Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas TRIAL NOS.
T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for
Raymond T. Faller, Hamilton County Public Defender, and
Demetra Stamatakos, Assistant Public Defender, for
Kyle Finnell appeals the judgment of the Hamilton County
Court of Common Pleas denying his motion to disclose juror
information under seal and denying his motion for a new
trial. In his second assignment of error, Finnell argues that
defense counsel was ineffective for failing to articulate to
the court that he was entitled to the juror information under
Evid.R. 606(B) because the jurors were allowed to testify
regarding any threats or attempted threats. We agree, and we
reverse the trial court's judgment denying the motion to
disclose juror information and remand the cause with
instructions to the trial court to release the juror
information under seal. The judgment on the motion for a new
trial is vacated.
In June 2014, Kyle Finnell was convicted, after a jury trial,
of aggravated burglary with a firearm specification,
burglary, aggravated robbery with firearm specifications,
robbery, kidnapping, two counts of having weapons while under
a disability and intimidation of a witness.
Before sentencing, Finnell filed a motion for a new trial
under Crim.R. 33 alleging that two of the jurors committed
misconduct by failing to immediately report to the court that
they believed Finnell had followed them after the first day
of deliberations in an attempt to intimidate them. Under
Crim.R. 33, a new trial may be granted when juror misconduct
materially affected the defendant's substantial rights.
Crim.R. 33(A)(2). Allegations of juror misconduct "must
be sustained by affidavit showing their truth, and may be
controverted by affidavit." Crim.R. 33(C).
Finnell moved the court for a new trial because the perceived
intimidation may have biased the jurors during deliberations.
According to the motion, the jurors did not inform the
bailiff of the intimidating contact until after the verdict
had been recorded, and this prevented the trial court from
conducting a hearing to determine the contact's potential
impact on the jurors' ability to perform their duty
impartially. See Remmer v. United States, 347 U.S.
227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954) (holding that a
trial court must conduct a hearing when any improper contact
occurs with a juror during a criminal trial to determine the
circumstances and the impact on the juror).
Although the judge had recused himself from hearing the
motion for a new trial, he conducted a hearing on the motion
prior to sentencing Finnell. During the hearing, the parties
and the court discussed the off-record conversation that some
jurors had had with the court's bailiff after the
delivery of the verdict. The discussion indicates that the
jurors had encountered the defendant outside the courthouse
after deliberations one afternoon. After the jurors reported
their concerns to the bailiff, the trial judge spoke with
them and then later informed defense counsel of his
communication with the jurors.
Based on the information from the trial judge, defense
counsel characterized the jurors' encounter as a
perceived threat of intimidation that was not reported until
after the rendering of the verdict. Finnel and the state then
stipulated to the following: "That there was no
communication regarding any issues of intimidation toward
jury members prior to the rendering of the verdict." The
trial court overruled the motion for a new trial after
concluding that Evid.R. 606(B) prohibited the jurors from
testifying about the contact because no outside evidence of
the contact was submitted by Finnell.
In relevant part, Evid.R. 606(B) states,
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.
if there is evidence of a threat or an attempted threat, no
outside evidence of the threat is required to be ...