Incomplete Record of Juror Dismissal, Substitution of Alternate During Deliberations Require New Trial
2008-1012. State v. Clinkscale, Slip Opinion No. 2009-Ohio-2746.
Franklin App. No. 06AP-1109, 177 Ohio App.3d 294, 2008-Ohio-1677. Judgment reversed and cause remanded.
Moyer, C.J., and Pfeifer, O'Connor, and Lanzinger, JJ., concur.
Lundberg Stratton, O'Donnell, and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-2746.pdf 
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(June 17, 2009) The Supreme Court of Ohio ruled today that in a criminal trial involving a capital offense, the court must make a record of proceedings in which a deliberating juror is dismissed and an alternate juror is seated.
In a 4-3 majority opinion authored by Justice Judith Ann Lanzinger, the Court also held that under a former Ohio rule of criminal procedure, a trial court hearing a capital case was barred from replacing a juror with an alternate after the jury had begun its deliberations. Based on those rulings, the Court vacated the 2006 murder conviction of David Clinkscale of Columbus and remanded his case for a new trial.
Clinkscale was originally tried and convicted in 1998 for the aggravated murder of Kenneth Coleman and the attempted murder of Todne Williams during a robbery. The charges against Clinkscale included death penalty specifications, however the jury recommended and the court imposed a sentence of life imprisonment without the possibility of parole. In 2004, the U.S. Sixth Circuit Court of Appeals vacated Clinkscale’s conviction and ordered that he receive a new trial based on a finding that he had received ineffective representation by his trial attorneys.
A second trial was conducted in the Franklin County Court of Common Pleas in September 2006. At the conclusion of arguments on the afternoon of Friday, Sept. 8, the jury retired to deliberate. Later that afternoon the foreman sent a note to the judge stating that one juror “was not comfortable returning a guilty verdict based on the testimony of a single witness,” that the juror did not believe “a guilty verdict could ever be returned without more evidence,” and that it seemed unlikely that additional time or discussion would resolve the situation. The note asked the court for guidance. Without responding to the inquiry, the judge excused the jurors for the weekend and told them they would receive additional instructions on Monday.
When court reconvened the following Monday, Sept. 11, a substitute judge presided over the proceedings. Before the jury was seated, the judge and counsel for each party discussed the court’s forthcoming response to the jury’s unanswered question from Friday. The judge called the jury into the courtroom and then stated, “We have had a juror that has a medical issue who has been excused. So, at this time we are going to swear in the first alternate ” There was no discussion on the record between the court and the parties regarding the process by which the substitute judge had dismissed the original juror or the seating of an alternate after the jury had begun deliberating. Neither party’s counsel objected to the dismissal of one juror or the swearing in of the alternate. The judge then gave the jury a supplemental instruction responding to the question that had been raised on the preceding Friday, and the reconstituted jury retired to the jury room. Later the same day the jury returned guilty verdicts on all counts.
Three weeks later, at a sentencing hearing with the original judge again presiding and before the jury was called into the courtroom, Clinkscale’s attorney stated that he wanted to address the dismissal of the deliberating juror, with the intention of putting the proceedings that had resulted in that dismissal on the record. After the parties expressed differing recollections of what had taken place at the time the original juror was excused, the judge ended the discussion by stating that he assumed there was a record of those proceedings and that record would not be changed. Following that discussion, the jury was admitted to the courtroom for the sentencing phase. It recommended a life sentence with parole eligibility after 30 years for the murder conviction. The court added time for additional charges on which Clinkscale had also been convicted, and sentenced him to prison for 53 years to life.
Clinkscale appealed, asserting among other claims that the substitute judge had improperly met with the excused juror and approved her dismissal without creating a record of those proceedings and had violated a state rule of criminal procedure by seating an alternate juror after deliberations in his case had begun. The 10th District Court of Appeals voted 2-1 to affirm the trial court’s verdict and sentence. Clinkscale sought and was granted Supreme Court review of the 10th District’s rulings with regard to the excusal of the original juror and appointment of the alternate juror.
In today’s majority opinion, Justice Lanzinger wrote: “The conversation between the substitute judge and the dismissed juror was not put on the record, and the parties offer differing accounts of the proceedings on that morning. The Rules of Criminal Procedure provide that ‘[i]n serious offense cases, all proceedings shall be recorded.’ ... The Rules of Appellate Procedure offer additional instructions specific to capital trials: ‘In all capital cases the trial proceedings shall include a written transcript of the record made during the trial by stenographic means.’ ... When considered together, the Rules of Criminal Procedure and the Rules of Appellate Procedure clearly require that a complete and accurate record be created in capital cases. The reason for this is simple: the unique nature of capital cases demand a heightened level of care in constructing the record to guarantee regularity of the proceedings and assist in appellate review.”
While acknowledging that the Supreme Court’s 1997 decision in State v. Palmer held that minor omissions from a trial record do not warrant reversal if the defendant did not request that omitted matters be recorded or show that he suffered prejudice because of the omissions, Justice Lanzinger observed: “It is important to emphasize, however, that Palmer addresses the failure to record relatively unimportant portions of a trial. In Palmer, this court noted that most of the conferences at the bench and in chambers were recorded and that ‘all crucial aspects of the case’ were recorded. ... None of the unrecorded conferences concerned a matter as important as the dismissal of a deliberating juror. In marked contrast to the portions of the Palmer trial that went unrecorded, the recording of proceedings related to the dismissal and replacement of a deliberating juror is of critical importance to protecting a defendant’s constitutional rights. Because the composition of the jury in a capital case implicates important constitutional rights, we decline to extend the holding of Palmer to encompass a trial court’s failure to record proceedings relating to the dismissal of a juror in a capital case after the jury has begun its deliberations.”
She also noted that while Clinkscale’s attorney did not enter an immediate objection to the absence of a record of the dismissal proceedings, he did initiate a subsequent discussion on the record in an attempt to clarify the record regarding the original juror’s dismissal that was “sufficient to alert the trial court that the record was inadequate.”
“Finally,” wrote Justice Lanzinger, “Clinkscale suffered material prejudice from the trial court’s failure to make a record of the dismissal of the juror. We cannot determine whether the trial court obtained a waiver or consent from either party before dismissing the juror. We are also left to speculate about the reason the juror asked to be removed, the true severity of the juror’s health problem, whether the trial could have been continued, or whether any alternative measures may have been taken to address the situation. Most significant, perhaps, is that we are unable to determine whether the substitute judge’s action affected any of Clinkscale’s constitutional rights, because we are unable to discern whether the juror was, as argued, a lone dissenting juror who wished to be dismissed for this reason. ... In light of the prejudice suffered by appellant because of the trial court’s failure to record the proceedings in question, and given appellant’s notification to the trial court of the omission in the record, we hold that the failure to record the proceedings relating to the juror’s dismissal in this capital case violated appellant’s due process right to a fair trial, and appellant’s conviction must be reversed.
With regard to Clinkscale’s assignment of error based on the seating of an alternate juror after the jury in his case had begun its deliberations, Justice Lanzinger wrote: “Despite the clear statement in former Crim.R. 24(G)(2) that no alternate juror is to be substituted during any deliberation, the judge dismissed a juror and seated an alternate during the deliberation of guilt. Such a clear violation of the Rules of Criminal Procedure cannot occur during a capital trial. ... A trial judge may not act in direct contravention to the Rules of Criminal Procedure. Although appellant did not request a mistrial, the violation of former Crim.R. 24(G)(2) constitutes reversible error.”
Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor.
Justice Terrence O’Donnell entered a dissent, joined by Justices Evelyn Lundberg Stratton and Robert R. Cupp, in which he disputed the majority’s holding that the errors raised by Clinkscale entitle him to a new trial.
He wrote: “Clinkscale did not meet the test established in Palmer. First, he raised no timely objection to the court’s ex parte communication with the juror, its substitution of that juror with an alternate, or its failure to record that part of the proceeding. ... Second, Clinkscale made no effort to comply with App.R. 9(C), which provides: ‘If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection.’ ... Clinkscale did not attempt to prepare an App.R. 9(C) statement to settle any disputed facts in the record. Third, Clinkscale has failed to affirmatively demonstrate any material prejudice. Rather, he presents this court with mere speculation that the substitution of juror number three broke a jury deadlock and resulted in his conviction. ... Therefore, Clinkscale has failed to demonstrate reversible error regarding the trial court’s failure to record its communications with the dismissed juror.”
With regard to the trial court’s violation of Crim.R. 24(G)(2), Justice O’Donnell cited state and federal court decisions holding that, when a defendant fails to timely object to the replacement of a juror with an alternate after deliberations have begun, the jury’s verdict is reversible on appeal only when the defendant makes a showing of “plain error,” i.e., error so severe that it clearly determined the outcome of the case. In this case, he wrote: The record does not show that (the excused juror) alone held out against a guilty verdict, that she sought to be dismissed because she felt pressured to reach a guilty verdict, or that the jury did not begin deliberations anew with the seating of the alternative juror.”
Contacts
Steven L. Taylor, 614.462.3555, for the state and Franklin County prosecutor’s office.
William S. Lazarow, 614.228.9058, for David Clinkscale.