Court of Appeals of Ohio, Eleventh District, Lake
Appeal from the Lake County Court of Common Pleas, Case No.
09 CR 000819.
Charles E. Coulson, Lake County Prosecutor, and Anna C.
Kelley, Karen A. Sheppert, and Patrick J. Condon, Assistant
Prosecutors, Lake County Administration Building, (For
Bryan Carr, Carr, Feneli & Carbone Co., L.P.A. (For
R. WRIGHT, J.
Appellant, Daniel Edward Kovacic, appeals the denial of his
motion for a new criminal trial based upon alleged juror
misconduct. He contends that his motion should have been
granted due to credible evidence showing that a juror failed
to disclose her prior relationship with the victim. We
In January 2010, appellant was indicted on two counts of
felonious assault and one count of tampering with evidence.
Following a jury trial in April 2010, he was convicted on all
three counts. After merging the two felonious assault counts
for purposes of sentencing, the trial court sentenced him to
an aggregate prison term of ten years.
This court affirmed appellant's conviction in all
respects. State v. Kovacic, 11th Dist. Lake No.
2010-L-065, 2012-Ohio-219, 969 N.E.2d 322. His appeal to the
Ohio Supreme Court was not accepted. State v.
Kovacic, 131 Ohio St.3d 1555, 2012-Ohio-2263, 967 N.E.2d
Brenna Brunnet was one of the twelve jurors. Her son, Nathan
Cooper, attended Willoughby North High School graduating in
2008. During high school, Cooper was an acquaintance/friend
of Anthony "Bobby" Kepes, the victim of the
felonious assaults. Cooper and Kepes occasionally ate lunch
together in the school cafeteria and were baseball teammates
for a number of years.
During voir dire, the prosecutor asked prospective jurors if
they knew Kepes. Brunnet did not respond, and was ultimately
seated on the jury.
Michael Corrao lived across the street from Brunnet during
Cooper's high school years. Corrao and Cooper are the
same age, knew each other and both attended Willoughby North.
Corrao was a close friend of Kepes. Eighteen months after
appellant's trial, Corrao tried to contact
appellant's sister to talk to her about Brunnet serving
on the jury. Initially, appellant's sister refused to
talk to him because she knew that he and Kepes had been
friends. When Corrao made several more attempts to speak with
her, however, she relented, and he told her that Cooper's
mother was a juror in her brother's case. After
investigating further with her mother, appellant's sister
made the connection between Brunnet and Cooper.
Subsequently, Corrao was placed in contact with
appellant's attorney and he executed an affidavit
concerning the connection between Brunnet and Kepes averring:
(1) from sixth grade through high school, he, Cooper, and
Kepes were close friends; (2) besides playing sports
together, they would regularly sleep over at each other's
homes and attend birthday parties; (3) the week of
appellant's trial in April 2010, he was walking down the
street near his house when he saw Brunnet and stopped to
speak with her; (4) as part of the conversation, Brunnet told
him that she was a juror in appellant's case; (5) when he
asked Brunnet how that was possible when she knew Kepes,
Brunnet responded that she kept quiet on the point; and (6)
Brunnet further told him that she visited the crime scene and
saw "blood all over the place."
Based upon Corrao's affidavit, appellant moved for leave
to file a motion for a new trial. In addition to arguing that
Brunnet engaged in juror misconduct, he asserted that he was
denied a fair trial due to Brunnet's failure to disclose
that she knew Kepes. After the state responded, the trial
court issued a judgment granting appellant leave to file,
finding that he was unavoidably prevented from discovering
the operative facts within fourteen days of the guilty
In January 2016, appellant submitted his motion for new
trial. In addition to Corrao's prior affidavit, appellant
attached the affidavits of Kepes and two others who knew
Cooper during high school. Kepes averred that he and Cooper
were close friends at that time, and that he could recall
seeing Cooper's mother, Brunnet, at baseball games and
practices. He further stated that he did not look at the jury
when he testified at appellant's trial. In opposing the
motion, the state submitted Brunnet's affidavit, in which
she averred: (1) she did not know Kepes prior to
appellant's trial; (2) she did not have a conversation
with Michael Corrao about the trial; and (3) she answered all
questions during voir dire completely and honestly.
The trial court conducted an evidentiary hearing. Besides
calling Brunnet on cross-examination, appellant presented the
testimony of four of Cooper's high school friends,
including Kepes and Corrao. Brunnet's and Corrao's
testimony was entirely consistent with their statements in
their respective affidavits. However, Kepes contradicted his