell did in this case,

the government must bear the burden of demonstrating manifest necessity for the

mistrial. Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717

(1978) (“in view of the importance of the right [of a defendant to have the trial

concluded by a particular tribunal], and the fact that it is frustrated by any

mistrial, the prosecutor must shoulder the burden of justifying the mistrial if [the

prosecutor] is to avoid the double jeopardy bar”).

{¶ 44} The decision to declare a mistrial is one of last resort, and courts

should be careful to exhaust all other alternatives before taking this extraordinary

step. Other things may be done to obviate misconduct, such as giving

supplemental jury instructions or reducing the size of the jury panel by agreement

of the parties. Furthermore, while it did not do so at the time, Crim.R. 24(G)(1)

now permits the substitution of alternate jurors in noncapital criminal cases. (See

former Crim.R. 24(G)(1), 109 Ohio St.3d CXXII, effective July 1, 2006, requiring

that an alternate juror who has not replaced a regular juror be discharged when the

jury retires to consider its verdict.)

{¶ 45} There is no evidence in the record that the jurors were given

specific warning that the Internet was off limits during the progress of the trial.

SUPREME COURT OF OHIO

While the record in this appeal does not include a transcript of the jury

instructions from the second trial, the court’s entry declaring a mistrial quotes

portions of the instructions, which are merely general, directing the jury to rely

only on testimony and evidence presented in court and to refrain from discussing

the case. Before the voir dire in this case, the court stated:

It’s also critical that if you are selected as a juror in this case and

you get to the point where you’re deliberating, that during your

deliberations * * * you only consider the evidence that’s presented

to you in the courtroom during the course of this trial. And that’s

absolutely critical in order for there to be a fair trial to both sides.

It wouldn’t be fair to either side if jurors were in the jury room

deliberating and talking about issues or facts that were not

addressed during the course of the trial. For one, they may not be

factual. They may not be facts. And two, the attorneys may or

may not be aware of those things, and, therefore, wouldn’t be able

to incorporate those things into their arguments. So it is critical

that you, from this point on, limit the information that you take in

with respect to this case to that which is presented to you in the

courtroom. And I think that you all have a pretty good

understanding and idea of the importance of—of that concept.

(Ellipsis and emphasis sic.)

{¶ 46} After the jury had been seated and opening statements had been

given, the court told the jury, “It’s absolutely critical that from this point on, the

only exposure you have to this case is from what transpires here in the

courtroom.” As part of the jury instructions, the court stated:

January Term, 2012

It is now the duty of the Court to instruct you on the law

which applies to this case. The Court and the jury have separate

functions. You decide the disputed facts and the Court gives the

instructions of law. It is your sworn duty to accept these

instructions and to apply the law as it is given to you. You may

neither change the law nor apply your own idea of what you think

the law should be.

***

It is your duty to weigh the evidence, decide the disputed

questions of fact, apply the instructions of law to your findings,

and render your verdict accordingly.

(Emphasis sic.)

{¶ 47} Based on the trial court’s entry, it appears that while the court’s

instructions clearly stated that jurors were to consider only evidence presented at

trial, the instructions were more vague regarding whether jurors were forbidden to

consult outside sources such as the Internet or new technology to assist them in

applying the court’s instructions of law to their findings of fact. Several legal

commentators have noted that juror research of this type is a great concern in this

age of new media.3 As the juror herself noted, “everybody kept asking what the

word ‘perverse’ was, and I just wanted to look it up for myself to see exactly what

it meant.”

{¶ 48} The prevalent and expanding nature of new media presents trial

courts with the challenge of instructing jurors regarding technology that has

become an everyday part of their lives. In this case, it was only after the court

3. See, e.g., Hoffmeister, Google, Gadgets, and Guilt: Juror Misconduct in the Digital Age, 83

U.Colo.L.Rev. 409, 419-425 (2012); Artigliere, Barton & Hahn, Reining in Juror Misconduct:

Practical Suggestions for Judges and Lawyers, 84 Fla.Bar J. 8-10 (Jan.2010).

SUPREME COURT OF OHIO

had decided to declare a mistrial that the trial court informed the jurors that they

were to rely only on the jury instructions and their personal knowledge to define

words:

When there’s no specific definition for a word or a term, I’m not

allowed to give you my idea of what I think it is.

If it’s not spelled out as a legal definition in the Ohio Jury

Instructions, then you’re simply to come up with an understanding

of that term. The collective body is to come up with a collective

understanding of what that term means.

{¶ 49} Based upon the information given to the jury, the trial court’s

reasoning that the juror had willfully violated the court’s order and would

continue to violate it was speculative at best.

Abuse-of-Discretion Standard

{¶ 50} According to the record, the jury had asked the court for the

definition of “perverse” during deliberations, but was not given a response. The

next morning, the juror who allegedly committed misconduct brought two items

with her to the courthouse. One was a written definition of the term “perverse”

that she intended to share with the jurors. The other was a printout containing a

hypothetical example of involuntary manslaughter, which the juror admitted she

had printed off the Internet. She told the judge that she had not discussed these

items with anyone. When the judge asked her why she felt that she needed these

materials, she responded, “I was at home. I was on the computer, and I just—I

did not get much sleep last night, and I just—that was mainly for myself. I just

wanted to have it clear in my own head.”

{¶ 51} The parties declined to question the juror and initially told the

judge that a curative instruction would be sufficient.

January Term, 2012

{¶ 52} It is an abuse of discretion to make findings that are unsupported

by the record. At the very least, the court should have inquired about the juror’s

ability to put aside the improper information and should have questioned the other

jurors to see if they were affected by the improper information. As the situation

in the third trial showed, more can and should be done. In the third trial during

deliberations, the jurors had examined an exhibit that should not have been given

to them. Defense counsel moved for a mistrial. The court examined the jurors

individually to determine whether they were capable of continuing fair and

unbiased deliberations despite the fact that they had all seen the inadvertently

included exhibit. When the questioning was completed, and every juror stated

that he or she could disregard the exhibit and resume impartial deliberations, the

court allowed deliberations to continue on the basis that this situation was

“significantly different” from the situation involving the juror in the second trial.

The court noted that “the difference here is that I have the utmost confidence in

this jury and their ability to follow instructions.” The court determined this based

upon having questioned the jurors and evaluated “their appearance, their

demeanor, the manner in which they were responding to my questions[,] [t]he

reasonableness of their responses, their attentiveness, their frankness, * * * their

intelligence, their comprehension of the situation, together with all the facts and

circumstances surrounding the case.” It is of concern that the trial court would go

to such great lengths to determine whether deliberations should continue in the

third trial, but failed to even question the juror in the second trial regarding her

ability to continue deliberations.

{¶ 53} We have noted that “[i]n cases involving outside influences on

jurors, trial courts are granted broad discretion in dealing with the contact and

determining whether to declare a mistrial or to replace an affected juror.” State v.

Phillips, 74 Ohio St.3d 72, 89, 656 N.E.2d 643 (1995). However, we have also

held that “[w]hen a trial court learns of an improper outside communication with

SUPREME COURT OF OHIO

a juror, it must hold a hearing to determine whether the communication biased the

juror.” Id. at 88. Similarly, when a trial court learns that a juror has improperly

reviewed outside information, the court has a duty to hold a hearing to determine

whether the juror has become biased. The trial court abused its discretion in

declaring a mistrial in the second trial without conducting a hearing with the juror

on the question of bias and further examining the other jurors.

{¶ 54} Mindful that “manifest necessity” is a standard that cannot be

applied mechanically or without attention to the particular problem confronting

the trial judge, Arizona v. Washington, 434 U.S. at 506, 98 S.Ct. 824, 54 L.Ed.2d

717, I concur that the state did not meet the heavy burden of demonstrating

manifest necessity for a mistrial in the second trial.

__________________

MCGEE BROWN, J., concurring.

{¶ 55} I concur with Justice Lanzinger on the need to review our decision

in State v. Crago, 53 Ohio St.3d 243, 559 N.E.2d 1353 (1990), on whether the

overruling of a motion to dismiss on double jeopardy grounds is a final,

appealable order.

__________________

O’DONNELL, J., dissenting.

{¶ 56} Respectfully, I dissent.

{¶ 57} This murder case has been litigated on three separate occasions.

The first resulted in a reversal due to a Batson issue. The second resulted in a

mistrial, based on juror misconduct. This appeal is from the third trial, which

resulted in guilty verdicts, but which the Second District Court of Appeals

reversed on double jeopardy grounds. The matter at issue before our court is

whether the trial court properly granted a mistrial based on juror misconduct

during jury deliberations in the second trial. In my view, the trial court properly

declared a mistrial due to the misconduct of Juror No. 6, who conducted

January Term, 2012

independent Internet research contrary to and in disregard of the court’s

instructions. In my view, double jeopardy principles do not preclude retrial in this

case. The trial court here, in the exercise of its discretion, found that a manifest

necessity existed to declare a mistrial. Moreover, in a separate proceeding, the

United States district court denied writs of habeas corpus seeking to bar retrial on

double jeopardy grounds, finding that the mistrial declaration “was not an

unreasonable application” of United States Supreme Court law, and that

determination was affirmed by the Sixth Circuit Court of Appeals.

{¶ 58} This court ought not substitute its judgment for that of the trial

court, as upheld by the federal district court and the federal circuit court of

appeals. In my view, the intermediate state appellate court misapplied the

manifest necessity standard and substituted its judgment for that of the trial court,

and I would reverse its judgment and remand the matter for retrial.

Facts and Procedural History

{¶ 59} The material facts of this senseless homicide case are not disputed.

Toneisha Gunnell, Mahogany Patterson, Alicia McAlmont, and Renada Manns

conspired to steal clothes from stores at the Upper Valley Mall in Springfield,

Ohio. After stealing armloads of clothes from Macy’s Department Store,

Patterson, Gunnell, and McAlmont ran toward a waiting getaway car operated by

Manns. A store security guard pursued them, but as they got into the car, Manns

sped off to avoid apprehension.

{¶ 60} As the getaway car was speeding away, John Deselem, a mall

patron, was walking across the parking lot and apparently had seen the security

guard chase the fleeing vehicle. He stopped, faced the oncoming vehicle, and

waved his arms in an apparent effort to stop it. Without slowing, the vehicle

struck Deselem. The force of the impact propelled Deselem into the windshield,

over the vehicle, and onto the asphalt, where Deselem died from blunt injuries to

his head. After hitting Deselem, the vehicle sped off. A short time later police

SUPREME COURT OF OHIO

discovered it abandoned not far from the mall. Gunnell, Patterson, McAlmont,

and Manns surrendered to Columbus police the following day.

{¶ 61} A Clark County grand jury indicted Gunnell, Patterson,

McAlmont, and Manns on counts of murder, aggravated robbery, involuntary

manslaughter, and theft. A joint trial was held in which a jury found them all

guilty of all charges. Each separately appealed. The appellate court reversed

their convictions based on a Batson violation. State v. Manns, 169 Ohio App.3d

687, 2006-Ohio-5802, 864 N.E.2d 657 (2d Dist.); State v. McAlmont, 2d Dist. No.

2005 CA 130, 2006-Ohio-6838; State v. Patterson, 2d Dist. No. 05CA0128,

2007-Ohio-29; State v. Gunnell, 2d Dist. No. 2005 CA 119, 2007-Ohio-2353. See

generally Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

{¶ 62} Gunnell, Manns, McAlmont, and Patterson were tried a second

time before a jury. Before the second trial began, the trial court addressed

prospective jurors: