Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McGail v. Noble

United States District Court, S.D. Ohio, Western Division, Dayton

February 20, 2018

PATRICK McGAIL, Petitioner,
JEFFREY B. NOBLE, Warden, London Correctional Institution, Respondent.

          District Judge, Walter Herbert Rice



         This is 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).

         The 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).

         Petitioner 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).

         Procedural History

         This case arises from the armed home invasion of a drug dealer named Nathan Wintrow on October 30, 2013, involving McGail and two co-defendants.[1] 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.

         Two 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.

         McGail 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.

         The State Court Decision and the Positions of the Parties

         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 Nate Wintrow.
[*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 averred:
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 Patrick's testimony.
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 phone.
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 the question.
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 Court ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.