United States District Court, S.D. Ohio, Western Division, Dayton
District Judge, Walter Herbert Rice
REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
an action pursuant to 28 U.S.C. § 2254 for a writ of
habeas corpus. Petitioner Patrick McGail with the assistance
of counsel seeks release from a sentence of twenty-four years
to life imposed by the Miami County Common Pleas Court on his
convictions for murder, aggravated burglary, and aggravated
robbery (Petition, ECF No. 1, PageID 1).
case has been referred to the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. §636(b) and the
Dayton General Order of Assignment and Reference (General
Order Day 13-01). The relevant filings for consideration are
the Petition (ECF No. 1), Petitioner's Memorandum in
Support of the Petition (ECF No. 3), the State Court Record
(ECF No. 11), the Return of Writ (ECF No. 12), and
Petitioner's Response to the Return (ECF No. 15).
pleads one ground for relief: McGail was deprived of his
Sixth Amendment rights to an impartial jury and to confront
evidence against him due to juror misconduct and the
subsequent application of the aliunde rule
(Petition, ECF No. 1, PageID 5).
case arises from the armed home invasion of a drug dealer
named Nathan Wintrow on October 30, 2013, involving McGail
and two co-defendants. During the course of the invasion, Wintrow
was shot and killed. On December 20, 2013, the Miami County
Grand Jury indicted McGail for his part in the invasion on
two counts of murder and one count each of aggravated
burglary and aggravated robbery. Each count had an appended
firearm specification. McGail was convicted on all counts and
specifications on August 14, 2014.
weeks after the verdict, McGail moved for a mistrial or an
evidentiary hearing on juror misconduct, attaching the
Affidavit of Juror Kylie Spiers (State Court Record, ECF No.
11, PageID 258 et seq.). The trial court treated the motion
as one for a new trial and denied it September 3, 2014.
Id. at PageID 269 et seq. Two days later, McGail
moved for reconsideration, challenging the constitutionality
of Ohio R. Evid. 606(B). Id. at PageID 274, et seq.
On September 16, 2014, the trial court denied that motion as
well. Id. at PageID 284, et seq. Undeterred, McGail
filed a Supplemental Motion for Mistrial Based on Juror
Misconduct which was supported with a new affidavit of Ms.
Spiers and an affidavit from another juror, Ross Rhoades.
Id. at PageID 288, et seq.
was sentenced on October 9, 2014. Id. at PageID
329-30. He appealed to the Second District Court of Appeals
raising seven assignments of error, including as Assignment
Two that he was "denied his right to a fair trial as a
result [of] juror misconduct and the trial court erred in
denying Appellant's Motions for Mistrial on that
basis." (Appellant's Brief, State Court Record, ECF
No. 11, PageID 385.) The Second District sustained the Fourth
Assignment and required the trial court to merge the
aggravated robbery and murder convictions under Ohio's
allied offense statute, Revised Code § 2941.25, but
otherwise affirmed the conviction. State v. McGail,
2015-Ohio-5384, 55 N.E. 3d 513, 2015 Ohio App. LEXIS 5394
(2nd Dist. Dec. 22, 2015). McGail appealed to the
Ohio Supreme Court raising the following proposition of law:
Ohio Evidence Rule 606(B)'s requirement of
aliunde evidence to impeach a jury verdict should be
found unconstitutional and, therefore, be replaced by Federal
Rule of Evidence 606(b), which permits a juror to testify as
to whether extraneous prejudicial information was improperly
brought to the jury's attention.
(Memorandum in Support of Jurisdiction, State Court Record,
ECF No. 11, PageID 535.) The Ohio Supreme Court, however,
declined jurisdiction. State v. McGail, 145 Ohio
St.3d 1460 (2016). On July 27, 2017, McGail filed the instant
habeas corpus Petition.
State Court Decision and the Positions of the
opinion of the Second District on the juror misconduct claim
is the last reasoned state court decision on the matter and
therefore the state court decision this Court must consider.
Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Judge
Hall wrote for the Second District as follows:
[*22] In his second assignment of error, McGail raises a
claim of juror misconduct in a motion for a mistrial, filed
two weeks after the verdicts, supported by an affidavit of
juror Kylie Spiers. To place this issue in context,
additional trial facts are necessary. McGail's witnesses
included his sister, Autumn Kunkle, who testified, among
other things, that when she and her brother Patrick were
growing up the family went to church every Sunday. Daine
[sic] Mengos, the youth ministry director for St.
Patrick's church, testified that she has known the McGail
family since before Patrick's birth. When he was a
teenager, he participated in many youth ministry activities.
He helped with the church festival, visited nursing-home
residents, collected items for the Hope Christmas Shop,
assisted at the soup kitchen, and joined the contemporary
choir. He was a substitute percussionist in church on and off
for two years and, in the year before her testimony, he was
in the Lenten play. In addition, Mengos was permitted to
identify four group pictures containing McGail in the
contemporary choir, at the soup kitchen, and at two other
youth-ministry activities. These exhibits were admitted as
evidence. McGail's own testimony about his involvement
with church was much more limited, almost negligible
considering his 100 pages of testimony. He said he loved
volunteering through his church. He said growing up, church
and school were the most important things for the family and
they went to St. Patrick's. He identified himself and his
brother in Exhibit P, the photograph of the church choir. He
said that he had friends at church and saw them when he was
at church projects with the youth group, but outside of that,
he didn't have contact with them. He said that to deal
with the shame over not doing more to halt the home invasion,
he goes to church to ask for forgiveness. Nowhere did he
testify to current or recent regular attendance at St.
Patrick's Sunday services.
[*23] At several intervals throughout the trial, the court
indicated that jurors were not to read or listen to media
reports, including reference that such reports often are
incomplete and inaccurate. The court also indicated several
times, including in final instructions, that the jurors must
decide the case for themselves and may only consider and
decide the case on the evidence presented. Finally, we note
that there was no inquiry during voir dire about whether any
prospective juror might recognize the McGail family from
their St. Patrick's church attendance, or from
McGail's participation in the Civil Air Patrol, about
which there was also substantial evidence, including
photographs, introduced by the defense.
[*24] After the verdicts were announced in open court, the
defense requested that the jury be polled. Each juror
independently confirmed his or her verdict.
[*25] No evidence of published news reports was submitted in
support of the new trial motion, and therefore there was no
information before the court suggesting that news reports
supplied inaccurate or inadmissible prejudicial information.
The juror's affidavit we discuss infra indicates
that another juror told her news reports were
"slanted" against McGail, but, without question, so
was the evidence as it was admitted. The affidavit asserts
that the other juror talked about a news report containing
information that McGail was the shooter, but there was actual
trial evidence about that contention introduced during
defense questioning. The lead investigator, Detective Tilley,
testified that he originally believed that Patrick McGail was
the shooter. He even professed such belief during the
investigation to others. But he also testified that, after
receiving the results of ballistics testing, Sowers was the
shooter. At trial, there was absolutely no dispute that Jason
Sowers was the one who discharged the firearm that killed
[*26] We now turn to the defense mistrial motion. The trial
court considered the motion as a motion for a new trial under
Crim. R. 33(A)(2), and so shall we. In the affidavit in
support of the motion, in relevant part, juror Spiers
3. My decision was influenced to vote "Guilty" when
the jury foreman [D.W.] told the jury that he goes to St.
Patrick's church the same church that Patrick McGail
testified going to and that he had never seen Patrick or his
family at that church, so he must be lying.
4. This information influenced me to not believe
5. As a result of [D.W.'s] personal representation, I
found Patrick McGail "Guilty." 6. Additionally,
during the deliberations several of the jurors discussed how
Patrick would not give police the password to search his
7. I do not remember any testimony regarding Patrick not
providing his password to police.
8. One of the jurors named [T.H.] admitted to me that he read
the newspaper articles about this case.
9. [T.H.] discussed one of these articles to me on the final
day of deliberations.
10. From [T.H.'s] discussion, these articles were slanted
against Patrick McGail's innocence, including stating
that Patrick was the shooter.
11. [T.H.'s] representation about what the paper stated
also influenced my decision to find Patrick McGail guilty.
12. [T.H.] also brought his wife to the trial to watch; and
she would converse with him during the breaks.
13. During deliberations, I asked the Jury Foreman, [D.W.] to
submit a question to the judge asking what would happen if we
could not reach a unanimous verdict, but he refused to submit
14. If I had known that there was an option to hold out my
vote I would have done so.
(Spiers affidavit accompanying Doc. #60).
Regardless of the nature of Spiers' allegations, Ohio
Evid.R. 606(B) plainly precluded McGail from obtaining a new
trial based on them. The rule "governs the competency of
a juror to testify at a subsequent proceeding concerning the
original verdict." State v. Schiebel, 55 Ohio
St.3d 71, 75, 564 N.E.2d 54 (1990). It 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 that or any other
juror's mind or emotions as influencing the juror to
assent to or dissent from the verdict or indictment or
concerning the juror's 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. A juror's
affidavit or evidence of any statement by the juror
concerning a matter about which the juror would be precluded
from testifying will not be received for these purposes.
(Emphasis added.) Evid.R. 606(B).
This requirement of outside evidence of misconduct is the
aliunde rule[.]" State v. Kirkby, 9th Dist.
Summit Nos. 27381, 27399, 2015-Ohio-1520, P 11. Aliunde
evidence is other distinct or independent evidence beyond
that offered by a juror himself.
The State of Ohio v. Gleason,
110 Ohio App.3d 240,
245, 673 N.E.2d 985 (9th Dist.1996). As the Ohio Supreme