Merit Decision: Juror Misconduct, Mistrials and Double Jeopardy. State v Gunnell.

On July 19, 2012, the Supreme Court of Ohio handed down a merit decision in State v. Gunnell, 2012-Ohio-3236.  The issue in this state’s appeal is whether a mistrial was properly granted. If not, double jeopardy barred retrial.

 The Background Facts

This is a very messy case. Toneisha Gunnell and three other women drove to a shopping mall in Springfield Ohio to steal clothes. As Gunnell and two of the others ran out of Macy’s with stolen clothes, a Macy’s loss-prevention agent tried to stop them. The fourth woman was the get-away driver. The three women jumped into the car, which accelerated rapidly. Seeing the agent attempting to chase after the get-away car, a bystander waived his arms to try and stop the car, which struck him and sped away.  The bystander died at the scene from his injuries. The following day, all four women turned themselves in to the police.

First Trial

The four defendants were tried together on one count each of felony murder, aggravated robbery, involuntary manslaughter, and theft. Each was found guilty on all counts, and sentenced accordingly.

Gunnell’s first conviction (and that of the other three defendants) was overturned by the Second District Court of Appeals because of a Batson violation.

Second Trial

Gunnell was again tried together with the other three defendants, in a second trial. This second trial ended in a mistrial, and is the subject of this merit decision.

Late at night during the first day of deliberations of the second trial, the jury asked the trial court for a definition of the word “perverse,” as it had been used as part of the jury instruction on recklessness, but the judge did not give one. The next morning, one of the jurors (juror #6) was in the jury room with two pieces of paper, which the bailiff noticed and took from her. One contained a handwritten definition of the word perverse.  The other was a print-out on involuntary manslaughter.  Juror #6 admitted she had done outside internet research on the latter.

The trial judge held a short hearing on the matter.  He questioned the juror before the parties, but asked no questions about bias or prejudice, or the juror’s ability to disregard the information she had discovered on her own. He invited follow-up questions from counsel, but there were none.

Replacing the juror with an alternate was not an option under then-existing Crim.R.24. Initially, the prosecution stated a preference for a mistrial, but then took the position that Juror # 6 had to be strongly instructed to ignore the print-out and follow the law, and to assure the court and the parties that she could. The defendants all agreed a curative instruction was the appropriate response.

Mistrial Declared in Second Trial

After the hearing, the state moved for a mistrial, pretty much at the judge’s invitation. The judge granted the motion, finding that Juror #6 had been irreparably tainted, that she would taint the other jurors with the definitions she brought in, and that no admonition could cure the problem, given her disregard of the earlier admonitions.

All four defendants then unsuccessfully sought habeas corpus relief in federal court. One, the driver, Renada Manns, pled her case out after this.

Third Trial

At this point the state re-tried the remaining three defendants—Gunnell, Mahogany Patterson, and Alicia McAlmont. All three were convicted of all charges. The convictions of all three were reversed by the Second District Court of Appeals, for two different reasons. In the cases of Gunnell and McAlmont, the Second District Court of Appeals reversed on the grounds that double jeopardy barred retrial because there had not been a manifest necessity for the mistrial declared at the second trial. (Patterson’s case involved other issues. After the state appealed to the Supreme Court of Ohio, Patterson negotiated a plea agreement for herself.) The high court accepted the state’s appeal in Gunnell’s and McAlmont’s cases, but held State v. McAlmont  for the decision in the Gunnell case. In a 4-3 decision authored by Chief Justice O’Connor, the Supreme Court of Ohio upheld the decision of the court of appeals on its holding that double jeopardy barred retrial.

U.S. Supreme Court Precedent: The Manifest Necessity Requirement

Under existing U.S. Supreme Court precedent in Arizona v. Washington the state must demonstrate manifest necessity for any mistrial declared over the defendant’s objection.  What constitutes “manifest necessity” is left to the sound discretion of the trial court, varies under the facts and circumstances of the particular case, and is not susceptible to any mechanical application.

Majority Opinion

Chief Justice O’Connor wrote that “although a trial judge’s determination of juror bias is entitled to great deference, it must be predicated on the judge’s proper discretion in hearing the case.  Mere supposition, surmise, and possibility of prejudice are not sufficient.” The Court found that the inquiry of Juror #6 was “limited and ineffective,” failing to uncover what bias, if any, resulted from the juror’s independent research, or whether that bias, if it existed, could be cured by further instruction. In short, there was no meaningful inquiry in this case into the bias of Juror #6, and while there was clearly juror misconduct in the case, prejudice from that conduct was not established. The majority also made it absolutely clear that the burden remains on the state to justify a mistrial by showing a manifest necessity.

Separate Concurrences

Justice Lanzinger agreed with the majority, but wrote separately on three issues—the appealability of the denial of a motion to dismiss, the duty of a trial judge in ruling on a motion for a mistrial, and “technological aspects” implicated here.

First, Justice Lanzinger expressed her concern over State v. Crago, which holds in the syllabus that the overruling of a motion to dismiss on the ground of double jeopardy is not a final appealable order.   In the appellate decision in this case, Judge Brogan urged the Supreme Court to revisit Crago—which in 1990 had overruled the unanimous decision in State v. Thomas, finding such an order to be a final appealable order. Justice McGee Brown joined Justice Lanzinger on the need to revist Crago.

Justice Lanzinger also emphasized that when a defendant objects to a mistrial, the state bears the burden of demonstrating manifest necessity for a mistrial (the state had tried to argue otherwise in this case), which she agreed the state did not meet.  She also discussed the use of the internet, noting that while the trial judge clearly informed the jurors that they could only decide the case based on the information presented in the courtroom, it was not clear enough that jurors could not conduct their own independent internet research or use other technology to help them understand the issues in the case. “The prevalent and expanding nature of new media presents trial courts with the challenge of instructing jurors regarding technology that has become an everyday part of their lives,” she wrote.  In short—we need some standard jury instructions on this topic.

Finally, Justice Lanzinger agreed with the lead opinion that the trial court abused its discretion in declaring a mistrial without examining Juror #6 on the question of bias, and without further examining the other jurors.

The Dissent

Justice O’Donnell wrote the dissent, joined by Justices Cupp and Stratton. Relying on U.S. Supreme Court authority holding that a judge properly exercises his discretion to declare a mistrial if the conviction would have to be reversed due to an obvious procedural error in the trial, he would find that the misconduct of Juror #6 was just such a circumstance. She violated the court’s instruction to ignore outside information about the case, and admitted she intended to rely on it in deliberations, and to share some of it with other jurors. After the hearing with Juror #6, the trial court could reasonably conclude that a curative instruction wasn’t adequate under the circumstances. He would find that the court of appeals misapplied the manifest necessity standard, and improperly substituted its judgment for the trial court. He would reverse and remand for retrial.

Concluding observations

At oral argument, Justice O’Donnell asked if this case was just about error correction.  That is interesting, because this case has no syllabus. I think it is unfortunate that the Court didn’t use the occasion to overrule Crago­-surely the overruling of a motion to dismiss on double jeopardy grounds should be a final appealable order. Several of Justice Lanzinger’s reflections at argument were incorporated into her separate concurrence—she noted that none of the other jurors were questioned, nor was the panel brought in and questioned as a whole. She also asked if the jury was specifically instructed not to conduct any internet research, commenting that this case has broad implications because internet access can send jurors far afield from a judge’s instructions. To me, her concurrence urges the drafting of a new standard jury instruction on this topic, which makes it very clear that jurors are not to do any independent internet research. I thought the same thing after oral argument.

Finally, I found it interesting that almost the entire oral argument focused on the misconduct of Juror #6 (all the justices agreed that what she did was improper), and very little on the double jeopardy implications of the mistrial. After the Court of Appeals reversed the trial court’s grant of a mistrial, it ordered Gunnell discharged from custody.  At the time, the state got a stay of that order, but Gunnell and McAlmont are now likely to be freed.  Gunnell has already served about seven years on her term.

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