         [Cite as State v. Finnell, 2018-Ohio-564.]

                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-160815
                                                          TRIAL NOS. B-1305265-B
        Plaintiff-Appellee,                           :              B-1306715

  vs.                                                 :

KYLE FINNELL,                                         :    O P I N I O N.

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgments Appealed From Are:                 Vacated in Part, Reversed in Part, and Cause
                                             Remanded

Date of Judgment Entry on Appeal: February 14, 2018


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.
                     OHIO FIRST DISTRICT COURT OF APPEALS



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


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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,




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       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 presented before a juror may testify.

       {¶8} On appeal, we concluded that the trial court had erroneously ruled on

the motion for a new trial after the judge had recused himself. State v. Finnell, 1st

Dist. Hamilton Nos. C-140547 and C-140548, 2015-Ohio-4842, ¶ 47. We vacated the

order and remanded the cause for a new hearing on the motion. Id. at ¶ 77. Upon

remand, the case was reassigned to another judge.

                            Proceeding upon Remand

       {¶9} Substitute counsel for Finnell filed a motion to “Disclose Juror

Information” asking the trial court to disclose juror contact information under seal to

enable Finnell to secure their testimony for the hearing on the motion for a new trial.

In the motion, Finnell’s counsel argued that the jurors were permitted to testify

under Evid.R. 606(B) because “a juror may testify without the presentation of any

outside evidence concerning any threat * * *.”

       {¶10} But, significantly, at the hearing on the motion, Finnell’s counsel did

not argue that the jurors could testify under Evid.R. 606(B) because of the issues of

intimidation, and counsel did not inform the trial court that the state had stipulated



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previously to the issues of juror intimidation. Instead, counsel argued that Evid.R.

606(B) permitted jurors to testify on the question of whether extraneous prejudicial

information was improperly brought to the jury’s attention. Counsel continued that

she also had outside information from the bailiff who had spoken with the jurors,

and she would present this evidence during the hearing on the motion for a new trial.

The state argued the testimony from the bailiff would not be firsthand information

because the bailiff did not see what happened outside of the courthouse.         And

because there was no outside evidence, disclosure of the jurors’ contact information

was not justified under Evid.R. 606(B).

       {¶11} The trial court denied the motion for a new trial because the record

contained no “independent evidence that would allow the court to grant the motion.”

       {¶12} After the motion for the juror information was denied, the trial court

conducted the hearing on the motion for a new trial. Finnell testified that as he was

leaving the courthouse, he was standing in the small area by the side door waiting for

someone with a security badge to open the door. At the time, he was talking on the

phone. When the door was opened, he walked to the front of the courthouse, and

waited for his ride. He did not remember seeing any jurors while he was talking on

the phone or waiting for his ride home. He further testified that he did not attempt

to intimidate, influence, or threaten any of the jurors during the trial. No other

evidence was submitted to the court.

       {¶13} Finnell argued that the court should grant the motion for a new trial

because there was a question as to whether the jury was fair and impartial during

deliberations due to the perceived intimidation.       Additionally, the jurors had

committed misconduct by failing to report the contact to the trial court immediately.



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The state argued that the motion should be denied because there was no evidence

that the jurors were intimidated or threatened.

       {¶14} The trial court denied the motion because Finnell failed to submit any

evidence or affidavits demonstrating juror misconduct as required by Crim.R. 33(C).

       {¶15} Finnell appeals raising two assignments of error.

                      Ineffective Assistance of Counsel

       {¶16} We address the assignments of error out of order because Finnell’s

second assignment of error is dispositive. In his second assignment of error, Finnell

argues that his trial counsel was ineffective, in violation of his constitutional rights.

Finnell contends counsel failed to explain to the court that the jurors were competent

to testify in support of his motion for a new trial on the issue of a perceived threat or

attempted threat that affected their deliberations, without any outside evidence in

support, as provided by the exception under Evid.R. 606(B), and therefore, he was

entitled to the juror information under seal. We agree.

       {¶17} To establish a claim for ineffective assistance of counsel, the defendant

has the burden of demonstrating that: 1) the performance of defense counsel was

seriously flawed and deficient; and 2) there is a reasonable probability that the result

of the proceeding would have been different had defense counsel provided proper

representation. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984).

       {¶18} The record in this case suggested that some jurors had perceived

potential intimidation by the defendant. Importantly, at the first hearing on the

motion for a new trial the parties stipulated to the existence of issues of juror

intimidation. However, following our remand and reassignment to a different judge,



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at the hearing on the motion to disclose juror information, substitute counsel failed

to inform the trial court of the stipulation or argue that the stipulation allowed the

jurors to testify under the exception in Evid.R. 606(B) without outside evidence in

support.   Under these facts, counsel’s failure to argue that the jurors could be

competent to testify in support of the new trial motion was deficient.

       {¶19} Moreover, the failure prejudiced Finnell. Had counsel presented the

proper argument, there is a reasonable probability that the court would have granted

the motion and disclosed the juror contact information under seal so that Finnell

could secure the jurors’ testimony in support of his motion for a new trial.

Therefore, Finnell’s second assignment of error is well-taken, and his first

assignment of error, which argued that the trial court erred in denying both motions,

is rendered moot.

                                     Conclusion

       {¶20} Accordingly, we sustain the second assignment of error. The judgment

of the trial court denying the motion to disclose juror information is reversed, and

the order denying the motion for a new trial is vacated. We remand the cause with

instructions to the trial court to release the juror information under seal and for

further proceedings consistent with this opinion and the law.

                                                                Judgment accordingly.

CUNNINGHAM, P.J., and DETERS, J., concur.




Please note:
       The court has recorded its own entry this date.




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