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State v. Finnell

Court of Appeals of Ohio, First District, Hamilton

February 14, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
KYLE FINNELL, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NOS. B-1305265-B, B-1306715

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos, Assistant Public Defender, for Defendant-Appellant.

          OPINION.

          Zayas, Judge.

         {¶1} 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.

         Background Facts

         {¶2} 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.

         {¶3} 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).

         {¶4} 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).

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         Therefore, if there is evidence of a threat or an attempted threat, no outside evidence of the threat is required to be ...


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