recognizing that “[i]f sufficient untainted evidence is present in the warrant affidavit to establish probable cause, the warrant is valid”
How later courts described this case
- recognizing that “[i]f sufficient untainted evidence is present in the warrant affidavit to establish probable cause, the warrant is valid”
- concluding that it was not reversible error for the trial court to admit a show-up identification that took place “several hours” after the crime
- “after excising tainted information from a supporting affidavit, ‘if sufficient untainted evidence was presented in the warrant affidavit to establish probable cause, the warrant was nevertheless valid’”
Written by the judges who cited it.
The opinion
Pfeifer, J.,
concurring in part and dissenting in part.
{¶ 144} As I stated in State v. Murphy (2001), 91 Ohio St.3d 516, 564 , 747 N.E.2d 765 (Pfeifer, J., dissenting), “allowing alternate jurors to be present during jury deliberations violate[s] the sanctity of the jury process. See United States v. Virginia Erection Corp. (C.A.4, 1964), 335 F.2d 868, 872 ; Koch v. Rist (2000), 89 Ohio St.3d 250, 252 , 730 N.E.2d 963 , 965.” As the lead opinion explains, the juror misconduct that occurred during the penalty phase of this trial justifies a reversal of the death sentence. Accordingly, I concur with that part of the lead opinion.
{¶ 145} Whether there was juror misconduct during the guilt phase of the trial is less obvious, primarily because counsel unaccountably did not raise the issue. What we do know is that the same alternate jurors who disrupted the penalty phase of the jury deliberations were present throughout the guilt-phase deliberations.
{¶ 146} In Koch, despite the absence of specific factual allegations of misconduct, this court upheld a trial court’s grant of a mistrial based on an alternate juror’s presence in the deliberation room. Id., 89 Ohio St.3d 250 , 730 N.E.2d 963 . We so held because the alternate juror was present throughout the deliberations, because of the possibility of nonverbal communication, and because of the difficulty of determining whether the alternate juror prejudiced the jury. Id. at *157 252, 730 N.E.2d 963 . The same factors apply to this case, in the extreme. Here, five alternate jurors were present throughout deliberations. Any of the five could have engaged in nonverbal communication, and determining whether the jury was prejudiced is exceedingly difficult, especially at this time. Further, since Crim.R. 24(F)(2) provides that “[n]o alternate juror shall be substituted during any deliberation,” the presence of the alternate jurors in the deliberations could have served no useful purpose. I believe that the sanctity of the jury was violated during the guilt-phase of the deliberations. Accordingly, I dissent from the portion of the lead opinion that affirms the appellant’s conviction.