         [Cite as State v. Johnson, 2013-Ohio-2719.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :    APPEAL NO. C-120250
                                                       TRIAL NO. B-1105638-C
        Plaintiff-Appellee,                       :

  vs.                                             :       O P I N I O N.

BRANDON JOHNSON,                                  :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 28, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

David H. Hoffman, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS



F ISCHER , Judge.

        {¶1}   Following a four-week jury trial, Brandon Johnson was convicted of

three counts of passing bad checks, 15 counts of theft, and one count of aggravated

theft based upon his participation in a check-floating scheme.             The trial court

sentenced Johnson to an aggregate prison term of 172 months. In this appeal, he

raises three assignments of error, arguing that comments made by a prosecuting

attorney and a secret service agent to a newspaper reporter, which appeared in a

newspaper article during the middle of his trial, denied him a fair trial; that his

counsel was ineffective for failing to more thoroughly question the jurors during a

voir dire about the article and for failing to impeach the jury’s verdict; and that the

trial court erred in failing to grant a mistrial following publication of the article.

        {¶2}   Because the trial court immediately voir dired each member of the jury

individually, with the participation of counsel, and dismissed the sole juror who had

recalled the specific contents of the article, and because the remaining jurors had limited

exposure to the article, and assured the trial court that they could remain fair and

impartial, Johnson cannot demonstrate that the prosecutor’s published comments

denied him a fair trial or that the trial court abused its discretion in denying his motion

for a mistrial. We further conclude that Johnson’s counsel’s decision not to conduct a

more thorough inquiry during the voir dire of the jury and not to impeach the jury

verdict were matters of sound trial strategy. As a result, we affirm the judgment of the

trial court.

        {¶3}   Johnson was charged in a 51-count indictment with multiple charges of

passing bad checks, theft, aggravated theft, and theft of a motor vehicle. Nine other

defendants were also charged, but were tried separately. Johnson’s jury trial began on

February 21, 2012. During the weekend of March 2-3, 2012, the Cincinnati Enquirer



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published an article online and in the newspaper about Johnson’s case. Although the

article was primarily about a juror in Johnson’s trial being removed for texting during

the trial, the last several paragraphs of the article stated the following:

               [Judge] Martin is presiding over the criminal case against

       Brandon Johnson, one of the accused ring leaders of a group of 10

       people arrested and charged with writing $618,145 in checks on

       accounts with no money in them.

               The money was spent on cars, trucks and supplies and

       equipment to start a construction company, [Assistant Hamilton

       County Prosecutor Andy] Berghausen said.

               Most already have pleaded guilty but the three main

       defendants—Johnson, Scott Neumeister and Faithe Bedel—have yet to

       have their cases resolved.

               The trial is expected to take four weeks before a verdict is

       reached. More charges are expected against the group because the

       total figure authorities believe they stole is $1.2 million.

              Johnson also has similar charges in Indiana’s Ripley and

       Dearborn counties.

       {¶4}    The trial judge saw the article on Saturday morning. When the trial

resumed the following Monday, he questioned the assistant prosecuting attorney, Andy

Berghausen, on the record but outside of the jury’s presence, about the article, asking

him for the source of the information.     Berghausen stated that during a break in the

trial, after the juror had been dismissed for texting, a reporter for the Cincinnati

Enquirer, Kimball Perry, had called him on his cell phone to ask about the matter.

Berghausen told the judge that he had spoken briefly with Perry. When Perry had asked



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him about the facts in the case, he had handed his phone to Secret Service Agent Ron

Axt to answer the reporter’s question.

        {¶5}    The trial judge questioned Agent Axt.       Agent Axt told the judge that

Berghausen had handed him the phone and asked him to give the dollar amount of the

case to Perry. Agent Axt stated that he had given the aggregate amount of money

involved in cases involving all ten defendants, which he had taken from his report.

Although the newspaper article mentioned that similar charges were pending against

Johnson in other counties, Agent Axt told the judge that he did not disclose that

information. Berghausen, likewise, stated that he had no knowledge of those charges

and did not supply any information on the subject. The trial judge heaped harsh

criticism and harsh judgment on Berghausen for speaking to a reporter while the case

was ongoing, and for allowing the agent to speak to the reporter. The trial judge was

also critical of Agent Axt.

        {¶6}    Berghausen admitted that he had exercised poor judgment by speaking

with the reporter and directing Agent Axt to speak with him as well. The trial judge

commented: “I can’t believe the two of you. I just can’t believe how stupid this was,

beyond comprehension. Two weeks of trial, and risking a mistrial with this.”

        {¶7}    The trial judge then asked defense counsel about the article. When

defense counsel stated that the article was prejudicial to his client, the trial judge agreed.

He asked Johnson’s counsel if he was moving for a mistrial.          When defense counsel

answered affirmatively, the judge stated:

        The only thing I know to do right now is to bring the jurors in one by one,

        however long that takes, and ask them if they’ve seen it. And then try and

        gauge from there what the damage has been, if any, and then make a

        separate determination, regardless of what they tell me, whether they are



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       being straight with me or not, and this just gets –first off, I’m not

       presiding over a 51-count theft case. I believe it’s 19. That’s all Jess is

       typing, I believe, is 19 counts. And this is beyond belief to me. So that’s

       what we’ll do.

       {¶8}    When court was back in session, the trial court addressed the jury on the

record as follows:

       Ladies and gentlemen, I’ve given you no admonitions about not reading

       the newspaper in this case simply because I didn’t think there was any

       way there was going to be any media coverage, but it did happen on

       Saturday. It’s been on the Enquirer website for a while. And so what I’m

       going to have to do is voir dire each one of you; in other words, I’ll have to

       bring each of you in one at a time and ask you some questions. I just

       want honest answers. There’s no right or wrong answer to it. And then

       we’ll go from there.

       As with everything else, you can’t discuss it amongst yourselves at all, or

       anyone else, discuss how Reds Spring training is going. I think they

       franchise Taggs, the Bengals did, but whoever that was, you can discuss

       the relative merits of that, but you can’t discuss the case, okay? So just go

       back to the jury room right now and we’ll bring you out one at a time.

       {¶9}    The judge then conducted an individualized voir dire of each juror,

including the alternate, with both the state and defense counsel participating. Only four

jurors admitted reading the article. The first remembered only the fact that the article

stated the case could take up to four weeks.      The second stated that she had read it

quickly, and did not remember the facts of the case. She said the only thing that stood

out was the fact that a juror had been dismissed. The third juror said there was nothing



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in the article not mentioned in court already, except for the amount of money

mentioned. When the trial court asked the three jurors if they could decide the case

based on what they had heard in the courtroom and not on the information in the

article, all three jurors stated that they could be fair and impartial and decide the case on

the evidence presented.

       {¶10} The fourth juror, Juror No. 11, said that she “was a little upset” about

seeing the article “because [she] felt that the report had to come from someone directly

in the courtroom, and the prosecutor was quoted, so [she] thought it had to come from

him, and [she] just wondered why.” When the trial court asked her if she could

remember specific details from the article, she said that she remembered the article

mentioned

       a ring of ten, which [she] knew there were many people involved, but she

       didn’t think of it in that way. Also, [she] realized there would be a lot

       more to continue to come because they said this is probably going to go

       four weeks instead of, you know, the anticipated three. And then there

       was a money amount. Now [she] couldn’t remember from opening

       statements whether there was–that had been information that had

       actually been given to us or not.

       {¶11} The trial court then asked Juror No. 11 if she could “disregard what was in

the article and decide this case based on what you hear in here or do you think this has

created kind of a problem for you to proceed?” The trial court further stated, “And

there’s no right or wrong answer. We just need an honest one.”

       {¶12} Juror No. 11 responded, “No, I think that I can proceed. I can tell you that

I was upset that the defendant’s picture was there. I thought that was unfair that that

was there, but ---.”   The trial court then asked counsel for the state and Johnson if they



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had questions.     The assistant prosecuting attorney asked Juror No. 11 if she had

discussed the article with the other jurors, or if she had shared her “thoughts or

observations based on having read that article?” Juror No. 11 replied, “No, we said

nothing.”

       {¶13} At the conclusion of voir dire, the trial judge, with the agreement of the

assistant prosecuting attorney and defense counsel, dismissed Juror No. 11. The judge

then continued the case to give defense counsel an opportunity to research the case law

in support of his motion for a mistrial. After hearing argument, the trial judge overruled

the motion. He stated that he had questioned the jurors and had also given both counsel

the opportunity to do so, and that each juror “had indicated that they could still decide

the case fairly and impartially.”     He further stated that under the totality of the

circumstances, the 12 seated jurors could be fair. For the remainder of the trial, the trial

judge admonished the jurors before their dismissal each day that they were not to watch

or read any news reports about the case.

       {¶14} In his first assignment of error, Johnson argues that the assistant

prosecuting attorney committed prosecutorial misconduct when he provided a

statement to Perry, the reporter for the Cincinnati Enquirer, regarding evidence that

he did not intend to produce at trial.

       {¶15} In order to succeed on his claim, Johnson must not only demonstrate

that the prosecutor’s questions or remarks were improper, but that they also

prejudicially affected his substantial rights. See State v. Smith 14 Ohio St.3d 13, 470

N.E.2d 883 (1984).       The state argues that the assistant prosecuting attorney’s

conduct was not improper. But we need not reach this issue because Johnson cannot

demonstrate that he was prejudiced by the comments in the article. The comments

were made following the second week of a four-week jury trial, after the state had



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produced a significant amount of evidence against Johnson.               The trial judge,

moreover, examined each jury member individually about their exposure to the

article and determined that for all but one juror, whom the judge subsequently

dismissed from the panel, the article would not affect their ability to decide the case

fairly and impartially.

       {¶16} Here, the judge’s thorough voir dire dispelled any notion that the

jurors had read or retained any prejudicial details not presented at trial. Because the

trial judge’s actions cured any error regarding the comments in the article, we cannot

say the alleged misconduct caused prejudice to Johnson’s case and denied him a fair

trial. We, therefore, overrule his first assignment of error.

       {¶17} In his second assignment of error, Johnson argues that he was denied

the effective assistance of counsel. To prevail on this claim, Johnson “must show that

his counsel’s representation fell below an objective standard of reasonableness” and

that he was prejudiced by counsel’s deficient performance. Strickland v. Washington,

466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is demonstrated

by a showing “that there is a reasonable probability that, but for the errors, the result of

the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine the confidence in the outcome.” Id. at 694. Both prongs must

be met to demonstrate ineffective assistance of counsel. Id. at 697. Moreover, it is

presumed that a properly licensed attorney is competent. State v. Phillips, 74 Ohio

St.3d 72, 85, 656 N.E.2d 643 (1995). Further, ineffective assistance cannot be based on

debatable tactical decisions. Id.

       {¶18} Johnson first argues that his counsel provided ineffective assistance by

failing to vigorously question the jurors during the individualized voir dire about the

newspaper article.        But the Ohio Supreme Court, in addressing claims of



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ineffectiveness, has held that “voir dire by defense counsel does not have to take a

particular from, nor do specific questions have to be asked.” State v. Evans, 63 Ohio

St.3d 231, 247, 586 N.E.2d 1042 (1992); State v. Adams, 103 Ohio St.3d 508, 2004-

Ohio-5845, 817 N.E.2d 29 ¶ 43, 61-67; see State v. Mundt, 115 Ohio St.3d 22, 2007-

Ohio-4836, 873 N.E.2d 8828, ¶ 64. “Counsel, moreover, is in the best position to

determine whether a potential juror should be questioned and to what extent.” State

v. Murphy, 91 Ohio St.3d 516, 539, 2001-Ohio-112, 747 N.E.2d 762 (2001).

       {¶19} Here, the judge’s inquiry, supplemented by that of defense counsel and

the assistant prosecuting attorney, was sufficient to probe the issue of the juror’s

fairness and impartiality. Moreover, defense counsel could be said to have engaged

in sound trial strategy by not asking the jurors further questions about the article.

Inquiring more about the article with those jurors who had indicated that they had

not read the article but had only heard peripherally about the article might have

fostered infelicitous speculation.    And further detailed questioning by defense

counsel of those jurors who had read the article could have drawn the juror’s

attention to the very information defense counsel had deemed prejudicial and was

trying to keep from them. Thus, we cannot conclude that counsel’s performance was

deficient. Moreover, we must presume that the jury reasonably, conscientiously, and

impartially considered the judge’s questions.      Because there is no evidence that

further questions would have changed the outcome of the trial, Johnson cannot show

that any prejudice resulted. As a result, we find his first argument meritless.

       {¶20} Johnson also argues that defense counsel was ineffective for not

attempting to impeach the jury’s verdict. He argues defense counsel should have

asked the jurors the extent to which their misconduct affected the verdict. But we




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conclude that any attempt to impeach the verdict in this way would have violated

Evid.R. 606(B). Evid.R. 606(B) provides, in pertinent part, that

        [u]pon 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.

See State v. Hessler, 90 Ohio St.3d 108, 123, 732 N.E.2d 1237 (2000).

        {¶21} Here, nothing in the court’s voir dire or the jurors’ responses

substantiates Johnson’s claim that the jurors “had so clearly been tainted with

reports of false information and the threat of a four week trial.” Instead, the record

demonstrates that the remaining jurors were not unduly influenced by their

exposure to the article and that they could be fair and impartial in deciding

Johnson’s case. Johnson, moreover, does not argue that he was in possession of any

evidence outside the jurors’ voir dire responses to prove that they were improperly

influenced by extraneous information. Without such evidence, it would have been

feckless for defense counsel to attempt to impeach the jury’s verdict. We, therefore,

conclude that defense counsel’s decision to refrain from doing so constituted sound

trial strategy.




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       {¶22} Johnson’s reliance upon Farrer v. State, 2 Ohio St. 54 (1853) is also

misplaced. In that case, a jury took a newspaper article, said to contain part of the

judge’s charge, into the jury room and used it during deliberations. Additionally,

“some of the jurors held communications with their friends and acquaintances in the

street” by speaking from an open window of the jury room. But we conclude that this

factual scenario is so far removed from the circumstances of Johnson’s case that it

has no application. Based upon our review of the record, we cannot conclude that

defense counsel rendered ineffective assistance in his handling of the matter. We,

therefore, overrule the second assignment of error.

       {¶23} In his third assignment of error, Johnson argues that the trial court

erred in denying his motion for a mistrial.

       {¶24} A court should declare a mistrial “only when the ends of justice so

require and when a fair trial [i]s no longer possible.” State v. Palmer, 1st Dist. No. C-

060754, 2007-Ohio-6870, ¶ 19, rev’d on other grounds, State v. Palmer, 120 Ohio

St.3d 322, 2008-Ohio-6251, 898 N.E.2d 960. The Ohio Supreme Court has held that

great deference should be given to a trial court’s discretion “in recognition of the fact

that the trial judge is in the best position to determine whether the situation in his

courtroom warrants the declaration of a mistrial.” State v. Glover, 35 Ohio St.3d 18,

19, 517 N.E.2d 900 (1988). The Supreme Court “has declined to apply inflexible

standards, due to the infinite variety of circumstances in which a mistrial may arise.”

Id. at 19. We review a trial court’s decision to deny a motion for a mistrial under an

abuse of discretion standard. State v. Williams, 6 Ohio St.3d 281, 452 N.E.2d 1323

(1986).

       {¶25} In his motion for a mistrial, Johnson relied heavily on the Ohio

Supreme Court’s decision in State v. Craven, 35 Ohio St.2d 18, 298 N.E.2d 597



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(1973). He argued that the article published in the Cincinnati Enquirer was so highly

prejudicial that any harm from the article could not be cured by the trial court’s

subsequent solicitation of assurances from the jurors that they could be fair and

impartial.

       {¶26} In Craven, the defendant was charged with carrying a concealed

weapon. During the course of the trial, the prosecutor asked both a defense witness

and the defendant whether they had sold heroin.        He specifically asked Craven

whether the police had found $35,000 worth of heroin in his home, a fact clearly

unrelated to the charge of carrying a concealed weapon. Additionally, a newspaper

article was published about the case during the time the jurors were deliberating. It

included the fact that the defendant had been convicted in federal court of heroin

and weapons charges and was awaiting sentence. Id. at 18-19.

       {¶27} At the defense’s request, the trial judge referred to the news coverage

and asked the jury, en mass, “May I ask you how many of you heard or read anything

about it? Ask you further if it had any effect whatsoever on your verdict?” Only a few

jurors answered the judge, and no individualized voir dire or further inquiry was

made. Immediately after the guilty verdict was returned, defense counsel entered

the jury room and found the very newspaper article about which the jurors had been

asked. Id. at 19-20.

       {¶28} The Ohio Supreme Court, citing its prior decision in State v. Doll, 24

Ohio St.2d 130, 265 N.E.2d 279 (1970), and the United States Supreme Court’s

decision in Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250

(1959), held that “the fact that the jurors saw and read newspaper articles, thus

becoming aware of other inflammatory evidence in this improper manner together

with the combination of prejudicial improprieties, [could] not be cured by judicially



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solicited assurances from the jurors to the effect that each was not influenced

thereby.” As a result, the Supreme Court remanded the case for new trial. Craven,

35 Ohio St.2d at 22, 298 N.E.2d 597.

       {¶29} In State v. Dute, 1st Dist. No. C-020709, 2003-Ohio-2774, ¶ 25, this

court held that the trial court had erred in failing to grant a mistrial where seven of 12

jurors had indicated that they had read or heard media stories about the defendant’s

case, the stories had erroneously reported that Dute and her husband had been

previously charged with and or convicted of pandering obscenity, the same crime for

which they were standing trial, the information was highly prejudicial, and the trial court

had failed to conduct a meaningful voir dire of those jurors who had indicated that they

had seen or read the media reports.

       {¶30} In our analysis in Dute, we acknowledged that Marshall, which the Ohio

Supreme Court had relied upon in Craven, had been limited by the United States

Supreme Court in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589

(1975). See Dute at ¶ 22. In Murphy, the Supreme Court had clarified that Marshall

was not a constitutional ruling that applied to state courts and that previous cases

applying Marshall to states’ cases “cannot be made to stand for the proposition that

juror exposure to information about a state defendant’s prior convictions or to news

accounts of the crime with which he is charged alone presumptively deprives the

defendant of due process.” Murphy at 799. The Murphy court held that courts should

employ a “totality of the circumstances test” in determining whether a trial is

fundamentally unfair. Id. We declined to apply a specific rule in Dute, holding instead

that under either the Marshall, Doll, and Craven “per se” prejudice test or the Murphy

totality-of-the-circumstances test, the trial court had erred in refusing to grant Dute’s

motion for a mistrial. Dute at ¶ 25.



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       {¶31} We find both Craven and Dute to be distinguishable from the case

before us. In Craven, the trial court’s voir dire was directed at the entire jury at once,

and followed numerous attempts by the prosecutor to present the same inadmissible

evidence that the jury had read in the article in question. Similarly, in Dute, seven of

the 12 jurors had indicated that they had heard or read media reports concerning

Dute, yet the trial court refused to examine the jurors individually to determine what

they had read or heard concerning the case, and whether they could still be fair and

impartial. Here, however, the trial court, after learning about the newspaper article,

conducted an individualized voir dire of each jury member, thereby preventing the

spread of any prejudicial information to the other jury members. To encourage

candor during the questioning, the court stated at several points during the voir dire,

that there were no right or wrong answers, and both the state and defense counsel

were afforded the opportunity to ask follow-up questions of each juror.

       {¶32} Similarly, in this case, the newspaper article’s mention of possible

charges “against the group” and Johnson’s “similar charges in Indiana’s Ripley and

Dearborn counties,” while not constituting facts in evidence, was incomparable to

the mention of a federal conviction on heroin charges in Craven’s trial for carrying

concealed weapons and to the mention of a previous charge and conviction for

pandering obscenity in Dute’s trial for pandering obscenity.

       {¶33} Our review of the court’s voir dire in Johnson’s case, moreover, reveals

that most jurors did not read the article and that they had made it clear to others that

they did not want to know about the article, despite the lack of an instruction

directing them not to do so. The three jurors who had read the article and were

retained following voir dire, stated that they had little memory of the article,

disregarded what they had read, and, in one instance stated that the article contained



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“nothing that hadn’t already been presented in court, except maybe some money they

mentioned.” None of the remaining jurors even remembered the statements about

possible pending charges. The jurors’ responses showed they could be fair and

impartial, and that no prejudice occurred due to their limited exposure to the article.

       {¶34} Because the trial judge was in the best position to determine the

credibility of the jurors and whether the article would affect the fairness of the trial,

and because the record supports his determination that the resulting panel could

decide Johnson’s case impartially, we cannot say that the trial court abused its

discretion in denying Johnson’s motion for a mistrial. We, therefore, overrule the

third assignment of error and affirm the judgment of the trial court.
                                                                  Judgment affirmed.

HILDEBRANDT, P.J., concurs.
HENDON, J., concurs separately.

HENDON, J., concurring separately.


       {¶35} I join in the majority opinion, but write separately because I am

troubled by the actions of the assistant prosecuting attorney in this case. I recognize

that the news media is free to investigate any pending criminal matter, and that

neither party can prevent the media from reporting information the media may

discover during its own investigation of a case.

       {¶36} But an assistant prosecuting attorney, directly or indirectly through a

third party, is not free to give the news media information about a pending case that

the news media does not already possess which, if printed, could well taint a

prosecution already in progress.




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       {¶37} The decision in this case should not be interpreted as an approval of

the assistant prosecutor’s conduct, nor construed to read that similar actions in the

future might be overlooked as harmless error.

       {¶38} Here, the assistant prosecuting attorney’s actions would have resulted

in a mistrial in the second week of a four-week jury trial, at a great expense to the

county and the defendant, were it not for the exceptional handling of the matter by

the trial judge.


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




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