Appendix — Ohio v. Reiner
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Supreme Court U.S.
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NO.
OFFICE OF IME CLARM
IN THE SUPREME COURT OF THE UNITED STATES
THE STATE OF OHIO,
Petitioner,
v.
MATTHEW REINER,
Respondent.
APPENDIX TO PETITION FOR
WRIT OF CERTIORARI
JULIA R. BATES, PROSECUTING ATTORNEY
LUCAS COUNTY, OHIO
BY: J. Christopher Anderson, (COUNSEL OF RECORD)
Ohio Supreme Court Registration No. 0023578
John J. Weglian |
Ohio Supreme Court Registration No. 0020674
Assistant Prosecuting Attorneys
Lucas County Courthouse
Toledo, Ohio 43624
Phone No. (419) 213-4700
Fax No. (419) 213-4595
COUNSEL FOR PETITIONER, STATE OF OHIO
State of Ohio v. Reiner
89 Ohio St. 3d 342; 731 N.E.2d 662
2000 Ohio LEXIS 1847 (2000)
The Supreme Court of Ohio
PRIOR HISTORY: APPEAL and CROSS-APPEAL from and
CERTIFIED by the Court of Appeals for ann County, No.
L-97-1002.
Appellee and cross-appellant, Matthew Reiner, was convicted
by a jury of involuntary manslaughter for the death of his
two-month-old infant son, Alex Reiner. Alex died as a result of
“shaken baby syndrome."
On June 15, 1995, Deborah S. Reiner gave birth to twin boys
named Alex and Derek. Both boys were premature at birth but
otherwise healthy. The Reiners also had a two-year-old
daughter named Amy. Following the birth of the twins, both
parents took time off from work to care for them. Matthew
Reiner took leave from his job as an engineer from June 15 to
July 25, 1995. Deborah Reiner, a dentist, did not return to work
until August 14, 1995.
The Reiners hired a full-time babysitter, Susan Batt, age
twenty-four, to care for their three children. Susan Batt began
working on July 25, 1995, under Deborah Reiner's supervision
while Susan Batt became acclimated to the family. During the
first week of Susan Batt's employment, Deborah Reiner spent
most of her time at home. In the final two weeks before
Deborah Reiner returned to work, she left the home on several
occasions with Amy, leaving Susan Batt alone with the twins.
Susan Batt became the full-time exclusive childcare provider
on August 14, 1995.
Over a period of two weeks, the following events occurred.
Alex became ill the weekend of August 12, 1995. He appeared
to be achy and vomited several times. Deborah Reiner called
the pediatrician and then took Alex to an outpatient clinic on
Sunday, August 13. The clinic doctor diagnosed stomach flu
and recommended that Deborah Reiner give Alex Pedialyte.
By Wednesday, August 16, 1995, Alex had improved and
appeared to have recovered. The twins’ pediatrician performed
a well-care examination of both boys that day. The results were
unremarkable.
Deborah Reiner stayed home with the children on Wednesday,
August 23, 1995, her regular day off. Alex seemed achy that
day but had no fever. On Thursday, August 24, 1995, Susan
Batt telephoned Matthew Reiner at work and reported that Alex
had vomited in the morning. He told her to give Alex some
Pedialyte. On Friday, August 25, Susan Batt telephoned
Deborah Reiner at work to report that Alex had vomited.
Deborah Reiner's mother came over Friday afternoon to help
care for the children. Alex remained ill and vomiting over the
weekend, still with no fever.
On Monday, August 28, 1995, when Deborah Reiner returned
home after work, Susan Batt reported that Alex had eaten well
and taken two five-hour naps that day. He appeared achy but
did not have a fever, and Susan Batt had given him Tylenol.
Susan Batt left the Reiners that evening between 5:30 and 6:00
p.m. Later that evening, Deborah Reiner's parents stopped by
to drop off Amy, who had spent the day with them. They
stayed and visited until 7:30 p.m. when Matthew Reiner arrived
home.
Alex vomited again that evening at 9:00 p.m. The couple put
the twins to bed at approximately 10:30 that night. Later, they
heard Alex whimpering. Matthew Reiner took Alex downstairs.
He claimed that he laid Alex on his (Matthew's) chest to try to
get the baby comfortable and to fall asleep. Within a half hour,
Alex's breathing became labored and he became unresponsive.
Matthew Reiner took Alex to his bedroom to awaken his wife.
‘She could not get Alex to respond, so Matthew Reiner called
911.
When emergency personne] arrived, Alex had no pulse and was
not breathing. His skin was blue. They transported Alex to a
nearby hospital, where he was placed on a respirator. Two days
later, on August 30, 1995, Alex was removed from life support
and died.
Dr. James Patrick, Lucas County Coroner, performed an
autopsy. He concluded that Alex had died from "shaken baby
syndrome." Dr. Patrick estimated that the time of injury was
the evening of Monday, August 28, 1995, most likely within
minutes of the onset of respiratory arrest when Matthew Reiner
had been alone with Alex, but at most, within two to three
hours of the onset.
A grand jury indicted Matthew Reiner for involuntary
manslaughter. The case proceeded to trial. The key issue at trial
was the timing of the fatal trauma to Alex. The defense theory
was that Susan Batt, not Matthew Reiner, was the culpable
party. The defense presented evidence that all three Reiner
children had been healthy from birth until the weekend of
August 11, 1995, after Susan Batt became employed. Deborah
Reiner testified that her children had no medical problems from
the time of Alex's death until the trial, after Susan Batt left the
Reiners' employ. Deborah Reiner also testified that no other
family members had contracted a stomach virus or suffered
symptoms similar to Alex's during the last two weeks of
August despite their close proximity to Alex, in particular his
twin, Derek, who slept in the same crib. There also was
evidence of additional injuries to Alex and injuries to Derek. A
hospital radiologist testified that x-ray films of Alex taken at
the hospital on August 29, 1995, indicated a broken rib and
broken leg. Subsequent x-rays of Derek indicated that he
suffered from three broken ribs.
Dr. Patrick testified on behalf of the prosecution. He explained
that, based upon his findings from the autopsy and the jack of
any evidence of a blow to the head or other significant trauma,
Alex had died of shaken baby syndrome. Dr. Patrick testified
that the brain had been injured when it was "subjected to forces
operating in different directions" that caused the blood vessels
to tear. He described these forces as "shearing forces" that
rapidly disrupted the electrical circuitry of the brain and caused
loss of consciousness. Dr. Patrick testified that when this
occurs, the brain is profoundly disrupted and no longer capable
of responding to stimuli. Although there was evidence of brain
swelling, Dr. Patrick testified that swelling is merely an
indication that there has been an injury.
After the autopsy, Dr. Patrick prepared slides of brain tissue in
order to examine microscopically the various injuries inside the
brain. He testified that the slides confirmed the presence of
blood and the brain injury.
During cross-examination, defense counsel questioned Dr.
Patrick about the significance of the swelling of the brain, or
edema. Dr. Patrick stated that although edema was present and
played a role, the principal problem was the mechanical
disruption to the circuits of the brain. Defense counsel then
asked Dr. Patrick about his testimony to the grand jury in
which he attributed Alex's loss of consciousness and lack of
breathing to swelling of the brain within a confined space.
When confronted with statements taken from his testimony
given to the grand jury in this case, Dr. Patrick reviewed the
page from the grand jury transcript and admitted that he had
made the statements.
The trial court refused to admit into evidence only one page
from the transcript of Dr. Patrick's grand jury testimony
because one page taken out of context would not have fairly
and accurately represented his grand jury testimony. Defense
counsel, however, would not agree to the admission of the
entire statement. Defendant then moved to strike Dr. Patrick's
opinion as unreliable under Evid.R. 702(C). The court
overruled the motion.
Dr. Elizabeth K. Balraj, the Cuyahoga County Coroner and a
professional acquaintance of Dr. Patrick, also testified on
behalf of the prosecution. She testified that the Lucas County
Coroner's Office sent her information about this case, including
the autopsy report, Alex's medical records, and photographs
and slides taken at the time of the autopsy. Dr. Balraj also
testified that Alex died as a result of shaken baby syndrome. In
response to a lengthy hypothetical question that asked Dr.
Balraj for her opinion "to a reasonable degree of medical
certainty" as to when the injury was inflicted upon Alex in
relation to his collapse, Dr. Balraj responded that "the type of
injuries and the information that you have given me is
consistent with the child sustaining the injury sometime
between 10:30 p.m. and 11:00 p.m."
Susan Batt was subpoenaed by the prosecution and the defense.
She invoked her Fifth Amendment privilege against
self-incrimination and refused to testify. She had also invoked
her Fifth Amendment privilege while testifying in the juvenile
court proceeding. The prosecution requested that the court
grant Susan Batt transactional immunity pursuant to R.C.
2945.44 and compel her to testify. The prosecution told the
court that it did not presently intend to prosecute Susan Batt for
this crime. The court granted her transactional immunity.
Having been granted transactional immunity, Susan Batt
subsequently testified. She explained to the jury that she had
refused to answer questions without a grant of immunity upon
the advice of counsel although she had done nothing wrong.
She testified that she had attended a nanny and governess
school in Cleveland. She previously worked for three years as
a live-in nanny for another family with three children. She
learned of the position with the Reiner family through a
newspaper ad. She began working limited hours for the Reiners
on July 25, 1995, while she became acquainted with the
children and their routines. When Deborah Reiner returned to
work on August 14, 1995, Susan Batt worked from 7:30 a.m.
to 5:30 p.m. on Mondays, Tuesdays, Thursdays, and Fridays.
Susan Batt testified that she had never shaken the children
while she was alone with them. She specifically denied shaking
Alex on August 28, 1995. She testified that she did nothing to
harm any of the Reiner children. She also testified that she was
not aware that Alex had a broken leg or that Derek had some
broken ribs. She denied that she had anything to do with the
broken bones.
Susan Batt testified that she last worked for the Reiners on
Tuesday, August 29, 1995, the day after Alex had been taken
to the hospital. She learned of Alex's death through the news.
She had no further contact with Reiners.
On September 23, 1996, a jury convicted Matthew Reiner of
involuntary manslaughter. Two weeks later, the defense filed
a motion for acquittal or, in the alternative, for a new trial. The
defense claimed that the verdict was not supported by the
evidence. The defense also alleged legal errors and procedural
irregularities with regard to the grant of immunity to Susan
Batt, jury instructions related to Batt's testimony and her
implied admission of guilt, and the court's refusal to permit
defense counsel to ask Susan Batt about other injuries to the
Reiner children.
The defense motion alleged prosecutorial misconduct in failing
to disclose that Dr. Patrick was allegedly changing his
testimony or theory of the case. The defense also claimed that
the trial court should have admitted Dr. Patrick's grand jury
testimony as a prior inconsistent statement, and that the court
should have stricken as unreliable the opinions of the coroners
who testified for the prosecution. Finally, the defense alleged
juror misconduct and attached the affidavit of Rolf R.
Sandberg, an alternate juror. In his affidavit, Rolf Sandberg
admitted that during the trial, he had discussions with several
other jurors about the case, including assessments and
characterizations of the evidence, the credibility of witnesses,
and his opinion about the guilt or innocence of the defendant.
The trial court conducted an in camera inspection of Rolf
Sandberg on October 31, 1996. The court then subpoenaed
each juror to appear and testify about the alleged misconduct.
Thereafter, the trial court denied the motion for new trial. The
court determined that Rolf Sandberg's affidavit did not
constitute competent non-juror evidence under Evid.R. 606(B),
because he was an alternate juror. Furthermore, even assuming
that Rolf Sandberg's affidavit was competent evidence, the
court concluded that he was not a credible witness. The court
said it should not have conducted the hearing and specifically
was not considering any statement by the jurors. The court
found no prejudice to the defendant as a result of any jury
conduct, and even if misconduct occurred that was presumed
to be prejudicial, the state had rebutted the presumed prejudice
beyond a reasonable doubt.
Matthew Reiner appealed his conviction to the Lucas County
Court of Appeals. The appellate court reversed the trial court
solely on the issue of juror misconduct. The appellate court
considered Rolf Sandberg's affidavit as outside evidence of
extraneous prejudicial information that had been improperly
brought to the jury's attention. The appellate court concluded
that there had been juror misconduct that was prejudicial to the
defendant. The appellate court also considered as misconduct
the failure of the other jurors to abide by the trial court's
instruction not to discuss the case with anyone including each
other until deliberations began. The court considered this fact
to be evidence that Rolf Sandberg's conduct tainted the jury
panel.
The appellate court affirmed the trial court's grant of
transactional immunity to Susan Batt. The court held that, at
the time immunity was granted, it did not appear to Susan Batt
that she lacked culpability because she knew the defense was
going to try to blame her for Alex's death. When it granted her
immunity, the trial court did not know if the defense had any
evidence that would implicate Susan Batt. Therefore, at the
time, the trial court would not have known that Susan Batt's
assertion of her Fifth Amendment right against
self-incrimination was a mistake. }
The appellate court also affirmed the trial court's refusal to
strike Dr. Patrick's testimony as to the cause of Alex's death.
The court reasoned that the defense's objection that Dr. Patrick
did not have the appropriate tissue slides to support his
conclusion about the cause of death went to the weight of the
evidence rather than to its admissibility. The appellate court
also upheld the trial court's decision not to admit Dr. Patrick's
grand jury testimony as a prior inconsistent statement. The
appellate court concluded that Dr. Patrick admitted he had
made the alleged inconsistent statements to the grand jury;
thus, the trial court did not have to admit the prior testimony.
As to the legal sufficiency of the opinion given by Dr. Balraj
concerning the timing of Alex's collapse, the appellate court
concluded that Dr. Balraj's use of the word "consistent" instead
of "probable," when giving her opinion as to the timing of the
injury, was not a fatal error. In addition, the court determined
that Dr. Balraj's testimony was cumulative. The appellate court
also found that the trial court did not abuse its discretion in
refusing to instruct the jury on implied admission of guilt.
Thereafter, the court of appeals determined that its judgment
that Evid.R. 606(B) bars any inquiry of a juror as to the effect
of extraneous information or improper outside influence upon
his or her decision-making process was in conflict with State
v. Thomas, 1995 Ohio App. LEXIS 3244 (July 26, 1995),
Athens App. No. 94CA1608, unreported, 1995 WL 468183.
The appellate court entered an order certifying a conflict.
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The state appealed and the defendant filed a cross-appeal.
This cause is now before this court upon our determination that
a conflict exists (case No. 99-427), and pursuant to the
allowance of a discretionary appeal and cross-appeal (case No.
99-239).
DISPOSITION: Judgment affirmed in part, reversed in part
and cause remanded.
CASE SUMMARY
PROCEDURAL POSTURE: The State challenged a
judgment of the Court of Appeals for Lucas County (Ohio),
which reversed appellee father's involuntary manslaughter
conviction for the "shaken baby syndrome" death of his
two-month-old son. Appellee cross-appealed, challenging the
validity of the trial court's grant of transactional immunity to
the infant's babysitter.
OVERVIEW: The lower appellate court deena appellee's
involuntary manslaughter conviction concluding there had been
juror misconduct that was prejudicial to appellee. An alternate
juror had submitted an affidavit admitting that during trial he
had engaged in discussions with several other jurors about the
case, including expressing his opinion about the guilt or
innocence of appellee. The lower appellate court considered the
affidavit as outside evidence of extraneous prejudicial
information that had been improperly brought to the jury's
attention. Judgment reversed as to juror misconduct issue, as
the prohibitions against a court receiving evidence from a juror
applied to alternate jurors as well. Therefore, the alternate
juror's affidavit was not competent evidence to attack the jury's
guilty verdict. The grant of transactional immunity to the
full-time babysitter of appellee's son was improper as she did
not have a valid U.S. Const. amend. V privilege against
self-incrimination upon which to base the immunity. There was
no need for a grant of immunity because the babysitter denied
all culpability in the boy's death. Cause was remanded for a
new trial.
OUTCOME: Judgment reversed, in part; evidence from
alternate juror regarding misconduct by jury, without other
outside evidence, was insufficient evidence for trial court to
rely on in order to conduct an inquiry of other jurors into
validity of verdict. Further, as babysitter did not have a valid
self-incrimination privilege, trial court's grant of immunity to
her was erroneous and unlawful
Ohio R. Evid. 613(B)(1) states, in part, that extrpportunity to
explain or deny the statement and the opposite party is afforded
an opportunity to interrogate the witness on the statement or
the interests of justice otherwise require.
SYLLABUS: 1. The prohibitions against receiving evidence
from a juror in Evid.R. 606(B) apply to alternate jurors.
2. Evidence received from an alternate juror, without other
outside evidence, is insufficient aliunde evidence under
Evid.R. 606(B) upon which a court may rely in order to
conduct an inquiry of other jurors into the validity of a verdict.
COUNSEL: Julia R. Bates, Lucas County Prosecuting
Attorney, John J. Weglian and J. Christopher Anderson,
Assistant Prosecuting Attorneys, for appellant and
cross-appellee.
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Fritz Byers, Robert Z. Kapian and Samuel Z. Kaplan; Cooper,
Walinski & Cramer-and Richard S. Walinski, for appellee and
cross-appellant.
JUDGES: WOLFF, F.E. SWEENEY and PFEIFER, JJ.,
concur. DOUGLAS, J., concurs separately. MOYER, C.J.,
dissents. COOK, J., concurs in part and dissents in part.
WILLIAM H. WOLFF, JR., J., of the Second Appellate
District, sitting for RESNICK, J.
OPINIONBY: LUNDBERG STRATTON
OPINION:
LUNDBERG STRATTON, J. The Lucas County Court of
Appeals stated the certified conflict as "whether Evid.R.
606(B) permits, under any circumstances, inquiry of a juror as
to the effect of extraneous information or improper outside
influence upon his or her decision making process." The
dissenting judge framed the same issue as follows: "In a case
of jury misconduct (statements, conversations or remarks made
to a juror), once evidence aliunde of jury misconduct is
provided, whether a court may inquire of a juror as to whether
or not the juror remained uninfluenced by the misconduct (i.e.,
impartial) so that the defendant was not denied his substantial
rights." Because this latter statement more succinctly states the
issue, we shall consider the certified conflict in the terms
articulated by the dissenting judge.
The state's discretionary appeal involves the related issues of
burden of proof when there are allegations of juror misconduct
in a criminal case, and whether an affidavit from an alternate
juror constitutes outside evidence sufficient to trigger the
application of Evid.R. 606(B), otherwise known as the aliunde
rule.
The defendant's cross-appeal challenges the validity of the
transactional immunity granted to Susan Batt, the reliability of
the opinions rendered by the state's medical witnesses, the trial
court's failure to admit Dr. Patrick's grand jury testimony for
impeachment purposes, and Dr. Balraj's expression of her
medical opinion on causation.
For the reasons more fully set forth below, we reverse the
judgment of the court of appeals as to juror misconduct and the
grant of transactional immunity to Susan Batt, and we affirm
the remainder of the court's judgment.
JUROR MISCONDUCT
Because the certified conflict presumes the existence of aliunde
evidence, before we may address this issue, we must decide the
threshold question of whether Evid.R. 606(B), also known as
the aliunde rule, applies to alternate jurors. For the reasons
more fully set forth below, we hold that the prohibitions against
receiving evidence from a juror in Evid.R. 606(B) apply to
alternate jurors. Therefore, evidence received from an alternate
juror, without other outside evidence, is insufficient aliunde
evidence under [**671] Evid.R. 606(B) upon which a court
may rely in order to conduct an inquiry of other jurors into the
validity of a verdict. :
It is a longstanding rule that "the verdict of a jury may not be
impeached by the evidence of a member of the jury unless
foundation for the introduction of such evidence is first laid by
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competent evidence aliunde, i.e., by evidence from some other
source." State v. Adams (1943), 141 Ohio St. 423, 427, 25 Ohio
Op. 570, 572, 48 N.E.2d 861, 863. Ohio has adopted this rule
in Evid.R. 606(B), which states:
"Upon an inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter or statement occurring
during the course of the jury's deliberations or to the effect of
anything upon his or any other juror's mind or emotions as
influencing him to assent to or dissent from the verdict or
indictment or concerning his mental processes in connection
therewith. A juror may testify on the question whether
extraneous prejudicial information was improperly brought to
the jury's attention or whether any outside influence was
improperly brought to bear on any juror, only after some
outside evidence of that act or event has been presented.
However a juror may testify without the presentation of any
outside evidence concerning any threat, any bribe, any
attempted threat or bribe, or any improprieties of any officer of
the court. His affidavit or evidence of any statement by him
concerning a matter about which he would be precluded from
testifying will not be received for these purposes." (Emphasis
added.)
The rule is intended to preserve the integrity of the jury process
and the privacy of deliberations, to protect the finality of the
verdict, and to insulate jurors from harassment by dissatisfied
or defeated parties by prohibiting a court from questioning a
juror about what occurred during deliberations, or about
anything else that may have affected the juror's mind or
emotions in the deliberations process once a final verdict is
rendered. State v. Schiebel (1990), 55 Ohio St. 3d 71, 75, 564
N.E.2d 54, 61; State v. Adams, 141 Ohio St. at 427, 25 Ohio _
Op. at 572, 48 N.E.2d at 863. However, if there is a foundation
L45-
of outside evidence of extraneous prejudicial information, or of
any threat, bribe, or improper conduct by an officer of the
court, the rule permits a court to ask a juror about that outside
evidence.
The trial court determined that Rolf Sandberg's affidavit was
not competent evidence to attack the jury's verdict under
Evid.R. 606(B). The court reasoned that the intent of Evid.R.
606(B), to prevent an attack by a disgruntled juror, should
likewise apply to an alternate juror.
The court of appeals reversed on the basis of State v. Rudge
(1993), 89 Ohio App. 3d 429, 624 N.E.2d 1069. The Rudge
court considered an alternate juror to be outside the regular jury
panel because an alternate does not participate in deliberations
or in reaching the final verdict. Jd., 89 Ohio App. 3d at 437,
624 N.E.2d at 1074. In Rudge, after the trial was over, an
alternate juror informed the bailiff that on two occasions he had
overheard other jurors make statements about the defendant
prior to opening statements and during the trial. The trial court
conducted an in camera examination of the alternate juror,
followed by an examination of the remaining jurors. The court
granted a mistrial on the basis that one of the statements was
prejudicial. The court of appeals noted that, as a
nondeliberating juror, an alternate may not be viewed as a
member of the jury, so that the alternate's testimony may
constitute aliunde evidence for purposes of Evid.R. 606(B).
However, the Rudge court concluded that Evid.R. 606(B) was
not applicable, because the trial court's inquiry did not threaten
or reveal discussion during deliberations. The Rudge court
considered it proper to inquire into the partiality of jurors to
determine if the defendant had received a fair trial before an
impartial jury, but not to inquire into deliberations. Id., 89 Ohio
App. 3d at 439, 624 N.E.2d at 1076. Based upon Rudge, the
court of appeals held that Rolf Sandberg's affidavit was
sufficient outside evidence for the court to have inquired of the
jurors about the alleged misconduct that occurred during the
trial.
It is apparent from the language of Evid.R. 606(B) that the rule
becomes applicable only when the validity of a verdict is
questioned. Although Evid.R. 606(B) protects the deliberations
process, the language of the rule does not limit its application
to the examination of improper conduct or communications
only during deliberations. The rule also prohibits inquiry into
"the effect of anything upon his or any other juror's mind or
emotions as influencing him to assent to or dissent from the
verdict * * * or concerning his mental processes in connection
therewith." This may involve inquiry into improper conduct
that occurred throughout the trial, during the presentation of
evidence, or among jurors during the course of the trial that
may influence a juror's mind, emotions, or mental processes
during deliberations. Events that occur during the trial may also
have an effect upon the jurors’ deliberations.
Alternate jurors are selected at the same time and in the same
' manner as the entire jury panel. An alternate juror participates
as a regular member of the jury panel and is subject to the same
jury admonitions and rules until discharged. The alternate juror
sees and hears the entire trial and is prepared to deliberate. An
alternate juror may become a member of the deliberating panel.
State v. Hutton (1990), 53 Ohio St. 3d 36, 45, 559 N.E.2d 432,
443.
Here, Rolf Sandberg was an alternate juror who claimed that he
violated jury rules during the trial. However, he waited until
after the verdict before notifying defense counsel about his
conduct in an effort to challenge the finality of the verdict.
When questioned by the trial judge, Rolf Sandberg admitted
that he was frustrated that he had not been able to deliberate
and that he was upset with the guilty verdict. Although the
defense claimed that Rolf Sandberg's misconduct affected the
deliberations process and tainted the verdict, the defendant
presented no outside evidence of the improper conduct. This is
precisely the situation that the aliunde rule was intended to
prevent--a disgruntled juror attacking the verdict.
Had the trial judge been notified of this conduct curing the
trial, the judge would have had an opportunity to inquire of the
jurors about any misconduct or violation of the jury rules
because the aliunde rule was not yet applicable. See State v.
Taylor (1991), 73 Ohio App. 3d 827, 598 N.E.2d 818.
Although Rolf Sandberg did not deliberate, he was privy to the
jury process up to the actual deliberations. His alleged
misconduct during the trial had nothing to do with his status as
an alternate juror and could just as likely have been committed
by a regular juror. The defense sought to attack the final verdict
based upon Rolf Sandberg's conduct during the trial prior to his
discharge. Therefore, for purposes of the aliunde rule, one's
Status as an alternate juror should not preclude application of
the rule. Therefore, we disapprove of the decision in State v.
Rudge to the extent that it holds otherwise.
When the defendant moved for acquittal or, in the alternative,
a new trial, based solely on the alleged juror misconduct in
Rolf Sandberg's affidavit, the trial court properly concluded
that it was prohibited by Evid.R. 606(B) from considering Rolf
Sandberg's affidavit or testimony for purposes of attacking the
jury verdict. The court correctly disregarded the testimony of
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other jurors. Consequently, we reverse the judgment of the
court of appeals and reinstate the judgment of the trial court
with respect to the issue of juror misconduct.
Having determined that the affidavit from the alternate juror
was not competent evidence aliunde to challenge the jury's
verdict, our resolution of this case effectively removes any
conflict that may have existed with State v. Thomas, supra,
because that case involved a juror's contact with a non-juror.
IMMUNITY FROM PROSECUTION
Defendant's cross-appeal challenges the validity of the trial
court's grant of immunity to Susan Batt. The defendant alleges
that the grant of transactional immunity pursuant to R.C.
2945.44 was unlawful because Susan Batt did not have a valid
Fifth Amendment privilege against self-incrimination upon
which to base the immunity. Defendant claims that, as a
consequence, his rights were prejudiced. We agree.
The Fifth Amendment declares that "no person * * * shall be
compelled in any criminal case to be a witness against himself
* * * " This right, or privilege, ensures that a person is not
compelled to produce evidence that may tend to incriminate
him. The privilege, however, is not unlimited. A person may
decline to answer specific questions "only when the danger of
incrimination is real and appreciable, rather than imaginary and
insubstantial," or when the answer could reasonably "[furnish]
a link in the chain of evidence” against him. State v. Jenkins
(1984), 15 Ohio St. 3d 164, 228, 15 Ohio B. Rep. 311, 366, 473
N.E.2d 264, 318. See United States v. Apfelbaum (1980), 445
U.S. 115, 100 S. Ct. 948, 63 L. Ed. 2d 250; Hoffman v. United
States (1951), 341 U.S. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed.
1118, 1124.
| -19-
When a witness asserts a privilege against self-incrimination,
a court may not rely upon the witness's claim alone. State v.
Landrum (1990), 53 Ohio St. 3d 107, 120, 559 N.E.2d 710,
726, The court has a duty to determine if the witness's refusal
to answer is justified. Jd. If the court determines that a witness
is mistaken about the danger of incrimination, then the court
must require the witness to answer the question. Hoffman v.
United States, 341 U.S. at 486, 71 S. Ct. at 818, 95 L. Ed. at
1124.
However, when the court is satisfied that the witness's refusal
to answer is justified, a court may either excuse the witness
from testifying or, upon the written request of the prosecuting
attorney, may compel the witness to answer by granting that
person immunity from prosecution for any criminal act about
which the person may testify. R.C. 2945.44; State v. Kirk
(1995), 72 Ohio St. 3d 564, 651 N.E.2d 981; State ex rel. Leis
v. Outcalt (1982), 1 Ohio St. 3d 147, 1 Ohio B. Rep. 181, 438
N.E.2d 443.
In this case, the trial court relied upon R.C. 2945.44. It states:
"(A) In any criminal proceeding in this state * * *, if a witness
refuses to answer or produce information on the basis of his
privilege against self-incrimination, the court of common pleas
of the county in which the proceeding is being held, unless it
finds that to do so would not further the administration of
justice, shall compel the witness to answer or produce the
information, if both of the following apply:
"(1) The prosecuting attorney of the county in which the
proceedings are being held makes a written request to the court
-20-
of common pleas to order the witness to answer or produce the
information, notwithstanding his claim of privilege;
"(2) The court of common pleas informs the witness that by
answering, or producing the information he will receive
immunity under division (B) of this section.
"(B) If, but for this section, the witness would have been
privileged to withhold an answer or any information given in
any criminal proceeding, and he complies with an order under
division (A) of this section compelling him to give an answer
or produce any information, he shall not be prosecuted or
subjected to any criminal penalty in the courts of this state for
or on account of any transaction or matter concerning which,
in compliance with the order, he gave an answer or produced
any information.”
Transactional immunity is a prosecutorial tool to enable the
government to obtain necessary testimony. Leis, 1 Ohio St. 3d
at 149, 1 Ohio B. Rep. at 183, 438 N.E.2d at 446. The practical
effect of a grant of immunity is that a witness is compelled to
give information that the witness would otherwise be
privileged to withhold in order to assist the prosecution. Often
the witness who is compelled to testify is a co-defendant or is
facing other charges related to the defendant's charges. The
prosecution is willing to forgo possible prosecution of the
witness by granting the witness immunity in exchange for
useful testimony that will assist in convicting the defendant.
There is no need for a grant of immunity where the witness
denies all culpability. In situations where an admission of guilt
by one person would completely exonerate any possible guilt
of another person, as is the case here, a grant of immunity is
unnecessary and improper. An assertion of the Fifth
-21-
Amendment privilege by Susan Batt would lead one to believe
that she possessed self-incriminating knowledge regarding her
own culpability. Had Susan Batt been granted immunity and
testified that she had shaken Alex and caused his death, the
prosecution would have no further grounds to prosecute
Matthew Reiner. To grant immunity in such a situation may
have allowed the guilty party to go free and would not "further
the administration of justice."
Susan Batt's counsel informed the court in advance of her
testifying that she intended to assert her Fifth Amendment
privilege and would refuse to answer questions. All counsel
present knew that she had likewise asserted this privilege in a
related juvenile court proceeding and did not answer any
questions. Susan Batt's counsel explained that, although Susan
Batt was not the focus of a criminal investigation, she had been
with the victim within the potential time frame of the fatal
trauma, she was the focus of the defense, and she did not know
the identity of defense witnesses who may be called to
inculpate her. Susan Batt would testify only if granted
“complete and absolute immunity."
The prosecution initially seemed perplexed as to why Susan
Batt would refuse to testify. The prosecution said that Susan
Batt had told the Children's Services Board that she had
nothing to do with the victim's injuries, and her counsel had not
indicated that her testimony would incriminate her. The
prosecution informed the court that it had no intention of
prosecuting Susan Batt. She was not being investigated and
there was insufficient evidence to take to the grand jury. The
prosecution even told the court, "I don't know how in the
interest of justice I can request immunity for this witness
because it doesn't seem to me that she in any way has anything
to assert the Fifth Amendment privilege to protect herself, or
I'm unaware of anything." However, when it became apparent
that Susan Batt did not intend to testify, the prosecution
reluctantly agreed to consider a request that the court grant
Susan Batt transactional immunity, rather than request that the
court use its contempt powers to force a reluctant witness to
testify.
When Susan Batt took the witness stand at trial and invoked
her Fifth Amendment privilege, the prosecution submitted a
written request asking the court to grant her immunity pursuant
to R.C. 2945.44. The court conducted a hearing on whether the
grant of immunity would “further the administration of justice."
R.C. 2945.44. However, the court did not address the
prosecution's earlier concerns that Susan Batt had no apparent
reason, other than her fear of Matthew Reiner's defense, to
assert the Fifth Amendment privilege. Nevertheless, the court
decided that it would be in the "interests of justice" to compel
Susan Batt to testify. The court granted her transactional
immunity.
Based on the prosecutors’ statements alone, the trial judge had
a duty to question Susan Batt's assertion of the privilege and
whether her testimony would, as she claimed, be
self-incriminating. State v. Landrum, supra. Instead, the trial
judge merely relied upon Susan Batt's claim of privilege and
disregarded the questions and concerns expressed by
prosecutors. Susan Batt's testimony did not incriminate her,
because she denied any involvement in the abuse. Thus, she did
not have a valid Fifth Amendment privilege.
A court may-resort to R.C. 2945.44 only after reaching the
threshold determination that the witness's testimony would be
-23-
self-incriminating. This is apparent from the language of
subsection (B) of the statute, which states that "if, but for this
\ section, the witness would have been privileged to withhold an
answer or any information given in any criminal proceeding *
* *" (Emphasis added.) We agree with the defendant that
before a court may exercise its authority to grant a person
transactional immunity, it is implicit that the person has validly
asserted the privilege against self-incrimination. Once the issue =
of immunity under R.C. 2945.44 arises, it is inherent that the
court has already determined that the witness has a valid
privilege against self-incrimination in order to invoke
immunity. Here the trial court failed to make that
determination.
The court of appeals below likewise recognized this threshold
determination when it stated that "the language of R.C. 2945.44
implies that a trial court make some determination of the
validity of the privilege against self-incrimination antecedent
to a grant of statutory immunity." Nevertheless, the appellate
court focused on circumstances that would have led the trial
court to believe that Susan Batt was not mistaken in asserting
her Fifth Amendment right against self-incrimination, i.e., she
knew that the defense blamed her for the baby's death and she
did not know what evidence, if any, the defense may have had
that would implicate her in the fatal trauma. Again, these are
merely Susan Batt's assertions. A defense theory is not a
ground for a grant of immunity when the witness continues to
deny any self-incriminating conduct. The appellate court did
not consider the prosecutors’ statements or the fact that Susan
Batt had denied any involvement in the abuse to Alex when
questioned by Children's Services Board. These are factors that
could and should have been considered by the trial court in
determining whether Susan Batt's fear of self-incrimination was
-24-
real or imaginary.
In addition, the wrongful grant of immunity resulted in serious
prejudice to the defendant. The essence of Matthew Reiner's
defense was that Susan Batt was responsible for Alex's death.
When the court granted her immunity, the court in effect was
telling the jury that Susan Batt did not cause Alex's injuries. To
“further the administration of justice," the jury should have
been able to hear and evaluate all the evidence to decide
whether someone other than Matthew Reiner was responsible
for Alex's death. A grant of immunity to Susan Batt under these
circumstances seriously affected the fairness of the trial and
resulted in prejudice to the defendant.
The state argues that a defendant lacks standing to challenge a
grant of immunity. State v. Bika, 1978 Ohio App. LEXIS 9311
(Oct. 19, 1978), Marion App. No. 9-78-6, unreported; State v.
Steverson, 1998 Ohio App. LEXIS 4288 (Sept. 15, 1998),
Franklin App. No. 97APA11-1466, unreported, 1998 WL
634949. This argument assumes that the grant of immunity met
the statutory threshold of a valid- privilege against
self-incrimination. Because Susan Batt lacked a valid Fifth
Amendment privilege against self-incrimination and the grant
of immunity was unlawful, the state's standing argument lacks
merit.
The state also contends that the defendant failed to preserve
any error for appeal by failing to object to the grant of —
immunity. We do not agree. Defense counsel sufficiently
objected to the grant of immunity when the court conducted a
hearing on whether the grant of immunity would further the
administration of justice.
Therefore, we find that a court has no judicial discretion to
grant or deny immunity until and unless the statutory
requirements for immunity are met. This includes a valid
assertion of one's Fifth Amendment privilege. Leis, 1 Ohio St.
3d at 149, 1 Ohio B. Rep. at 183, 438 N.E.2d at 446. Because
Susan Batt did not have a valid Fifth Amendment privilege, the
trial court's grant of immunity was erroneous and unlawful.
EVIDENTIARY ISSUES
The defense contends that Dr. Patrick's theory of the cause of
death was not based upon objectively verifiable facts as
required by Evid.R. 702(C)(1). Therefore, it was not reliable
evidence and Dr. Patrick's testimony should have been stricken.
The defense relies upon the testimony of its expert witnesses
who opined that the tissue slides taken by Dr. Patrick did not
show the damage about which he testified.
A decision to admit the testimony of an expert, once qualified,
is generally within the broad discretion of the trial court and
will not be disturbed absent a showing of an abuse of
discretion. See State v. Williams (1996), 74 Ohio St. 3d 569,
576, 660 N.E.2d 724, 732; State v. Mack (1995), 73 Ohio St. 3d
502, 511, 653 N.E.2d 329, 337. An abuse of discretion requires
more then an error of law or judgment; it implies that the
court's attitude is unreasonable, arbitrary, or unconscionable.
State v. Clark (1994), 71 Ohio St. 3d 466, 470, 644 N.E.2d
331, 335; State v. Moreland (1990), 50 Ohio St. 3d 58, 61, 552
N.E.2d 894, 898; State v. Adams (1980), 62 Ohio St. 2d 151,
157, 16 Ohio Op. 3d 169, 173, 404 N.E.2d 144, 149.
Here, the appellate court concluded that defense challenges to
the reliability of the brain tissue slides concerned the weight of
eS ere:
the evidence, not its admissibility. We agree. This decision was
within the broad discretion of the trial court and the court did
not abuse its discretion with respect to the reliability of expert
evidence within the confines of Evid.R. 702(C).
The defense also contends that Dr. Balraj failed to express her
opinion as to the cause of death in terms of probability. When
asked her opinion "to a reasonable degree of medical certainty
as to when the injury was inflicted in relationship to the
collapse," Dr. Balraj stated that "the type of injuries * * * [are]
consistent with the child sustaining the injury between 10:30
p.m. and 11:00 p.m." The appellate court determined that the
use of the word "consistent" was not fatal to Dr. Balraj's overall
testimony because she was answering a hypothetical question
predicated upon the appropriate standard of medical certainty.
In addition, her testimony was cumulative. Looking at the
overall context of her testimony, we agree that the trial court
did not abuse its discretion when it refused to strike the
testimony of Dr. Balraj for failure to include the word
"probable" in her opinion.
The defense claims that the trial court should have admitted the
grand jury testimony of Dr. Patrick as a prior inconsistent
statement under Evid.R. 613(B). The defense contended that
the opinion offered by Dr. Patrick before the grand jury as to
the cause of death was different from the opinion that he
rendered at trial. The trial court permitted the defense to
cross-examine Dr. Patrick about a particular statement he had
made to the grand jury. Dr. Patrick initially disagreed with
statement but, after reviewing his grand jury transcript, he
subsequently said that he recalled making the statement,
although he attempted to qualify his answer and put it into
context with the remainder of his grand jury testimony. The
-27-
statement alone could appear to be inconsistent. :
The defense moved to introduce into evidence the one page
from the transcript of Dr. Patrick's grand jury testimony that
contained the alleged inconsistent statement. The court said it
would admit the entire transcript from the grand jury in order
to put the alleged inconsistency into context; however, the
defense would not agree. Therefore, the court excluded the
one-page exhibit.
Evid.R. 613(B)(1) states, in part, that extrinsic evidence of a
prior inconsistent statement is admissible "if the statement is
offered solely for the purpose of impeaching the witness, the
witness is afforded a prior opportunity to explain or deny the
statement and the opposite party is afforded an opportunity to
interrogate the witness on the statement or the interests of
justice otherwise require."
Although the defense fulfilled the requirements of Evid.R.
613(B),we agree with the reasoning of the trial court that it
would have been improper to admit only one page of Dr.
Patrick's grand jury testimony because it would not fairly and
accurately represent his testimony to the grand jury. The trial
court acted within its discretion to exclude the exhibit when
defense counsel would not agree to admission of the entire
transcript. Evid.R. 106.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the court
of appeals with respect to the juror misconduct and the grant of
immunity to Susan Batt, and we affirm the remainder of the
court's judgment. This cause is remanded to the trial court for
-98.:
a new trial consistent with this opinion.
Judgment affirmed in part,
reversed in part and cause remanded.
WOLFF, F.E. SWEENEY and PFEIFER, JJ., concur.
DOUGLAS, J., concurs separately.
MOYER, C.J., dissents.
COOK, J., concurs in part and dissents in part.
WILLIAM H. WOLFF, JR., J., of the Second Appellate
District, sitting for RESNICK, J.
CONCURBY: DOUGLAS; COOK (In Part)
CONCUR:
DOUGLAS, J., concurring. I concur with the ultimate
judgment of the majority in remanding this cause to the trial
court for a new trial. I write separately to specifically concur in
‘the majority's opinion with regard to the immunity issue and
the discussion of the issue found in the "Immunity From
Prosecution" section of the opinion. I also write because I
agree, with regard to the juror misconduct issue, with the
analysis found in Chief Justice Moyer's dissenting opinion.
DISSENT BY: MOYER; COOK (In Part)
DISSENT: ~ ;
-29-
MOYER, C.J., dissenting. I concur in the decision of the
majority with respect to the grant of immunity to Susan Batt,
and the evidentiary issues presented by the defense. However,
I respectfully dissent fromthe decision of the majority holding
that evidence received from an alternate juror who did not
participate in deliberations is insufficient aliunde evidence
under Evid. R. 606(B) to inquire into the validity of the verdict.
While I recognize that allowing a party to question a jury
verdict based on evidence presented by an alternate juror may
have some detrimental consequences, I believe that the
integrity of the jury process would be better preserved by
allowing such inquiries.
Evid.R. 606(B) provides:
"Upon an inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter or statement occurring
during the course of the jury's deliberations or to the effect of
anything upon his or any other juror's mind or emotions as
influencing him to assent to or dissent from the verdict or
indictment or concerning his mental processes in connection
therewith. A juror may testify * * * only after some outside
evidence of that act or event has been presented." (Emphasis
added.)
The majority correctly observes that Evid.R. 606(B) is intended
to preserve the integrity of the jury process and the privacy of
deliberations. Significantly, the rule prohibits testimony about
events and statements occurring during the course of
deliberations, absent some outside evidence of such
occurrences. The rule does go further to prohibit inquiry into
“the effect of anything upon his or any other juror's mind or
emotions as influencing him to assent to or dissent from the
-30-
verdict * * * or concerning his mental processes in connection
therewith." The majority relies on this additional language to
conclude that testimony of an alternate juror is insufficient
outside evidence to inquire into the validity of a jury verdict.
However, the inclusion of the words “during the course of
deliberations” in the first sentence of the rule indicates that
Evid.R. 606(B) is meant to protect the deliberation process.
Therefore, it follows that an alternate juror, who did not |
participate in deliberations, could properly supply the evidence
necessary to inquire into the validity of the verdict reached by
the jury.
The majority also concluded that the aliunde rule is not
applicable during the ttial. Instead, the rule applies only after
the jury decides on a\verdict. This fact further supports
allowing an alternate juror, who did not participate in
deliberations, to supply the evidence necessary to challenge a
jury verdict pursuant to Evid.R. 606(B).
While I share the concern of the majority that allowing an
alternate juror to provide the evidence needed to inquire into a
jury's verdict could easily allow a single disgruntled alternate
juror to attack a jury verdict, I believe that this risk is
outweighed by the right of the parties to a jury free of
misconduct. Section 5, Article I of the Ohio Constitution
guarantees the right to a trial by jury, and this right carries with
it by necessary implication the right to a trial by a jury of
unbiased and unprejudiced jurors. Lingafelter v. Moore (1917),
95 Ohio St. 384, 117N.E. 16.
Here, the appellate court found that there had been juror
misconduct during the trial and that such misconduct was
prejudicial to the defendant. I agree with the court of appeals
-31-
that Evid.R.-606(B) should be interpreted to allow testimony of
an alternate juror as sufficient aliunde evidence to inquire into
the validity of a jury verdict.
For these reasons, I would affirm the judgment of the court of
appeals with respect to the issue of juror misconduct. .
COOK, J., concurring in part and dissenting in part.
i. Aliunde Evidence/Juror Misconduct
The majority's syllabus suggests that an alternate juror's
testimony can never be sufficient “outside evidence" under
Evid.R. 606(B) to permit jurors to testify regarding extraneous
prejudicial information. Like Chief Justice Moyer, I am not
convinced that a discharged alternate juror's status--the status
of having once served as an alternate juror--should in every
case preclude the trial court from relying on that individual's
testimony to trigger an inquiry into the validity of a verdict.
Under Civ.R. 47(C), "an alternate juror who does not replace
a regular juror shall be discharged after the jury retires to
consider its verdict." A discharged alternate juror thus no
longer possesses “the same functions, powers, facilities, and
privileges as the regular jurors." Jd. A discharged alternate
juror is thus no longer a "juror" for purposes of the Civil Rules.
And I see no compelling reason to treat a discharged alternate
juror as a "juror" under the aliunde rule either, since this
evidentiary rule is designed to protect the sanctity of the
deliberative process--a process in which the discharged
alternate juror did not participate. Accord State v. Rudge
(1993), 89 Ohio App. 3d 429, 437, 624 N.E.2d 1069, 1074
("Alternate jurors who are not present during deliberations and
-32-
do not participate in rendering the verdict are not members of
the trial jury for purposes of the aliunde rule").
Though the trial court in this case ultimately rejected Rudge
and concluded that it could not use the alternate's affidavit as
the basis to examine the jurors, the trial court also determined
that even if the alternate's affidavit satisfied the aliunde rule,
the juror examination revealed that Reiner suffered no
prejudice. We review the trial court's decision denying Reiner's
motion for a new trial on an abuse-of-discretion standard. State
v. Schiebel (1990), 55 Ohio St. 3d 71, 564 N.E.2d 54,
paragraph one of the syllabus. Without mentioning this
deferential standard of review, the majority of the court of
appeals concluded that what occurred was "by definition * * *
prejudicial" to Reiner. The dissenting judge on the appellate
panel noted that Reiner bore the burden of proving that any
unauthorized communications with jurors resulted in actual
juror partiality, and concluded that Reiner failed to meet his
burden. I agree. As the trial judge stated, all of the jurors
"uniformly denied" that any improper communication with the
alternate juror affected their verdict.
Accordingly, like the majority, I would reverse the judgment
of the court of appeals and reinstate the judgment of the trial
court denying Reiner's motion for a new trial on the basis of
juror misconduct. However, I do not join the majority's
syllabus, because I share Chief Justice Moyer's view that the
testimony of a discharged alternate juror is not categorically
insufficient aliunde evidence for purposes of Evid.R. 606(B).
Il. The Grant of Immunity to Susan Batt
I dissent from the majority's resolution of the immunity issue.
The majority concludes that the trial court's grant of immunity
to Susan Batt was unlawful for two reasons. First, the majority
concludes that Batt did not have a valid Fifth Amendment
privilege against self-incrimination. Second, the majority
decides that the grant of immunity that followed from this
apparently invalid privilege resulted in "serious prejudice" to
Reiner. I respectfully disagree on both counts.
A. Batt's Entitlement to the Fifth Amendment Privilege
I agree with the majority that the Fifth Amendment privilege
against self-incrimination is "confined to instances where the
witness has reasonable cause to apprehend danger from a
direct answer." (Emphasis added.) Hoffman v. United States
(1951), 341 U.S. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed. 1118,
1124. But the majority applies an inapposite test for
"reasonable cause," deciding that "Susan Batt's testimony did
not incriminate her because she denied any involvement in the
abuse."
A witness's denial of culpability regarding an offense should
not preclude the witness from asserting the privilege against
self-incrimination. "The privilege afforded not only extends to
answers that would in themselves support a conviction * * *
but likewise embraces those which would furnish a link in the
chain of evidence needed to prosecute the claimant * * * ." Jd.
There are many situations in which a witness could deny guilt
but could nonetheless furnish a self-incriminating “link in the
chain" if compelled to answer a particular question in court.
Witnesses who deny ultimate culpability for the defendant's
alleged offense should not be categorically denied access to the
Fifth Amendment privilege.
The Hoffman case cited by the majority reinforces my view
that the "reasonable cause" standard for asserting the privilege
is not as the majority opinion suggests. In Hoffman, the United
States Supreme Court noted that, "if the witness, upon
interposing his claim [of privilege], were required to prove the
hazard [of incrimination] in the sense in which a claim is
usually required to be established in court, he would be
compelled to surrender the very protection which the privilege
is designed to guarantee. To sustain the privilege, it need only
be evident from the implications of the question, in the setting
in which it is asked, that a responsive answer to the question or
an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result. The trial
judge in appraising the claim 'must be governed as much by his
personal perception of the peculiarities of the case as by the
facts actually in evidence.'" (Emphasis added.) Jd., 341 U.S. at
486-487, 71 S. Ct. at 818, 95 L. Ed. at 1124, quoting Ex parte
Irvine (S.D.Ohio 1896), 74 F. 954, 960.
In the case at bar, Batt had “reasonable cause" to assert the
privilege against self-incrimination. Defense counsel's
announced theory of the case was that Batt, not Reiner, was
responsible not only for the alleged crime against Alex, but
also for the uncharged injuries suffered by Alex's sibling.
Given this, and given the statements by defense counsel
warning the trial court that a grant of immunity would preclude
a later trial against Batt for Alex's death, I agree with the trial
court and the court of appeals that Batt's assertion of the Fifth
Amendment privilege was amply supported by the "reasonable
cause" Hoffman requires.
B. The Trial Court's Grant of Immunity
Having rejected Batt's entitlement to the privilege against
self-incrimination, the majority also concludes that “the
wrongful grant of immunity resulted in serious prejudice to the
defendant." To support this conclusion, the majority claims
that, "when the court granted her immunity, the court in effect
was telling the jury that Susan Batt did not cause Alex's
injuries." (Emphasis added.)
Since the trial court's decision to grant or deny immunity under
R.C. 2945.44 is reviewable only for an abuse of discretion,-
State ex rel. Ney v. Niehaus (1987), 33 Ohio St. 3d 118, 119,
515 N.E.2d 914, 916, I would not reverse that decision on such
speculative grounds. The majority claims that the grant of
immunity "told" the jury that Batt was faultless. It is equally
possible--if not more likely--that the jury would regard Batt as
less credible, and a more likely source of Alex's injuries, after
the trial court's grant of immunity. After all, a grant of
immunity compels testimony from a witness who has
something potentially self-incriminating to say- R.C.
2945-44¢A). Regardless, I would not substitute this court's
judgment for the trial court's on the basis of such speculation.
The majority also decides that, to further the administration of
justice, "the jury should have been able to hear and evaluate all
the evidence to decide whether someone other than Matthew
Reiner was responsible for Alex's death." (Emphasis added.) I
agree, but I fail to see how the trial court's grant of immunity
to Batt here did anything to restrict the trial evidence. The jury
heard Batt's immunized testimony. The trial court's grant of
immunity did not immunize Batt from testifying--it "compelled
the witness to answer." R.C. 2945.44(A).
Batt had reasonable cause to assert her Fifth Amendment
privilege. The trial court did not abuse its discretion or
prejudice Reiner in deciding to grant Batt transactional
in A En
immunity in compliance with R.C. 2945.44. Accordingly, I
dissent from the majority's conclusion that the trial court's grant
of immunity was erroneous, and would affirm the court of
appeals' decision on this issue.
Court of hana of Ohio, Sixth District, Lucas County.
STATE of Ohio, Appellee,
Matthew REINER, Appellant.
No. L-97-1002.
Dec. 18, 1998.
Julia R. Bates, prosecuting attorney, and J. Christopher
Anderson, for appellee.
Samuel Z. Kaplan, Richard Walinski, Fritz Byers, and
Robert Z. Kaplan, for appellant.
OPINION AND JUDGMENT ENTRY
SHERCK.
This appeal comes to us from the Lucas County Court of
Common Pleas. There, following a jury trial, appellant was
convicted of manslaughter in the "shaken baby” death of his
two-month old son. Because prejudicial juror misconduct
occurred during the course of the trial, we reverse appellant's
conviction.
Appellant, Matthew Reiner, is an engineer. His wife, Dr.
Deborah Reiner, is a dentist. The couple was already the
parents of a two-year old daughter when, on June 15, 1995,
Deborah Reiner delivered twins, Alex and Derek. Although
slightly premature, both twins were healthy.
Following the birth of the twins, both parents took time off
from work to care for them. Soon, however, they sought the
services of a nanny. After a brief search, the couple hired
Susan Batt; she began to work under Deborah Reiner's
supervision on July 25, 1995. This arrangement continued
until August 14, 1995, when Deborah Reiner returned to
work. During the weekend of August 12, twin Alex took ill.
On Sunday, August 13, his mother took him to an outpatient
clinic. Deborah Reiner told the clinic doctor that Alex had
vomited four times over the weekend. Alex had a
temperature of one hundred two degrees at the time of his
examination. The clinic doctor diagnosed Alex with probable
gastroenteritis, recommending Tylenol and a fluid to prevent
dehydration.
On August 16, 1995, both twins were examined by their
regular pediatrician during a well-baby examination. The
results for both were unremarkable. Deborah Reiner reported
that Alex improved throughout the week and appeared to
have recovered fully by the following Monday.
Wednesday, August 23, was Deborah Reiner's regular day
off. That day, she cared for the children, later reporting that
Alex seemed "achy" again, though he showed no signs of
fever. On Friday, August 25, Susan Batt called Deborah
Reiner to report that Alex was again vomiting. At Susan
Batt's request, Deborah Reiner's mother helped care for the
children on Friday afternoon. Over the weekend, Alex
remained ill, throwing up, but still showing no signs of fever.
On Monday, when Deborah Reiner returned home from
work, Susan Batt reported to her that Alex had eaten well
and had slept for two five-hour periods. Susan Batt left the
Reiner household between 5:30 and 6:00 p.m. Shortly
thereafter, Deborah Reiner, concerned that Alex had slept so
long, called a friend who was a Dayton emergency room
physician. As the two spoke, the physician directed Deborah
Reiner to examine Alex. The examination revealed nothing
unusual, but the physician suggested that Reiner take Alex to
a pediatrician the next day. Reiner reported that during the
examination, Alex was taking a bottle.
Shortly after 6:30 p.m., Deborah Reiner's parents came to
the home, returning Reiner's two-year old who had spent the
day with them. Her parents remained there until 7:30 p.m.,
when appellant came home. At 9:00 p.m., Alex again
vomited. At approximately 10:30 p.m., appellant put both
twins to bed; the Reiners then prepared to go to bed
themselves. According to appellant, Alex was whimpering
when appellant and his wife lay down. Volunteering to
comfort the child, appellant then took Alex from his bed to a
downstairs room and placed Alex face down on his chest.
Appellant stated that Alex could not get comfortable. After
about a half hour, Alex's breathing became strained and he
became unresponsive. Appellant then took the child to his
bedroom, awakened his wife and called 911.
During the call to 911, appellant reported Alex's color as
ashen and that he did not appear to be breathing. The
emergency services operator directed the Reiners to perform
CPR until emergency medical technicians arrived. Moments
- later, when the EMTs arrived, they found Alex without a
pulse or respiration and with blue skin. They transported
Alex to a nearby hospital where he was placed on a
respirator. An initial EEG, however, showed no brain
activity. Approximately two days later, after a second EEG
showed a "flat line", Alex was declared brain dead and
removed from life support.
An autopsy conducted by Lucas County Coroner Dr. James
Patrick revealed retinal hemorrhages in both eyes, extensive
subdural and subarachnoid bleeding, and massive brain
swelling. The examination also revealed evidence of an
earlier cerebral hemorrhage. The coroner concluded that
Alex suffered from "shaken baby syndrome"--the result of
child abuse. Dr. Patrick set the time of injury as the evening
of Monday, August 28, 1995. Patrick estimated that Alex
was shaken within no more than three hours of his
respiratory arrest and, in all likelihood, within minutes of the
onset of the arrest.
On Dr. Patrick's testimony and appellant's admission that he
alone was with Alex during the critical time, a Lucas County
Grand Jury indicted appellant on a single count of
involuntary manslaughter. Appellant pled not guilty and the
matter proceeded to a jury trial.
At trial, appellant did not contest the fact that Alex was a
victim of shaken baby syndrome or that he was alone with
Alex for the half hour immediately before his collapse.
Instead, the defense relied on medical testimony
contradicting Dr. Patrick's opinion concerning the timing of
the injury.
Appellant's experts testified that, if the cessation of Alex's
respiratory function was the result of pressure caused by
cerebral edema (brain swelling), the triggering event could
have occurred several hours before the respiratory arrest.
The significance of this was that the injury could have
occurred during the day while Alex was in the care of Susan
Batt. Batt, they pointed out, had declined to testify at prior
hearings on grounds that she might incriminate herself.
However, at trial, the state asked for and the trial court
granted Susan Batt immunity from prosecution. Under such
immunity, Batt denied any involvement with Alex Reiner's
death.
On deliberation, the jury found appellant guilty as charged.
The trial court denied a defense motion for a judgment of
acquittal or a new trial. Ultimately, the court sentenced
appellant to an indefinite period of incarceration of five to
twenty-five years. However, this sentence was suspended
and appellant was placed on five years probation.
Appellant now appeals his conviction, setting forth the
following nine assignments of error:
"1. The verdict is contrary to the evidence's manifest
weight.
-42- —
"2. The trial curt committed prejudicial error by granting
immunity to a witness who had no claim of Fifth-
Amendment privilege because her self- exonerating
testimony would not tend to incriminate her.
*3 "3. The trial court committed prejudicial error by not
granting defendant's motion for new trial on the ground of
prosecutorial misconduct involving the State's improper
request for immunity for Susan Batt to procure her
testimony, despite the prosecutor's knowledge that Batt
was not entitled to such immunity.
"4. The trial court committed prejudicial error by refusing
to strike the opinions about axonal shearing being the
mechanism that caused the respiratory arrest and eventual
death of Alex Reiner.
"5. The trial court committed prejudicial [sic ] failing to
permit the defendant to prove the fact and content of the
prior inconsistent statement of the Lucas County Coroner
during his grand jury testimony.
"6. The trial court committed prejudicial error in refusing
to strike the opinion of the State's expert witness Dr.
Elizabeth K. Balraj, M.D. whose opinion regarding a
causative event was expressed in terms of mere possibility,
not probability.
"7. The court committed reversible error in refusing to give
the instruction proposed by the defense on the permissible
inference to be drawn from Susan Batt's silence in the face
of an accusation of guilt.
"8. The trial court committed prejudicial error in refusing
to grant defendant's motion for judgment of acquittal at the
close of the state's case- in-chief.
"9. The trial court committed prejudicial error by not
granting defendant's motion for a new trial on the ground
of juror misconduct."
We shall reserve discussion of appellant's first assignment
of error until later.
1.
In his second and third assignments of error, appellant
attacks the trial court's decision to grant Susan Batt
immunity. Appellant suggests that the trial court's decision to
grant immunity was unlawful and that the state committed
prosecutorial misconduct when it requested the grant.
In Ohio, a trial court's authority to grant immunity is derived
solely from statute. State ex rel. Leis v. Outcalt (1982), 1
Ohio St.3d 147, 148, 438 N.E.2d 443. R.C. 2945.44
provides:
"(A) In any criminal proceeding in this state or in any
criminal or civil proceeding brought pursuant to sections
2923.31 to 2923.36 of the Revised Code, if a witness
refuses to answer or produce information on the basis of
his privilege against self-incrimination, the court of
common pleas of the county in which the proceeding is
being held, unless it finds that to do so would not further
the administration of justice, shall compel the witness to
answer or produce the information, if both of the following
apply:
"(1) The prosecuting attorney of the county in which the
proceedings are being held makes a written request to the
court of common pleas to order the witness to answer or
produce the information, notwithstanding his claim of
privilege;
"(2) The court of common pleas informs the witness that
by answering, or producing the information he will receive
immunity under division (B) of this section.
"(B) If, but for this section, the witness would have been
privileged to withhold an answer or any information given
in any criminal proceeding, and he complies with an order
under division (A) of this section compelling him to give
an answer or produce any information, he shall not be
prosecuted or subjected to any criminal penalty in the
courts of this state for or on account of any transaction or
matter concerning which, in compliance with the order, he
gave an answer or produced any information.
"(C) A witness granted immunity under this section may be
subjected to a criminal penalty for any violation of section
2921.11, 2921.12, or 2921.13 of the Revised Code, or for
contempt committed in answering, failing to answer, or
failing to produce information in compliance with the
order."
Appellant argues that even if immunity is requested by the
prosecuting attorney pursuant to R.C. 2945.44(A)(1) and
even if the trial court, pursuant to section (A), concludes that
the testimony furthers the administration of justice, section
(B) demands a threshold determination as to whether the
claim of privilege is valid. In support of this position,
appellant cites Strate v. Landrum (1990), 53 Ohio St.3d 107,
120, 559 N.E.2d 710; McGorray v. Sutter (1909), 80 Ohio
St. 400, 89 N.E. 10, paragraph two of the syllabus and State
v. Jenkins (1984), 15 Ohio St.3d 164, 228, 473 N.E.2d 264.
No valid privilege existed for Susan Batt, according to
appellant, because the state indicated that it had no intenuion
of prosecuting her, the prosecutor believed the testimony she
would give would only serve to exonerate her, and the
assertion of the privilege was only on "advice of counsel."
The privilege, appellant insists, is only available when a
witness has a "real and appreciable” fear of incrimination
and prosecution. See Jenkins at 228, 473 N.E.2d 264.
We agree with appellant that the language of R.C.
2945.44(B) implies that a trial court make some
determination of the validity of the privilege against self-
incrimination antecedent to a grant of statutory immunity.
“The witness's claim alone is not adequate." Landrwmn at
120, 559 N.E.2d 710. We cannot, however, agree with
appellant that such a determination must be the result of a
formai procedure or must be patent. It is sufficient that the
record contains information by which, “ * * * the trial court
could conclude thai it did not clearly appear that the witness
was mistaken in claiming the Fifth Amendment privilege.”
Landrum at 121, 559 N.E.2d 710, citing Hoffman v. United
States (1951), 341 U.S. 479, 484, 71 S.Ct. 814, 95 L.Ed.
1118. Furthermore, we cannot examine the trial court's
decision on this matter using information which was not
before the court when it made its ruling, as it would be
fundamentally unfair to find error based on hindsight.
In beginning our review of the trial court's handling of this
matter, we initially note that Susan Batt's lack of culpability
was not raised at trial; in fact, quite the opposite contention
was rigorously asserted. Before the bench, the focus of
appellant's argument was whether granting Ms. Batt
immunity would "further the administration of justice."
The trial court was aware that the defense, in its opening
Statement, sought to blame Ms. Batt for Alex's death.
Attorneys for the defense, an attorney representing Deborah
Reiner, and the guardian ad litem for the children argued that
granting Susan Batt transactional immunity would preclude
her later trial for Alex's death. Given this, it was certainly
understandable that Susan Batt's counsel would advise her to
exercise her nght to make no statements which might tend to
incriminate her. Furthermore, the court had no knowledge at
this point as to what evidence the defense possessed
implicating Susan Batt. Likewise, even if as anticipated,
Susan Batt denied culpability in Alex's death, it was not clear
what inculpatory statements she might make when
challenged during cross-examination. Under these
circumstances, we conclude that when the tral court
rendered its decision, it did not clearly appear that Susan
Batt's assertion of her Fifth Amendment right against self-
incrimination was mistaken. Accordingly, appellant's second
assignment of error is not well- taken.
Similarly, since the state was aware of no information the
defense might possess inculpating Susan Batt, the
prosecution was guilty of no misconduct in requesting
immunity. Accordingly, appellant's third assignment of error
is also not well-taken.
II.
In his fourth assignment of error, appellant complains that
the trial court erred in denying his motion to strike certain
expert testimony which indicated that axonal shearing was
the cause of Alex Reiner's death.
Both sides agreed that Alex was the victim of "shaken baby
syndrome." Coroner Patrick testified that muscular
development in infants is not great and brain tissue is soft.
When shaken, the baby's head will " * * * flop all the way
back." Inside the baby's head during such shaking, the brain
and the skull, " * * * get out of phase." Given sufficient
force, this can cause tearing of the blood vessels which
connect the brain to the "dura" which surrounds it. The same
forces act on the eyes to cause retinal hemorrhages.
In some circumstances, violent shaking can shear, what Dr.
Patrick characterized as, " * * * the circuits that control * * *
breathing and consciousness * * *." This can result in death.
Other witnesses termed such disruption as axonal shearing
(referring to axons which conduct nerve impulses away from
cells).
The critical issue at trial was the amount of time between
the trauma and the respiratory arrest. Experts from both the
state and the defense agreed that when shearing occurs in
that portion of the brain which controls respiratory function,
arrest would be nearly immediate. Appellant, by his own
admission, was the only person with Alex during the last half
hour before respiratory arrest. An immediate arrest would,
therefore, be inculpatory to him.
Alternatively, if arrest was the result of cerebral edema
(swelling of the brain), the process could have taken several
hours between the infliction of the trauma and the respiratory
arrest. If this was the case, persons other than appellant,
including babysitter Susan Batt, could not be excluded
because of a lack of opportunity.
Coroner Patrick testified that his autopsy of Alex Reiner
revealed hemorrhages in both retinas, massive bleeding
below the dura and diffuse bleeding below the arachnoid
(surface of the brain). Additionally, Dr. Patrick
microscopically examined tissue taken from Alex Reiner's
brain; this examination showed damage to the brain cells
themselves. As a result, the coroner concluded that Alex's
injuries were massive and that the onset of respiratory arrest
would have been sudden. Patrick opined that arrest would
have likely been immediate, but certainly no more than three
hours after the injury. This opinion was supported by the
testimony of the Cuyahoga county coroner and a deputy
coroner from Franklin county who testified for the state in
the case.
in contrast, the defense called medical experts who testified
that the brain's respiratory function was located in its stem
and that a determination of axonal shearing affecting the
respiratory system could not be certain absent tissue samples
from this area. No such samples were taken in this case.
Citing Evid.R. 702 and Daubert v. Merrell Dow (1993), 509
U.S. 590, 593, the defense moved to strike testimony
concerning axonal shearing as a cause of death, arguing that,
without tissue slides of the brain stem, a conclusion that
Alex Reiner died of axonal shearing was not objectively
verifiable as demanded by Evid.R. 702(C)(1). The tal court
rejected this motion.
Evid.R. 702 permits a witness to testify as an expert if (1)
the topic of the testimony is beyond the experience or
knowledge of a lay person, Evid.R. 702(A); (2) the witness
has specialized knowledge concerning the topic, Evid.R.
702(B); and (3) the testimony is based on reliable scientific,
technical or other specialized knowledge. Evid.R. 702(C). A
procedure, test or experiment is “reliable” only if:
"(C)(1) The theory upon which the procedure, test, or
experiment is based is objectively verifiable or is validly
derived from widely accepted knowledge, facts, or
principles;
"(2) The design of the procedure, test, or experiment
reliably implements the theory;
"(3) The particular procedure, test, or experiment was
conducted in a way that will yield an accurate result."
The trial court acts as the "gatekeeper" of scientific and
technical information which may be presented to a jury. The
court, in its discretion, must make a threshold determination
whether scientific or technical testimony meets the Evid.R.
702(C)(1) through (3) criteria. Franks v. Lopez (1997), 121
Ohio App.3d 523, 529, 700 N.E.2d 385, citing State v.
Pierce (1992), 64 Ohio St.3d 490, 494, 597 N.E.2d 107.
In this matter, the expertise of Dr. Patrick and the other two
county coroners is unchallenged. Each testified that the
massive trauma to Alex Reiner's brain would have led to an
almost immediate unconsciousness and respiratory arrest.
Dr. Patrick explained the engine for this distress, in lay
terms, as a disruption of the electrical circuits of the brain
which control breathing. The other two coroners used the
phrase “axonal shearing.” The three agreed that this
disruption or shearing could be reasonably inferred from the
evidence admitted.
Arrayed against this testimony was that of three defense
medical experts. They testified that the preferred method of
diagnosing axonal shearing involving the respiratory
function was to examine a tissue slide from the brain stem.
None of these witnesses testified that axonal shearing could
not be diagnosed without brain stem tissue slides and only
one defense expert testified that she, personally, would not
diagnose axonal shearing in the brain stem without a tissue
sample from that area.
The testimony of Dr. Patrick and two other forensic
pathologists that the evidence admitted was sufficient to
establish the time of death within the parameters set forth
demonstrates that Dr. Patrick's conclusion was at once
reliable and independently verifiable. Therefore, the trial
court properly determined that the defense's challenges to the
lack of brain stem samples went to weight rather than
admissibility. Consequently, the trial court did not abuse its
discretion in denying appellant's motion to strike.
Accordingly, appellant's fourth assignment of error is not
well-taken.
Ii.
Appellant's fifth and sixth assignments of error challenge
certain trial court evidentiary rulings. In his fifth assignment
of error, appellant contends he was prejudiced by the trial
court's denial of his motion to admit Dr. Patrick's grand jury
testimony into evidence as a prior inconsistent statement. In
his sixth assignment of error, he asserts that the trial court
erred by refusing to strike certain testimony by a state's
expert.
Rulings on the admission of evidence during trial rests in
the sound discretion of the court and will not be reversed
absent an abuse of that discretion. State v. Maurer (1984),
15 Ohio St.3d 239, 265, 473 N.E.2d 768. An abuse of
discretion is more than an error of law orof judgment, the
term connotes that the court's attitude is arbitrary,
unreasonable or unconscionable. State v. Long (1978), 53
Ohio St.2d 91, 98, 372 N.E.2d 804.
-51-
At trial, the defense cross-examined Dr. Patrick extensively
concerning his grand jury testimony. The defense
characterized his testimony there as being that swelling in
the brain was the cause of Alex Reiner's loss of
consciousness and respiratory arrest. Dr. Patrick conceded
that he had told the grand jury that edema played a part in
Alex's arrest and loss of consciousness. On redirect, Dr.
Patrick stated that he had also testified to the grand jury
about his conclusion that the "circuits of the brain" were
disrupted and that served as a contributory factor in Alex's
death. Later, appellant sought to introduce a portion of Dr.
Patrick's grand jury testimony as a prior inconsistent
statement. Appellant maintains the trial court erred in
denying introduction of this evidence.
Evid.R. 613(B) sets the foundational requirements for the
introduction of a witness's prior inconsistent statements:
"(1) the witness is presented with the former statement; (2)
the witness is asked whether he made the statement; (3) the
witness is given an opportunity to admit, deny or explain
the statement; and (4) the opposing party is given an
opportunity to interrogate the witness on the inconsistent
Statement." State v. Mack (1995), 73 Ohio St.3d 502, 515,
653 N.E.2d 329, citing State v. Theuring (1988), 46 Ohio
App.3d 152, 155, 546 N.E.2d 436.
Additionally, Ohio continues to follow the common law rule
that the inconsistent statement itself is not admissible if the
witness admits making such a statement. Jd.; State v.
Johnson (1983), 10 Ohio App.3d 14, 17, 460 N.E.2d 625.
Here, Dr. Patrick admitted making the statements before the
grand jury which appellant alleged were inconsistent. ;
-52-
Therefore, the trial court did not abuse its discretion in
refusing to admit into evidence the statement itself.
Accordingly, appellant's fifth assignment of error is not well-
taken.
Appetiant also alleges that the trial court should have struck
the testimony of Cuyahoga County Coroner Dr. Elizabeth
Balraj concerning the timing of Alex Reiner's collapse as not
having been testified to as "probable." This allegation,
however, is factually incorrect. A hypothetical question was
directed to Dr. Balraj who was asked, given the facts
assumed, if she could state an opinion "to a reasonable
degree of medical certainty." She responded that she could
and proceeded to give her opinion.
Dr. Balraj testified that the type of injuries Alex sustained
and the other information provided "is consistent with the
child sustaining injury sometime between 10:30 p.m. and
11:00 p.m." The fact that she used the word "consistent"
rather than "probable" is not fatal when her testimony is
taken in context. Ulmer v. Ackerman (1993), 87 Ohio
App.3d 137, 144, 621 N.E.2d 1315. In any event, this
testimony was cumulative and any misstatement would be
~ harmless beyond a reasonable doubt. Accordingly,
appellant's sixth assignment of error is not well-taken.
IV.
Admitted at trial was an account of a confrontation between
Deborah Reiner and Susan Batt which occurred after a
juvenile court hearing. During the juvenile court hearing,
Batt invoked her Fifth Amendment privilege and refused to
answer questions concerning Alex Reiner's death. She
exercised this right on the advice of counsel. Following the
hearing, Deborah-Reiner confronted Susan Batt and asked
her, "if she did it on purpose or if it was an accident." Susan
Batt said nothing and walked away.
The defense characterized this encounter as a tacit
admission of guilt by Susan Batt and requested a jury
instruction to the effect that Susan Batt'ssilence under these
circumstances gave rise to a permissible inference that this
was an admission of guilt or, alternatively, could be
considered in assessing Susan Batt's credibility. The trial
court refused to include appellant's proposed instruction and
appellant now suggests that this constituted error.
If requested, at least in substance, special instructions to a
jury must be included in the charge if they are correct
statements of law, pertinent and timely provided. State v.
Epperson (1969), 20 Ohio St.2d 59, 253 N.E.2d,785,
paragraph one of the syllabus, overruled on other grounds
State v. Carter (1995), 72 Ohio St.3d 545, 651 N.E.2d 965;
State v. Guster (1981), 66 Ohio St.2d 266, 269-270, 421
N.E.2d 157, citing State v. Matthew (1976), 47 Ohio St.2d
119, 121, 351 N.E.2d 98.
Appellant asserts that Ohio recognizes admissions by silence
when one fails to speak under circumstances when that
person would naturally be expected to deny. However,
appellee properly points out that Evid.R. 801(D)(2)(b),
which is the authority appellant cited to the trial court as
legal justification for this instruction, applies only to a party
opponent. See Staff Notes to Evid.R. 801(D)@). Appellant
presents no authority to rebut this.1 However, in his reply
brief, appellant insists that the instruction would still be
appropriate under Evid.R. 613(B) as a prior inconsistent
statement of a witness. In this regard, appellant confuses the
admissibility of inconsistent statements for impeachment and
his right to such an instruction. The account of Susan Batt's
silence in the face of accusation was admitted. However, no
special instruction was necessary because, as impeachment
material, the incident was substantially covered by the
general charge on the assessment of credibility of witnesses.
Therefore, the trial court acted within its discretion in
denying appellant's request for the special instruction.
Accordingly, appellant's seventh assignment of error is not
well-taken.
V.
In his eighth assignment of error, appellant contends that the
trial court erred in overruling his motion for a judgment of
acquittal at the close of the state's case-in-chief. Appellant
argues that had the trial court excluded Dr. Patrick's
testimony (which gave the cause and time frame of Alex's
respiratory arrest), the state would not have made a prima
facie case and the motion pursuant to Crim.R. 29 should
have been granted. See State v. Bridgeman (1978), 55 Ohio
St.2d 261, 381 N.E.2d 184, syllabus.
1 The cases appellant cites invariably involve tacit admissions by a
party or the agent of a party. State v. Matthew, supra (defendant);
United States Battery Service Co. v. Union (1930), 8 Ohio L. Abs. 733
(agent of defendant); State v. Jackson (1951), 112 N.E.2d 80, 64 Ohio
L. Abs. 413 (defendant); Dietz v. Chandler (1934), 56 N.E.2d 937, 40
Ohio L. Abs. 10 (defendant); Reams v. State ex rel. Favors (1936), 53
Ohio App. 19, 4 N.E.2d 151 (defendant).
AL
Appellant is correct. Had Dr. Patrick's testimony and that of
the other state experts been stricken, appellant would have
been entitled to a judgment of acquittal. However, the court
acted properly in not striking the testimony, as we previously
discussed in our consideration of Assignment of Error No. 4.
Therefore, appellant was not entitled to have his Crim.R. 29
motion sustained. Accordingly, his eighth assignment of
error is not well-taken.
VI.
Appellant's ninth assignment of error arises out of the
activities of an altermate juror prior to the submission of the
case to the jury. Against the specific and repeated instruction
of the court, one of the alternate jurors engaged several other
members of the panel in conversation concerning the
credibility of witnesses, lobbied for acquittal, commented on
defense counsel and reported rumors of the amount they
were paid. ~
Sometime after the trial and verdict, this alternate juror
came to the defense and executed an affidavit concerning his
activity during the trial. Appellant submitted this affidavit to
the court along with a motion for a new trial based on juror
misconduct; the court ordered a full hearing. Each of the
jurors who deliberated were called and asked about the
activities of the alternate juror. Some confirmed the alternate
juror's improper conduct. All denied that they had been in
any way influenced by that conduct during their
deliberations. On thiis testimony, the trial court overruled
appellant's motion for a new trial. This, appellant insists, was
prejudicial error.
-56-
The axiom, a jury may not impeach its own verdict, is
founded in a number of public policies including:
"* * * '(]) discouraging harassment of jurors by losing
parties eager to have the verdict set aside; (2) encouraging
free and open discussion among jurors; (3) reducing
incentives for jury tampering; (4) promoting verdict
finality; and (5) maintaining the viability of the jury as a
judicial decision- making body.' ” State v. Rudge (1993),
89 Ohio App.3d 429, 438, 624 N.E.2d 1069, quoting State
v. Shillcut (1984), 119 Wis.2d 788, 794, 350 N.W.2d 686.
The modern incarnation of the axiom is found in Evid.R.
606(B) which relates to the competency of a juror as a
witness. The rule provides:
"(B) Inquiry into validity of verdict or indictment. Upon an
inquiry into the validity of a verdict or indictment, a juror
may not testify as to any matter or statement occurring
during the course of the jury's deliberations or to the effect of
anything upon his or any other juror's mind or emotions as
influencing him to assent to or dissent from the verdict or
indictment or concerning his mental processes in connection
therewith. A juror may testify on the question whether
extraneous prejudicial information was improperly brought
to the jury's attention or whether any outside influence was
improperly brought to bear on any juror, only after some
outside evidence of that act or event has been presented.
However a juror may testify without the presentation of any
outside evidence concerning any threat, any bribe, any
attempted threat or bribe, or any improprieties of any officer
of the court. His affidavit or evidence of any statement by -
him concerning a matter about which he would be precluded
from testifying will not be received for these purposes."
-57-
The section of the rule which requires outside evidence
antecedent to an inquiry of jurors concerning extraneous
prejudicial information or influence received during
deliberations is the codification of the "aliunde rule" which
has long been the law of Ohio. Wicker v. City of Cleveland
(1984), 150 Ohio St. 434, 83 N.E.2d 56, syllabus; Farrer v.
State of Ohio (1853), 2 Ohio St. 54, syllabus. Before the trial
court and on appeal, the state argued no inquiry could be
made of the jurors here because the alternate juror's affidavit
was insufficient to satisfy the threshold of the rule. Appellant
responded citing State v. Rudge, supra, at 437, 624 N.E.2d
1069, for the proposition that an alternate juror who does not
take part in deliberations is not a "member of the jury" for
purposes of the aliunde rule or, alternatively, that Evid.R.
606(B) was inapplicable.
In its written decision on the motion for a new trial, the trial
court announced that it had weighed these arguments and
found Rudge unpersuasive. For this reason, the court
concluded that it should not have made any inquiry to the
jurors as to the alternate juror's remarks. Additionally, the
court found that, even if the alternate juror's affidavit did
satisfy the aliunde rule, the inquiry to jurors about the
alternative juror's conduct revealed nothing prejudicial to
appellant. Consequently, the court denied appellant's motion.
As the trial court noted, juror misconduct alone is not
sufficient to prejudice a defendant. Rudge at 442, 624
N.E.2d 1069; Irvin v. Dowd (1961), 366 U.S. 717, 722, 81
S.Ct. 1639, 6 L.Ed.2d 751. The misconduct must be of such
a nature that the impartiality of the jury is drawn into
question. What we believe is the proper analysis is stated in
Rudge, at 439, 624 N.E.2d 1069, quoting State v. LaRue
(1986), 68 Hawaii 575, 579. Referring to Hawaii Evid.R.
606, that court stated:
"[w]e cannot consider the jurors’ statement as to the effect of
the improper statement upon them. We can only consider
whether such a statement was made * * * and whether, given
the statement, we can say that appellant had a trial before an
impartial jury."
The trial court erred in rejecting State v. Rudge, supra.
Rudge holds that the purpose of the aliunde rule and Evid.R.
606(B) is to maintain the sanctity of the jury room and the
deliberations therein. Jd. at 439, 624 N.E.2d 1069. Whether
we adhere to the view that, procedurally, an alternative juror
is not a part of the jury for purposes of the aliunde rule or
that any occurrences outside the deliberative processes may
be evidence aliunde of impropriety, id. at 442-443, 624
N.E.2d 1069, we believe that the affidavit of the alternative
juror in the instant case was outside evidence of extraneous
prejudicial information improperly brought to the jury's
attention.2 Consequently, the trial court acted properly in the
first instance by deciding to go forward with an inquiry but
erred in the second instance when it determined that inquiry
was inappropriate.
More troublesome, however, is the trial court's ancillary
ruling that the inquiry failed to reveal that the alternative
2 We reject the view that Evid.R.606(B) is inapplicable here. In Rudge, the
“hang him now” statement was made by a juror who deliberated the defendant's
guilt. Here the untoward remarks came from an alternate juror who did not
deliberate, While the rule may not apply to clearly prejudicial statements made
by a juror prior to deliberations, it must be applied in this case, where it was not
known if the alternate’s improper remarks were heard by jurors.
juror's activities resulted in prejudice to appellant. The court
premised this conclusion on its determination that most of
the alternative juror's remarks were favorable to appellant.
A criminal defendant is entitled to be judged by an impartial
and disinterested jury. Jrvin v. Dowd, supra, at 722. It
follows that any event which tends to negate the jury's
impartiality or disinterestedness operates to the defendant's
prejudice. State v. Rudge provides form for our analysis, but
not a direct answer. In Rudge, the trial court declared a
mistrial based on testimony from some jurors that prior to
opening statements one of their number had said of the
capital murder defendant: "We could save a lot of time and
money and just hang him now.” On this remark, the appeals
court concluded that the trial court's decision to grant a
mistrial was within its discretion.
Our case is not as clear cut. The attitude expressed by the
Rudge juror clearly does not exhibit impartiality. Here, the
majority of the alternative juror's improper statements did
favor appellant. The only information he imparted which
might be considered negative to appellant was: 1) his
commenting favorably on Dr. Patrick's testimony; 2) his
conveying a rumor that the Reiners were paying their ~
defense team $100,000 and; 3)his disclosure that defense
attorney Robert Kaplan was such a "klutz" that he once
required medical attention for hitting himself in the face with
a tennis racket.
In analyzing the alternative juror's remarks, we must first
look at the nature of the statements, and then, without
considering the effect of these remarks on the other jurors’
deliberations, decide whether or not we can say with any
certainty that the defendant was afforded his Sixth
Amendment right to an impartial jury. Rudge at 439, 624
N.E.2d 1069.
On its face, the most damaging comment made by the
alternate juror was his initial remark that bolstered the
credibility of Dr. Patrick. Since the state's case rises or falls
on the coroner's testimony, any comment directed to this area
of evidence must be received with a critical eye.
However, when viewed in the factual context-of this trial,
the alternate juror's comments which favored the defense
were, in our view, injurious to appellant's cause. This is so
because of the way these comments folded into the course of
the proceedings. First, during voir dire, the alternate juror
revealed that he knew of Attorney Robert Kaplan;
specifically, he stated that he had seen Kaplan at the tennis
club. Second, the defense team in this case elected to employ
a “no holds barred" attack, frequently objecting to the
proceedings. Third, the case pitted the testimony of the
medical examiners against the testimony of the hired defense
experts. Fourth, the alternate juror then told other jurors that
the defense team was charging $100,000 for the trial. When
the alternate found out that he would not be allowed to
deliberate with other members of the panel, he announced
that the verdict would have to be not guilty. Finally, when
the individual jurors were later questioned at the post trial
hearing, one of them expressed to the court incredulity and
outright displeasure that the alternate was left on the panel
and not disqualified because of his knowledge of Kaplan.
One of the jurors even voiced suspicion that the alternate
juror was a defense "plant."
-61-
Given this factual setting, we glimpse a jury that: 1) knows
the alternate is acquainted with one of the defense lawyers,
2) witnesses an aggressive three member defense team |
belabor minute points of evidence, 3) is told by the alternate )
that the trial is costing the defendant $100,000 and their
verdict can only be not guilty, 4) is going to have to
determine the credibility of the defense expert, and 5)
suspects (at least, one of the members does) that the defense
may have been successful in "planting" the alternate. In this
climate, we look upon the alternate juror's report of hefty
defense fees with great concern. Under the circumstances,
such a report might well have been interpreted by the jury as
a defense attempt to "buy" an acquittal.3 Furthermore, such
Overt partisanship, coupled with the alternate juror's
prolonged improper conduct, could have (and did in the case
of one of the jurors) arouse a negative reaction from the jury.
Of particular concern to us, however, is the failure of the
jurors to abide by the court's instructions. Jurors were
repeatedly instructed not to discuss the case with anyone,
including each other, until it was submitted to them for
deliberation. In addition, the jury was repeatedly instructed
that should anyone attempt to discuss the case with them, it
should be immediately reported to the court.
The testimony from at least four jurors demonstrated that
the alternative juror had on numerous occasions violated the
3 At the postconviction hearing,attorney, Fritz Byers, represented to the
court that appellant’s total legal fees were $ 26,500. These were the fees
of attorney Samuel Z. Kaplan. According to Byers, he, Richard Walinski,
and Robert Kaplan volunteered their service.
court's instruction. If the testimony of the alternative juror is
to be credited, even more than these four jurors may have
been involved. Yet none of these jurors followed the court's
instruction to report such misconduct. This nonfeasance,
while passive in nature, is nevertheless misconduct on the
part of the other individual jurors. It supports the strong
suspicion that the panel was tainted by the alternate juror's
misconduct. Therefore, we can no longer say with certitude
that appellant's trial was before an impartial and disinterested
jury. This, by definition, is prejudicial to appellant.
Accordingly, his ninth assignment of error is found well-
taken.
Vil.
We have reserved our discussion of appellant's first
assignment of error until now. Appellant asserts his
conviction was against the manifest weight of the evidence.
The concept of manifest weight of the evidence is
distinguished from an examination of the sufficiency of the
evidence, see State v. Jenks (1991), 61 Ohio St.3d 259, 574
N.E.2d 492, paragraph two of the syllabus. When an
appellate court examines a case to determine whether a
verdict is against the manifest weight of the évidence, the
court sits as the "thirteenth juror." In order for an appellate
court to reverse the judgment on this basis, it must disagree
with the fact finder’s resolution of conflicting testimony.
State v. Thompkins (1997), 78. Ohio St.3d 380, 387, 678
N.E.2d 541. This by no means allows the reviewing court to
lightly substitute its judgment for that of the jury. Reversal
may only be had when:
"The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its
way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.
The discretionary power to grant a new trial should be
exercised only in the exceptional case in which the
evidence weighs heavily against the conviction." Jd.
quoting State v. Martin (1983), 20 Ohio App.3d 172, 175,
485 N.E.2d 717.
In the present case, the only real issue in dispute is the
amount of time elapsed between the trauma inflicted to Alex
Reiner and his respiratory arrest. Dr. Patrick, supported by
two other board certified pathologists, testified that this
period was from almost no time at all to a maximum of three
hours. During this time frame, Alex was either in the
company of both of his parents, or with appellant alone.
Appellant concedes he was alone with Alex during the half
hour immediately preceding arrest--the time during which
the state's experts testified injury most likely occurred.
In contradistinction, the defense experts hypothesized that if
Alex's respiratory arrest resulted from edema rather than
axonal shearing, the period of time could have been longer--
long enough so that some other party, specifically Susan
Batt, could have shaken him.
The experts on both sides of this matter hold impressive
credentials. We cannot say one side presented testimony
which was inherently more believable or more persuasive.
Given this, we cannot say that the jury clearly lost its way or
that a manifest miscarriage of justice resulted. Therefore, we
| _
-64-
conclude that the verdict was not against the manifest weight
of the evidence. Accordingly, appellant's final assignment of
error is not well-taken.
On consideration whereof, the judgment of the Lucas
County Court to Common Pleas is reversed. This case is
remanded for further proceedings consistent with this
opinion. Costs to appellee.
JUDGMENT REVERSED.
SHERCK, and EVANS, JJ., concur. HANDWORK, P.J.,
dissents and writes separately.
HANDWORK, P.J., dissenting.
For the reasons stated below, I respectfully dissent from the
majority's analysis and resolution of appellant's ninth
assignment of error and would affirm the trial court's denial
of appellant's motion for a new trial.
It is well established that a trial court's denial of a motion
for new trial will not be reversed on appeal absent an abuse
of discretion under the facts and circumstances of the case.
Toledo v. Stuart (1983), 11 Ohio App.3d 292; McDonald v.
Akron (1993), 86 Ohio App.3d 209, 210-211; Apaydin v.
Cleveland Clinic Found. (1995), 105 Ohio App.3d 149, 152.
The Ohio Supreme Court has repeatedly held that an abuse
of discretion involves more than an error of law or judgment
and to warrant reversal the trial court's action must be
arbitrary, unreasonable or unconscionable. Berk v. Matthews
(1990), 53 Ohio St.3d 161, 169. An appellate court is not
free to substitute its judgment for that of the trial judge. Jd.;
State v. Taylor (1991), 73-Ohio App.3d 827, 833. Reviewing
courts should defer to the trial court which had the
opportunity to hear and observe the demeanor of those
testifying and should defer to the trial court's judgment
concerning the credibility of jurors. Jd. "[F]indings of
impartiality should be set aside only where prejudice is
‘manifest.'" Irwin v. Dowd (1960), 366 U.S. 717, 724.
In State v. Phillips (1995), 74 Ohio St.3d 72, 88, the Ohio
Supreme Court stated:
“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.
Smith v. Phillips (1982), 455 U.S. 209, 215-216; Remmer
v. United States (1954), 347 U.S. 227, 229-230. In a
criminal case, any private communication * * * with a
juror during a trial about the matter pending before the jury
is, for obvious reasons, deemed presumptively prejudicial
* * *. [T]he burden rests heavily upon the Government to
establish, after notice to and hearing of the defendant, that
such contact with the juror was harmless to the defendant.
Id. The Sixth Circuit, however, has held that the defense
must prove that the juror has been biased. United States v.
Zelinka (C.A.6, 1988), 862 F.2d 92, 95, citing Smith v.
Phillips, supra 1; contra United States v. Littlefield (C.A.9,
1 In Zelinka, the Sixth Circuit analyzed the Supreme Court's
discussion in Smith v. Phillips (1982), 455 U.S. 209, 102 S.Ct. 940, 71
L.Ed.2d 78, and quoted the following: " "This Court has long held that
the remedy for allegations of juror partiality is a hearing in which the
defendant has the opportunity to prove actual bias.’ Jd. at 215." 862
F.2d at 95.
The Sixth Circuit then stated:
1985), 752 F.2d 1429, 1431. In cases involving outside
influences on jurors, trial courts are granted broad
discretion in dealing with the contact and determining
whether to deciare a mistrial or to replace an affected juror.
See United States v. Daniels (C.A.6, 1976), 52% F.2d 705,
709-710; United States v. Williams (C.A.D.C.1987), 822
F.2d 1174, 1189; Annotation (1992), 3 A.L.R.5th 963,
971, Section 2." (Parallel cites omitted.)
"This court has consistently held that Smith v. Phillips reinterpreted
Remmer to shift the burden of showing bias to the defendant rather
than placing a heavy burden on the government to show that an
unauthorized contact was harmless. In United States v. Pennell, 737
F.2d 521, 532 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct.
906, 83 L.Ed.2d 921 (1985), this court interpreted Smith v. Phillips as
holding that ‘Remmer does not ¢ vern the question of the burden of
proof where potential jury part ality is alleged. Instead, Remmer only
controls the question of how the district court should proceed where
such allegations are made * * *. In light of Phillips, the burden of proof
rests upon a defendant to demonstrate that unauthorized
communications with jurors resulted in actual] juror partiality. Prejudice
is not to be presumed." 7d.
The Sixth Circuit then listed two other cases in which it had reiterated
its interpretation of Smith v. Phillips as well as a First Circuit case
which also followed its interpretation and two federal appellate courts
which have not followed its interpretation.
See, also, State v. Johnson (Jan. 16, 1997), Cuyahoga App.
No. 70234, unreported, in which the appellate court cited
State v. Phillips in holding that the defense must prove that a
juror was biased.2
In State v. Phillips, the defendant had argued on appeal that
he had been denied the right to trial by an impartial jury
because, during a trial recess, five of the jurors had been
spoken to by a member of a grand jury panel about the
defendant's case. 74 Ohio St.3d at 88. The jurors reported
the comments to the court's staff and the trial court held a
hearing after which he concluded that the jurors would not
consider the comments made to them.3 Jd. In discussing jury
impartiality, the Ohio Supreme Court stated that "A juror's
belief in his or her own impartiality is not inherently suspect
and may be relied upon by the trial court," citing Smith v.
Phillips, supra, 455 U.S. at 217, fn. 7; 4 Zelinka, supra, 862
2 Although in State v. Hart (1988), 57 Ohio App.3d 4, 8, 566 N.E.2d
174, I voted with the majority in finding that the burden was on the
prosecution to prove juror misconduct was harmless, I believe in light
of the Ohio Supreme Court's reliance on Zelinka in State v. Phillips,
supra, the burden is appropriately placed on the defendant.
3 Although the jurors’ actions in the Phillips case, i.e. leaving the area
when the grand juror began speaking to them and reporting the contact
to the bailiff, differ from the facts in the case sub judice, I believe that
the focus should be upon the ability of the jurors to be fair and
impartial.
4 In fn. 7, the United States Supreme Court stated:
"Respondent correctly notes that determinations made in Remmer-type
hearings will frequently turn upon testimony of the juror in question,
but 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), '[one] may not know or altogether understand the
F.2d at 95-96. Id. at 89.
In State v. Lewis (1993), 67 Ohio St.3d 200, 207, the
defendant also argued that he had been denied his right to a
fair trial by an impartial jury because of improper
communication to the jury when an alternate juror told
several other jurors about the victim's brother-in-law
speaking to her during an adjournment. When the trial court
conducted a voir dire of all the jurors to determine whether
the incident had affected their ability to be fair and impartial,
all jurors denied that the incident had affected their ability to
be fair and impartial. Jd. In holding that the defendant had
failed to show that he had been denied his right to a fair trial,
the Ohio Supreme Court stated:
"In State v. Hipkins (1982), 69 Ohio St.2d 80, 83, this
court held, 'A new trial may be granted for the misconduct
of the jury where the substantial rights of the defendant
have been materially affected. R.C. 2945.79(B); Weis v.
State (1872), 22 Ohio St. 486. * * * Conversations by a
third person with a juror during the progress of a trial for
the purpose of influencing the verdict may invalidate the
verdict, but where there is nothing in the record to
demonstrate that the decision might have been influenced
by such conversation, the refusal of the trial court to grant
a new trial will not be disturbed. State v. Higgins (1942),
70 Ohio App. 383.’ (Parallel cites omitted.)
"Alternate juror Barr did not participate in the jury
deliberations in the guilt phase or the penalty phase.
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. See also United States v. Reid, 12 How. 361, 366,
13 L.Ed. 1023 (1852)."
Appellant has not demonstrated how he was prejudiced by
this contact with an alternate juror. The trial court negated
any showing of prejudice by interrogating this alternate
juror and conducting a voir dire of the remaining jurors. *
* * " Id. (Emphasis added.)
In State v. Kehn (1977), 50 Ohio St.2d 11, 18-19, the Ohio
Supreme Court reversed the court of appeals and held that
the trial court did not err in denying a motion for a new trial
on grounds of jury misconduct. In Kehn, after the trial, the
jury foreman sent the trial judge an extensive trial notebook,
containing detailed testimony digests, charts, points of law
(some incorrect), and even philosophical phrases. Jd. After
he received the notes, the trial judge notified all parties and
all members of the jury of his receipt of the notes, and held a
hearing to determine if the notes had an influence on the
verdict. Jd. Each juror stated that his verdict was in no way
influenced by the notes. Jd. at 19. After opining that such a
detailed set of notes in the judge's possession constituted
more than a juror’s admission or testimony as to possible
misconduct and, thus, constituted evidence aliunde and
suggested the possibility of prejudice, the Ohio Supreme
Court stated: ;
“Each juror stated that his verdict was in no way influenced
by the notes. No prejudice to appellants was affirmatively
demonstrated. It is a long- standing rule of this court that we
wiil not reverse a judgment because of the misconduct of a
juror unless prejudice to the complaining party is shown.
Armleder v. Lieberman (1877), 33 Ohio St. 77. We find that
the trial court did not err in denying a new trial, and overrule
this proposition of law." at 18-19.
Based on a review of the record in accordance with the
above law, I do not believe that reversal in this case is
warranted as appellant has failed to demonstrate the trial
court abused its discretion in denying his motion for a new
trial.
90 Ohio St. 3d 1419; 735 N.E.2d 457;
2000 Ohio LEXTS 2442
99-239 and 99-427.
~SUPREME COURT OF OHIO
~90 Ohio St. 3d 1419; 735 N.E.2d 457; 2000 Ohio LEXIS
2442 :
—September 20, 2000, Decided
NOTICE: DECISION WITHOUT PUBLISHED OPINION
PRIOR HISTORY:
Lucas App. No. L-97-1002. Reported at 89 Ohio St. 3d 342,
731 N.E.2d 662.
JUDGES: Moyer, C.J., and Cook, J., dissent. Resnick, J.,
not participating.
OPINION: RECONSIDERATION DOCKET
On motion for reconsideration. Motion denied.
Moyer, C.J., and Cook, J., dissent.
Resnick, J., not participating.
Ohio Revised Code § 2945.44 - Immunity of witnesses
turning state’s evidence.
(A) In any criminal proceeding in this state or in any
criminal proceeding brought pursuant to sections 2923.31 to
2923.36 of the Revised Code, if a witness refuses to answer
or produce information on the basis of his privilege against
self-incrimination, the court of common pleas of the county
in which the proceeding is being held, unless it finds that to
do so would not
further the administration of justice, shall compel the witness
to answer or produce the information, if both of the
following apply:
(1) The prosecuting attorney of the county in which
the proceedings are being held makes a written request to the
court of common pleas to order the witness to answer or
produce the information, notwithstanding his claim of
privilege;
(2) The court of common pleas informs the witness
that by answering, or producing the information he will
receive immunity under division (B) of this section.
(B) If, but for this section, the witness would have
been privileged to withhold an answer or any information
given in any criminal proceeding, and he complies with an
order under division (A) of this section compelling him to
give an answer or produce any information, he shall not be
prosecuted or subjected to any criminal penalty in the courts
of this state for or on account of any transaction or matter
concerning which, in compliance with the order, he gave an
answer or produced any information.
(C) A witness granted immunity under this section
may be subjected to a criminal penalty for any violation of
section 2921.11, 2921.12, or 2921.13 of the Revised Code,
or for contempt committed in answering, failing to answer,
or failing to produce information in compliance with the
order.
IN THE COURT OF COMMON PLEAS OF LUCAS
COUNTY, OHIO
State of Ohio *Case No. CR96-5010
PLAINTIFF, *
VS. * JOURNAL ENTRY
Matthew J. Reiner*
*Honorable Judith Ann Lanzinger
DEFENDANT.
2K 2 9 9 2k 9 2 2 2 ak ok
1. Introduction
A jury trial began in this case on September 9, 1996
and on September 20 the jury rendered a verdict of guilty to
the offense of involuntary manslaughter, an aggravated
felony of the first degree. On October 4, 1996, defendant
filed a motion for judgment of acquittal and alternatively,
for a new trial. After due consideration, the court denies
both motions.
“pa
Il. Motion for Acquittal
Motions for acquittal have the same standard
whether made during trial under Crit. R. 29(A) or after trial
under Crim. R. 29(C). State v. Beehive Ltd. Partnership
(1993), 89 Ohio App. 3d 718, 723. Judgment of acquittal
should not be granted where the evidence is such that
reasonable minds can reach different conclusions as to
whether each material element of a crime has been proved.
State v. Apanovitch (1987), 33 Ohio St. 3d 19; State v.
Bridgeman (1978), 55 Ohio St. 24.261.
When viewed most favorably for the State of Ohio,
the record reveals that the jury had sufficient evidence--
medical opinions of three board certified pathologists and
testimony of other witnesses, including that of both Debra
and Matthew Reiner--to draw its findings that Alex Reiner
died as a result of a severe shaking sometime after 10:30
p.m. on August 28, 1995, when he was alone with his father,
Matthew Reiner. The motion for judgment of acquittal,
therefore, is denied.
Ill. Motion for New Trial
Defendant relies upon section (A)(1),(2),(4) and (5)
of Crim. R. 33’ in filing his motion for new trial. He claims
the proceedings were irregular in the grant of immunity to
Susan Batt; that jury instructions with respect to immunity
_were contrary to law; that the court erred in refusing to
‘CRIMINAL RULE 33. New Trial
(A) Grounds. A new trial may be granted on motion of the defendant
for any of the following causes affecting materially his substantial rights.
(1) Irregularity in the proceedings, or in any order or ruling of the
court, or abuse of discretion by the court, because of which the defendant was
prevented from having a fair trial;
(2) Misconduct of the jury, prosecuting attorney, or the witnesses for
the state;
7-2.
(4) That the verdict is not sustained by sufficient evidence or is
contrary to law. If the evidence shows the defendant is not guilty of the degree
of crime for which he was convicted, but guilty of a lesser degree thereof, or of a
lesser crime included therein, the court may modify the verdict or finding
accordingly, without granting or ordering a new trial, and shall pass sentence
on such verdict or finding as modified;
(5) Error of law occurring at the trial;
instruct on an “implied admission”; that the court erred in
refusing to allow impeachment of Susan Batt on claimed
injuries to other Reiner children; that there was prosecutorial
misconduct in failure to disclose the coroner’s “changed
testimony”; that the expert opinions of the State’s three
pathologists were erroneous and unreliable under Evid. R.
702(C); that the defense was erroneously prevented from
proving content of an alleged prior inconsistent coroner’s
Statement; and that the jury engaged in misconduct.
After due consideration of all arguments and cases
cited by the parties, the court denies defendant’s motion for
new trial.
Grant of Immunity
Both sides subpoenaed Susan Batt, the Reiner’s
former nanny, to appear in this case. When the State called
her to the stand, Batt invoked her Sth Amendment right
a ee ee
-78-
against self-incrimination and refused to testify. The State
then requested transactional immunity for her pursuant to
R.C. 2945.44. A hearing was then held to determine if both
RC. 2945.44 governing witness immunity state:
“(A) In any criminal proceeding in this state * * * if a witness refuses
to answer or produce information on the basis of his privilege against self-
incrimination, the court of common pleas of the county in which the proceeding
is being held, unless it finds that to do so would not further the administration of
justice, shall compel the witness to answer or produce information, if both of
the following apply:
(1) The prosecuting attorney of the county in which the
proceedings are being held makes a written requestto the court of common pleas
to order the witness to answer or produce the information notwithstanding
his claim of privilege;
(2) The court of common pleas informs the witness that by
answering, or producing the information he will receive immunity under division
(B) of this section.
(B) If, but for this section, the witness would have been privileged to
withhold an answer or any information given in any criminal proceeding, and he
complies with an order under division (A) of this section compelling him to
give an answer or produce any information, he shal] not be prosecuted or
subjected to any criminal penalty in the courts of this state for or on account of
any transaction or matter concerning which, in compliance with the order, he
subsections (A)(1) and (2) applied.”
A valid assertion of the Fifth Amendment privilege
exists where a witness has reasonable cause to apprehend a
real danger of incrimination. United States v. Apfelbaum
(1980), 445 U.S. 115, 127. In Hoffman v. United States
(1951), 341 U.S. 479, the Supreme Court explained the
scope of danger:
gave an answer or produced any information. * * *”
(Emphasis added)
. At 2 hearing for this purpose, the prosecutor stated that no evidence
currently existed which would cause the State to indict Susan Batt on any crime.
Finding that the statute had been met, the court granted immunity. Section (B),
which defendant argues is a “precondition” merely discusses the effect of
immunity.
ne.
i%
“* * * a real danger of prosecution
also exists where questions,
which appear on their face to call only
for innocent answers, are
dangerous in light of other facts
already developed. In such a situation
a witness bears no further burden of
establishing a reasonable cause
to fear prosecution beyond asserting
the privilege and identifying the
nature of the criminal charge or
supplying sufficient facts so that a
particular criminal charge can be
reasonably identified by the court.
The witness has met his burden and
the court does not need to inquire
further as to the validity of the
assertion of the privilege, if it is
evident from the implications of a
question, in the setting in which it is
asked, that a |
responsive answer might be dangerous
to the witness because an
injurious disclosure could result.” At
486-87. (Emphasis added)
The peculiarities of this case, as well as the facts
actually in evidence, warranted a grant of immunity to
ensure that all relevant evidence was before the jury. The
defense advanced a theory throughout the trial that the
former nanny was eiity of multiple acts of abuse against the
Reiner twins. In this case, therefore, Susan Batt did have
reasonable cause to apprehend a real danger of
incrimination, for the defendant and the Reiner family also
blamed her for the death of Alex. Defendant takes
contradictory positions. On one hand, he argues that
immunity was conferred too quickly, before the court heard
defense evidence which would implicate Susan Batt; on the
other hand, he maintains that her apprehension of self-
incrimination was “imaginary and insubstantial.” There is
no evidence of prosecutorial misconduct in the State’s use of
immunity. The statute exists to allow the State to bring all
witnesses before the trial jury. State ex rel. Leis v. Outcalt
(1982), 1 Ohio St.3d 147, 149.
of
A
Jury Instructions
Susan Batt’s testimony also was the subject of
defendant’s arguments against the immunity instruction,
which was given, and of the “implied admission” instruction,
which was not. Crim. R. 30* governs proposed jury
instructions. “A charge to the jury should be a plain, distinct
* Criminal Rule 30 states:
“(A) Instructions; error”, record. At the close of the evidence
or at such earlier time during the trial as the court
reasonably directs, any partymay file written requests that
the court instruct the jury on the law as set forth in the
requests. Copies shall be furnished to all other parties at
the time of making the requests. The court shall inform
counsel of its proposed action on the requests prior to
counsel’s arguments to the jury and shall give the jury
complete instructions after the arguments are completed.
The court also may give some or all of its instructions to the
jury prior to counsel’s arguments. The court need not -
reduce its instructions to writing. On appeal, a party may
not assign as error the giving or the failure to give any
instructions unless the party objects before the jury retires
to consider its verdict, stating specifically the matter
objected to and the grounds of the objection. Opportunity
shall be given to make the objection out of the hearing of
the jury.
(B) Cautionary instructions. At the commencement and
during the course of the trial, the court may give the jury
cautionary and other instructions of law relating to trial
procedure, credibility and weight of the evidence, and the
duty and function of the jury and may acquaint the jury
generally with the nature of the case.
and unambiguous statement of the law as applicable to the
case made before the jury by the proof adduced.” Marshall
v. Gibson (1985), 19 Ohio St.3d 10, 12, citing Parmlee v.
Adolph (1875), 28 Ohio St. 10, paragraph two of the
syllabus. In a criminal case, a defendant is entitled to have
his requested special instructions included in the charge to
the jury sine when they are correct statements of the law,
pertinent and not included in the substance of the general
charge. See, State v. Comen (1990), 50 Ohio St.3d 206;
State v. Guster (1981), 66 Ohio St.2d 266; and State v.
Theuring (1988), 46 Ohio App.3d 152. The court retains
discretion to use its own language to communicate the same
legal principles: State v. Nelson (1973), 36 Ohio St.2d 79,
paragraph one of the syllabus.
Defendant objected to the immunity instruction as
“incomplete and slanted” because it included the phrase that
Susan Batt was subject to perjury prosecution if she testified
-85-
falsely. Defendant argued this phrase improperly bolstered
her testimony and gave the court’s personal assurance of her
credibility. Defendant offered an instruction on credibility
from United States v. DeLoach (D.C. Cir. 1975), 530 F.2d
990, a case readily distinguishable, since it involved a :
defendant who bargained with the government for special
treatment in exchange for his testimony at the trial of a co-
defendant. In this case, the immunity instruction’ given was
taken word for word from R.C. 2945.44, which includes
language that an immunized witness is still subject to the law
of perjury. An instruction addressing the credibility of all
witnesses was also given separately and informed the Jury it
did not have to believe all, or even part of someone’s
testimony, merely because that person was placed under
> Normally, the suggested OJ] instruction would have been used;
however, one was not available on this issue. See, Brinkman v. Mazda Motor of
Am., Inc. (May 13, 1994), Lucas County App., No. L-93-142, unreported, where
statutory language was found to be the proper method to instruct a jury in
absence of a pattern instruction. See also,
-86-
oath. The jury was fully instructed in the usual way on how
6
to determine credibility of all witnesses.
Defendant also requested an “implied admission”
instruction with respect to Susan Batt. Debra Reiner,
defendant’s wife, asked the former nanny in Juvenile Court
after her testimony was completed,’ “Did you do it on
purpose, or was it an accident?” Susan Batt did not answer,
but instead lowered her head and walked away. Defendant
requested an instruction that such behavior could constitute
an inference of guilt and could be considered as an implied
admission.
First, a hearsay objection to this testimony was
State v. Jacobs (1995), 108 Ohio App. 3d 328, 334.
A copy of the written instructions is part of the record.
id Defendant filed a copy of the certified transcript of Susan Batt’s
testimony at proceedings held January 29, 1996 before Judge James Ray. It was
during this hearing that she first asserted the 5th Amendment upon the advice of
Loren Zaner, her attorney.
-87-
sustained at trial. Evid. R. 801(D(2)(b) applies to parties,
and Susan Batt was not the defendant in this case.*
Furthermore, a person admits the truth of a statement by
adoption when that person hears, understands, and
acquiesces in another person’s statement when a reasonable
person could and would have spoken out in denial. Zeller v.
State (1931), 123 Ohio St. 519. The United States Supreme
Court has noted that adoptive admissions implied by silence
are troubling because a nondeclarant may have numerous
other reasons, besides sponsorship, not to speak. See, Doyle
v. Ohio (1976), 426 U.S. 610. At the time the question was
asked, Batt was under instructions from her attorney not to
answer anything. An instruction on adoptive admissions
8 Evid. R. 801(D)(2)(b) provides:
“(D) A statement is ‘not hearsay if:
* * * (2) Admission by party-opponent. The statement is
offered against a party and is
(a) his own statement, in either his individual or a
representative capacity, or
(b) a statement of which he has manifested his adoption or
belief in its truth. * * *”
would have been improper.
Evidentiary Rulings
The defendant presents several arguments on
evidentiary sconce: that he was precluded from impeaching
Susan Batt by not being allowed to separately cross-examine
her as to each and every one of the eighteen assertions of her
Fifth Amendment privilege in Juvenile Court; that opinions
as to the cause of collapse and death expressed by the three
coroners called by the State should have been struck under
Evid. R. 702(C); and that defendant should have been
allowed to
prove the fact and content of an alleged prior inconsistent
statement of the Lucas County Coroner during his grand jury
testimony. All these matters were addressed through rulings
- at trial and have been preserved for the record on appeal.
This court denies a new trial on evidentiary grounds.
Medical Testimony and Prosecutorial Misconduct
The defendant argues prosecutorial misconduct in
that the State failed to disclose a change in the coroner’s
testimony and a new trial theory unsupported by physical
evidence. The argument that there was misconduct in the
grant of immunity has already been noted. To obtain
reversal of a conviction due to prosecutorial misconduct, a
defendant must show that a prosecutor acted improperly and
that the improper conduct prejudiced defendant's substantial
rights. See, State v. Smith (1984), 14 Ohio St. 3d 13, citing
United States v. Dorr (1981), 636 F. 2d 117. The
prosecutor’s conduct must be judged within the context of
the whole case. State v. Draughn (1992), 76 Ohio App. 3d
664.
After due consideration of all of the arguments,
review of the briefs and applicable law, the court finds
defendant's characterizations of the medical testimony
inaccurate and the arguments unpersuasive. As such, a new
trial is unwarranted for prosecutorial misconduct. See, State
v. Schiebel (1990), 55 Ohio St.3d 71; State v. Shepard
(1983), 13 Ohio App.3d 117;
Toledo v. Stuart (1983), 11 Ohio App.3d 292.
Jury Misconduct
Motions for new trial on allegations of jury
misconduct must be supported by affidavit.’
The State objected vehemently to Rolf Sandberg’s affidavit,
portions of which stated:
5. Until I was excused as an alternate juror on
Crim. R. 33(C) provides: “Affidavits required. The causes
enumerated in subsection (A)(2) and (3) must be sustained by affidavit showing
their truth and may be controverted by affidavit.
September 19, 1996, I was present and took part in
discussions concerning the case with some of the trial jurors
who later
deliberated;
6. In none of those discussions concerning the case
was the entire panel of the twelve
jurors who deliberated present;
7. In those discussions with fewer than all the jurors
present, the case was discussed,
including assessments of evidence, characterizations
of evidence, determinations of the
credibility of witnesses, and individual jurors’
opinions about the guilt or innocence of the accused.”
(Sandberg Aff. paras. 5-7)
The State maintains that Sandberg is incompetent to
raise any issue to impeach the jury’s verdict because he was
an alternate juror in the Reiner trial. It relies upon Evid. R.
606(B) which provides:
“Inquiry Into Validity of Verdict or Indictment.
Upon an inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter or statement occurring
during the course of the jury’s deliberations or to the effect
of anything upon his or any other juror’s mind or emotions
as influencing him to asset to or dissent from the verdict or
indictment or concerning his mental processes in connection
therewith. A juror may testify on the question whether
extraneous prejudicial information was improperly
brought to the jury’s attention or whether any outside
influence was improperly brought to bear on any juror,
only after some outside evidence of that act of event has
been presented.
However a juror may testify without the presentation
of any outside evidence concerning any threat, any bribe,
any attempted threat or bribe, or any improprieties of any
officer of the court. His affidavit or evidence of any
statement by him concerning a matter about which he would
be precluded from testifying will not be received for these
purposes.” (Emphasis added)
This rule prevents impeachment of a jury verdict by a
juror unless foundation is first provided by evidence
“aliunde”’, that is, from an extraneous, independent source.
See, e.g. State v. Kehn (1977), 50 Ohio St.2d 11; State v.
Rowe (1993), 92 Ohio App. 3d 652, 675; State v. Peterson
(Mar. 11, 1996), Stark App. No. 95CA0213, unreported
(witness reporting juror stated she “changed her mind” not
evidence aliunde.}; State v. Fleming (Aug. 2, 1991), Erie
App. No. E-90-16, unreported (counsels’ observation of
dictionary and thesaurus in jury room was evidence aliunde.)
Defendant argues that the rule does not apply to bar
Sandberg’s testimony because he was an alternate juror, and
because the purported misconduct happened outside the jury
room and before strain: As authority, he relies upon
State v. Rudge (1993), 89 Ohio App. 3d 429, an appellate
decision involving grant of a mistrial for jury misconduct in
a capital case. Two judges distinguished the status of
alternate jurors from “deliberating” jurors for purposes of the
aliunde rule.’° The rule was also held not to apply to
questions of misconduct occurring before deliberations. The
Rudge court found definite bias in the statement that “we
could save a lot of time and money and just hang him now”
since it evidenced a juror who was not impartial but instead
” Judge Ford, the presiding judge in Rudge, expressly disassociated
himself from this view in his concurrence and furthermore, asked the Supreme
Court for guidance in how to apply Evid. R. 606(B) when allegations of
misconduct of this type arise.
was predisposed to a guilty verdict and a death penalty.
This case differs from that of Rudge. Defendant is
not seeking a motion for mistrial as a result of prohibited
conversation engaged in while the case is pending. In such
event all jurors can be interviewed in camera about the
effect, if any, of improper discussions before deliberations
take place. Here, Sandberg first raised his misconduct
allegations and made them known to defense counsel only
after a verdict was canis His testimony as a member of
the jury is being offered to attack the credibility of the
verdict afterward and obtain a new trial.
Additionally, Rudge is not an expression of the
Supreme Court of Ohio. The policy of the aliunde rule was
explained by the Supreme Court in State v. Adams (1943),
141 Ohio St. 423, 427:
* * * [A] juror comes into court with bad grace in
attempting to prove his dishonorable conduct and to
stigmatize his companions; that the rule is based upon
conditions of public policy, which, if not adhered to, would
encourage further litigation and indefinitely postpone its ,
termination; that to permit a juror to impeach the verdict by
his testimony would allow a dissatisfied or corrupt juror to
destroy a verdict after he had assented to it; and that to
permit such testimony would destroy the privacy of the
deliberations of the jury and expose the jurors to criticisms
and embarrassment.” :
Rule 606(B) was designed to prevent such an attack by a
juror’? who may be unhappy with the verdict’s result. The
situation does not change simply because Sandberg was a
non-deliberating juror. While it is true that a hearing on the
issue of juror misconduct was scheduled October 31 by the
court in an abundance of caution and over the State’s
objection, no hearings should have been held on this issue
until there was competent non-juror evidence.
” The argument that alternates are not jurors for purpose of the
aliunde rule is unpersuasive. Compare policy reasons stated in Grier v. Standard
Qi] Co, (Apr. 18, 1991), Cuyahoga App. No. 58279, unreported (plaintiff's
affidavit reporting juror statements should not be accepted as evidence aliunde to
attack verdict for policy reasons.) The court now finds that the affidavit of Rolf
Sandberg was not compeient under Evid. R. 606(B) to impeach the verdict. For
Assuming for the sake of argument that Sandberg’s
affidavit was competent as an outside source, the allegations
of misconduct then required further investigation. It was this
court’s task to determine credibility after seeing the
witnesses and listening to their testimony to determine if
there was bias against Matthew Reiner. See, State v.
Johnson (January 8, 1992), Wayne App. No. 2659,
unreported.
Mr. Sandberg simply was not a credible witness. His
demeanor was less than candid and on cross examination, his
memory was revealed to be very selective. He denied
listening to what his initial role would be as an alternate
juror. He backtracked on certain points; four jurors “plus or
minus” were party to these discussions--or “at least two and
no more than six” jurors were present. He did not recall
that reason alone, the motion on grounds of jury misconduct should be denied.
dates or times of any conversations. On cross examination,
he mentioned that jurors #1, #4 and #6, all women, and
possibly juror #2 or #3 (a “heavyset” man in the front row)
may have been part of the “discussions”.'? He could not
recall jury admonitions being given by the court, although
they “may have” been.”
Sandberg reported that he talked about the clarity of
the coroner’s testimony, Susan Batt’s demeanor and the
grant of immunity, the expertise of defense counsel and that
™ At the November 6 hearing, jurors #1 and #6 testified thai they were
the two who had spoken with Sandberg. No other juror recalled being party to
discussions although juror #7 overheard a discussion that “seemed inappropriate”
at the time. .
- Court Exhibit 1, a transcript of the admonitions given during the
trial, show the numerous times the standard instruction was given to the jury.
defendant paid his attorneys $100,000 for their
representation. He admitted to wanting to deliberate with the
jury, being upset because he could not, knowing that his
comments were not appropriate, and expecting that
defendant would be found not guilty. He commented “It
would be absurd to go with anything but ‘not guilty’”. He
never informed the court of any of his statements although
he had the opportunity to do so, and did not volunteer this
information to anyone until he approached defense counsel
several days after the verdict was announced. Initially,
Sandberg said he did not dictate his affidavit to defense
counsel and later, stated he “may have.” In any event, the
full import of his affidavit was not borne out either in his
testimony, or more importantly, later in the testimony of
other jurors.
On November 6, 1996 the twelve deliberating jurors
testified.'* Their forthright responses to far-ranging
questions from both parties, their demeanor on the stand and
reasonableness of their answers lead to the conclusion that
they testified truthfully.° All readily admitted that
instructions not to talk about the case were given along with
other instructions. Defense strongly objected to the State’s
asking whether on improper conversation with Mr.
Sandberg affected their verdict, which they uniformly
16
denied.” in finding no prejudice to defendant, or
‘8 The jurors who testified on November 6 were understandably upset
at being called into be questioned after
they were released from serving on this case. In retrospect, it appears that if the
continuation of hearing were proper,
the jurors should have been questioned by the court rather than grilled for five
hours regarding the details of their jury j
service under the guise of “credibility determinations.”
7 Defendant emphasized the testimony of juror #9, the foreman, to say
the jury was obviously biased. At hearing Nov. 6, he testified he had no
knowledge about whether misconduct occurred. He did not believe the claim of
misconduct when he read it in the newspaper. He indicated he “didn’t think it
was true” and then thought that Sandberg may have been a “plant” by defense. It
is important to note that these remarks were made well after deliberations were
complete and a verdict was rendered in this case. Juror #9 as well as the other
jurors expressed some natural hostility at having their deliberations called into
question. I is precisely this that Evid. R. 606(B) was designed to prevent.
The objections were overruled. It appeared at the time that the State
-100-
alternatively, that any presumed prejudice was effectively
rebutted by the State, this court is specifically not
considering any statement by the jurors that could be
considered a subjective statement prohibited by Evid. R.
606(B)..”
Defendant was not prejudiced. No one but Sandberg
expressed an opinion and his opinion was defendant was not
guilty. Sympathy for the defendant is not prejudicial. See,
State v. Doan (September 29, 1995), Hamilton App. No. C-
940330 unreported; State v. Jones (1992), 81 Ohio App. 3d
348, 353 (speaking with defense witness and voicing
sympathy is not prejudicial); State v. Taylor (1991), 73 Ohio
App. 3d 827 (jurors speaking with defense witness found
should have the opportunity to show that the technical violations did not impact
the defendant adversely. Interestingly, defendant argues that Evid. R. 606(B)
does prevent these questions, since they relate to the jurors’ thought processes
during deliberations. On the other hand, speculation about the effect of certain
statements runs through defendant’s own brief.
” In other words, the denials of the effect upon the deliberations are
themselves stricken.
non-prejudicial). The real concern is with bias and prejudice
against the defendant. Busick
v. State (1850), 19 Ohio Rep. 198 (opinion expressed as to
defendant’s probable guilt); State v. Carter (1890), 11 Ohio
Dec. Rep. 123 (where action shows bias or opinion as to
guilt, verdict should be set aside.) In State v. Luoma (Dec.
7, 1990), Montgomery App. No. 10719, unreported, motion
overruled (1991), 59 Ohio St.3d 707, rehearing denied
(1991), 60 Ohio St.3d 709, for example, a juror stated to a
non-juror that the defendant was “a menace to society and
should be locked up and ne key thrown away forever.” A
new trial was warranted in such a case.
Defendant maintains he was prejudiced by the mere
fact of conversations before deliberation. Misconduct alone,
however, is not enough; it must materially affect substantial
rights. Defendant’s constitutional Sixth Amendment right to
trial by jury is designed to ensure him a fair trial by a panel
of impartial jurors. Irvin v. Dowd (1961), 366 U.S. 717,
722. When possible juror misconduct is brought to a trial
judge’s atiention, it is her duty to investigate its nature and
extent and to determine whether there may have been a
violation of the Sixth Amendment. See, e.g., State v. Taylor
(1991), 73 Ohio App. 3d 827, 833 (bias or prejudice is
refusal to consider the evidence or forming opinion of guilt
or innocence before all evidence is presented); State v.
Persinger (February 21, 1991), Montgomery App. No.
11468, unreported, (overheard conversations of two jurors
did not indicate partiality, thus no prejudice); State v. Collins
(1977), 60 Ohio App. 2d 116, 123 (improper reading of
newspaper article about case); State v. King (1983), 10 Ohio
App. 3d 161 (contact with outside attorney and independent
consultation found not prejudicial); State v. Kehn (1977), 50
Ohio St.2d 11 (extensive trial notebook of juror no
-103-
prejudicial effect).
Here, even if misconduct occurred, and it was
presumed to be prejudicial, (see State v. Hart (1988), 57
Ohio App.3d 4), the State rebutted the presumed prejudice
beyond a reasonable doubt. With respect to the content of
what was said, none of the statements show enmity or bias
against the defendant. The comments about expertise of, or
payment to defense counsei,” while ill-advised, were made
by Sandberg alone. Statements about the coroner’s clear
testimony and questions over Susan Batt’s demeanor and
why she obtained immunity were made, at most, to two other
jurors. Juror #1 and juror #6 who may have assented to
some of Mr. Sandberg’s inappropriate comments should, of
course, have reported this misbehavior to the court. The fact
18 Surors #1 and #6 recalled Sandberg commented he had “heard” that
counse] were paid $100,000 to represent defendant but didn’t mention where he
had gotten that information. Sandberg himself at one point “did not recall”
saying that. While defense speculates that somehow the jury would have been
adversely affected by such a comment, the court finds that the lengthy hearing
they did not shows his statements were not considered
significant. There was no evidence either of the two jurors
repeated them to others. There is no evidence that Sandberg
expressed anything but his own thoughts of partiality on
behalf of the defendant. All statements were made in the
judges’ library next to the jury room during trial recesses
before the jury was given full and final instructions about
what to consider during their deliberations. The statements
can not be characterized as “outside influence” since
Sandberg did not deliberate with the jury and did not have
contact with the twelve deliberating jurors at any time after
they were excused for that purpose. Any presumption of
prejudice was rebutted from the context and chyeiiiithiaiaes
revealed at the hearings. The jury was not biased against the
defendant and it impartially considered the evidence.
The law presumes proper conduct on the part of the
with al] deliberating jurors does not bear that out.
jury. Jurors are presumed to follow their instructions.
Unless the record demonstrates otherwise, it must be
assumed the jurors followed their oaths and decided the case
based solely on the evidence presented at the trial. State v.
Durr (1991), 58 Ohio St. 3d 86, 91; State v. Zuern (1987), 32
Ohio St. 3d 56, 60, cert. Den. (1988), 484 U.S. 1047; Lund v.
Kline 91938), 133 Ohio St. 3d 317, 320. The court finds any
presumed prejudice was rebutted beyond a reasonable doubt
by the circumsiances surrounding the remarks made by
Sandberg, a juror disgruntled over being excluded from
deliberations. A new trial is not warranted on grounds of
jury misconduct.
IV. Motion to Correct Record
On November 18, as part of a supplemental filing,
defendant filed a motions to “correct the record” asking the
prosecutor to submit the grand jury tape of the testimony of
Dr. James Patrick’s testimony in this matter for inclusion in
the record. He also seeks a certification by the prosecutors
of all “post-verdict contacts” with jurors in this case.
The State attached the transcript of Dr. Patrick’s
satinony as Appendix E to its supplemental memorandum.
The tape, therefore will be ordered submitted as an exhibit
on appeal for purposes of comparison. The request for
certification is not well-taken and is denied. Defendant’s
motion to correct record is therefore granted in part and
denied in part.
-107-
OURNAL ENTRY
It is ORDERED that:
Defendant’s motion for judgment of acquittal or in
the alternative for new trial is DENIED; Defendants
motion to correct the record is GRANTED IN PART
and DENIED in part. The State of Ohio is
ORDERED to submit the grand jury tape of Dr.
James Patrick’s testimony in this matter for inclusion
SCHEDULED for December 13, 1996 at 10:00 a.m.
December 9, 1996
Judith Ann Lanzinger
J. Christopher Anderson, Mark Lupe, Patricia Hayes,
Robert Kaplan, Sam Kaplan, Richard Walinski
State of Ohio v. Reiner
99-427.
SUPREME COURT OF OHIO
86 Ohio St. 3d 1417; 711 N.E.2d 1011; 1999 Ohio LEXIS
2247
June 30, 1999, Decided
NOTICE: DECISION WITHOUT PUBLISHED OPINION
PRIOR HISTORY: Lucas App. No. L-97-1002.
JUDGES: RESNICK, J., not participating.
OPINION:
‘ MOTION DOCKET
On review of order certifying a conflict. The court
determines that a conflict exists; the parties are to brief the
issue stated in the court of appeals’ entry journalized
February 9, 1999, at page 3:
"In State v. Thomas[, 1995 Ohio App. LEXIS 3244] ([July
26], 1995), Athens App. No. [94]CA1608, unreported [ 1995
WL 468183], inquiry was made of a juror as to whether
-109-
exposure to extraneous information or improper outside
influence affected the juror's impartiality. The juror's
response appears to have partially served as a reason for
concluding a lack of prejudice from juror misconduct. We
must conclude that, at least tacitly, the Thomas court found
permissible a practice we have held to be improper.
Accordingly, we find a conflict between this decision and
our own and do so certify.
"The issue submitted is whether Evid.R. 606(B) permits,
under any circumstances, inquiry for a juror as to the effect
of extraneous information or improper outside influence
upon his or her decision making process."
RESNICK, J., not participating.
Sua sponte, cause consolidated with 99-239, infra.
RESNICK, J., not participating.
-110-
State of Ohio v. Reiner
99-239.
SUPREME COURT OF OHIO
86 Ohio St. 3d 1418; 711 N.E.2d 1012; 1999 Ohio LEXIS
2257
June 30, 1999, Decided
NOTICE: DECISION WITHOUT PUBLISHED OPINION
PRIOR HISTORY: Lucas App. No. L-97-1002.
dissents. PEGGY BRYANT, J., of the Tenth Appellate
District, sitting for RESNICK, J.
OPINION: DISCRETIONARY APPEALS ALLOWED
Discretionary appeal allowed.
RESNICK, J., not participating.
Discretionary cross-appeal allowed.
COOK, J., dissents.
PEGGY BRYANT, J., of the Tenth Appellate District,
sitting for RESNICK, J.
Sua sponte, cause consolidated with 99-427, supra.
RESNICK, J., not participating.
Courtroom No. 5
Lucas County Courthouse
Toledo, Ohio
Tuesday
September 10, 1996
9:08 a.m.
THE COURT: This is the State
of Ohio versus Matthew Reiner, case number
96-5010. We have defendant present with
counsel of record as well as counsel for the
State of Ohio. We are not in the presence of
the jury yet.
And I understand there may be
something for the record first. Whose motion
would this be? Who wishes to raise the matter?
MR. ZANER: Your Honor, I guess
Iam. I have a witness that’s been subpoenaed
by both the State and the defendant in this
case, a one Susan Batt who was the Reiners’
babysitter.
In a previous hearing in juvenile
court where she was called to testify on behalf
of the defense, we have pled the Fifth, and it
is Our intention on both the prosecutor’s and
the defendant’s subpoenas to also plead the
Fifth.
It is my understanding after numerous
discussions I had with the prosecutor’s office,
having had an opportunity to review medical
records that they’ve provided to me, that the
witness is not the focus of the investigation
of the prosecutor.
However, I’m also aware in this case
that in discovery the defendant made a tactical
choice not to request names of witnesses. So
therefore they have not had to supply witnesses
to the prosecutor.
I have no idea what witnesses the
defense will be calling on their behalf
including experts that may be testifying to
state that the coroner and the other medical
experts on behalf of the State could in fact be
incorrect in their analysis, that in fact the
window of opportunity for the causing of
-113-
whatever occurred to this child to cause the
death could have occurred during the period of
time that my client was babysitting for this
child, and as a result of that I am convinced
after discussion with the defense that my
client is the focus of their defense that she
is in fact responsible for the death of this
child.
And therefore it is very possible
that after the completion of the case, if the
prosecutor 1s convinced after listening to the |
defense experts that they may cail that in fact
it could have been my client and not Mr. Reiner
as they are proceeding with today, she could in
fact be subject to criminal prosecution. And
therefore it is our intention to plead the
Fifth and refuse to testy.
THE COURT: Mr. Anderson.
MR. ANDERSON: Your
Honor, we were able to serve the witness, Susan Batt, with a
subpoena yesterday. So I guess she’s here pursuant to
-114-
subpoena today. ‘Obviously, I’ve
gotten on this case very recently. I was
informed she had takeen the Fifth Amendment in
juvenile court proceedings.
I’ ve examined the issue of immunity
pursuant to 2945.44, but I don’t think it really is applicable
in this particular case.
Miss Batt gave a statement to a CSB
caseworker which she clearly indicated she was
not involved in circumstances or there was no
culpability on her part for the crime that is
alleged in this indictment.
Further, Mr. Zaner has not indicated
that she could testify in any way that would be
culpatory of her in any fashion. So we have
four experts who are saying that the window of
opportunity would exclude her as being the
perpetrator of this offense.
And obviously if there’s
contradicting evidence, we would still have
four of our witnesses, including the coroner,
who we’re basing our case on stating that she
is not or could not have been the perpetrator
here. So I don’t know how in the interest of
justice I can request immunity for this witness
because it doesn’t seem to me that she in any
way has anything to assert the Fifth Amendment
priviledge to-protect herself, or I’m unaware
of anything.
So I’m sort of at a loss saying I
want to make a request that’s in the interest
of justice. This Court should compel her to
give testimony, and we will grant her immunity
for what I don’t know, because as far as I know
she is not culpable in any fashion.
THE COURT: Mr. Walinski.
MR. WALINSKI: Your
Honor, a couple of things. In all candor we must admit
to the Court that Mr. Zaner’s characterization ~
of our defense is accurate. I should point out
to the Court that the coroner has expressed an
opinion in the autopsy that puts the cause of
-116-
death at a time when -- that incorporated a
‘time when Susan Batt was solely in -- had the
twins solely in her custody.
He has since modified that, but he
has expressed an opinion. There have not been
any questions, and she’s not been asked any
questions with respect to the injuries that
have been diagnosed to Derek that happened
during the period during which she had
regular -- exclusive custody of the children. Those were the
rib injuries that were referred to in opening which were
diagnosed Several days to a couple of weeks before the --
the radiological survey was taken.
So I don’t quite understand the
State’s ability to say that there is no
culpability for that crime has not yet been
charged to anyone. And indeed you will hear
from the stand from the coroner testimony that
a time frame that he opined for this injury
included a period of time when she was
solely -- had the kids solely in her custody.
saying
to -- trying to backdate a fracture by x-ray.
There’s only a frame of time. They’re not
going to be able to pinpoint it. So obviously
there was a period of time she was with the
kids, and there was obviously a lot of times
the other people were there. There’s no
evidence that specifically puts her there.
There’s been no proffer to me by Mr. Zaner who
indicates that she would in any way testify
that would be inculpatory on her part.
MR. WALINSKI: She has already
said that -- there are statements to a list of
questions presented to her at the juvenile
court testimony. She repeatedly said that her
answers to those questions would tend to
incriminate her.
\ MR. ANDERSON: I’m not
aware of that, Your Honor.
MR. WALINSKI: It’s in
the transcript.
MR. ROBERT KAPLAN: It’s in
the record incidentally.
THE COURT: Could we make
that transcript available to Mr. Anderson so he is
aware of what we’re talking about here? Do we
have that?
MR. RO
This text is long and has been trimmed here. Open the source document for the complete record.
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