[Cite as State v. Quinn, 2017-Ohio-7000.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2014-CA-44
                                                 :
 v.                                              :   Trial Court Case No. 2013-CR-869
                                                 :
 JAMES QUINN                                     :   (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                            OPINION

                              Rendered on the 28th day of July, 2017.

                                            ...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio
45502
      Attorney for Plaintiff-Appellee

JAMES QUINN, Inmate No. 699-607, London Correctional Institution, P.O. Box 69,
London, Ohio 43140
     Defendant-Appellant, Pro Se

                                            .............




TUCKER, J.
                                                                                          -2-




       {¶ 1} Following a trial held on March 24-25, 2014, a jury found Defendant-

appellant, James Quinn, guilty of two counts of domestic violence, third degree felonies

in violation of R.C. 2919.25; two counts of kidnapping, first degree felonies in violation of

R.C. 2905.01(A)(2) and (B)(1); one count of abduction, a third degree felony in violation

of R.C. 2905.02(A)(2); and one count of intimidation of a victim in a criminal case, a third

degree felony in violation of R.C. 2921.04(B)(1).        Quinn argues that his resulting

conviction should be vacated because the trial court erred by overruling challenges for

cause he directed at two prospective jurors. We hold that the trial court did not abuse its

discretion when it overruled the challenges for cause, and therefore, we affirm.

                             I. Facts and Procedural History

       {¶ 2} A jury found Quinn guilty as charged on March 25, 2014, at the conclusion of

a two-day trial. At his disposition hearing, held on March 26, 2014, the trial court merged

the two kidnapping offenses with the abduction offense for purposes of sentencing, and

the State elected to proceed on one of the kidnapping offenses. The court sentenced

Quinn to serve consecutive terms of three years’ imprisonment for each of the charges of

domestic violence; 11 years for the merged charge of kidnapping; and three years for the

charge of intimidation of a victim, for a total sentence of 20 years.

       {¶ 3} Quinn appealed his conviction, and in State v. Quinn, 2016-Ohio-139, 57

N.E.3d 379 (2d Dist.), decided on January 15, 2016, we affirmed the trial court’s judgment.

On April 12, 2016, Quinn filed an application to re-open his appeal based upon a claim of

ineffective assistance of appellate counsel, faulting counsel for failing to present

arguments concerning the trial court’s rulings on the challenges for cause he raised during
                                                                                             -3-


voir dire. We granted Quinn’s application to re-open on May 11, 2016. Although we

appointed counsel to represent Quinn for this appeal, he elected instead to represent

himself and filed a motion on October 3, 2016 for leave to proceed pro se. We sustained

Quinn’s motion on October 20, 2016.

                                         II. Analysis

       {¶ 4} For the first of his three assignments of error, Quinn contends that:

              THE      TRIAL     COURT       ERRONEOUSLY            OVERRULED         A

       CHALLENGE FOR CAUSE THAT RESULTED IN THE APPELLANT

       HAVING TO USE A PEREMPTORY CHALLENGE UNNECESSARILY.

       THE     APPELLANT        EXHAUSTED         ALL    OF     HIS    PEREMPTORY

       CHALLENGES BEFORE A FULL JURY WAS SEATED WHICH [SIC] IS

       REVERSIBLE ERROR.1

       {¶ 5} The “Sixth and Fourteenth Amendments to the United States Constitution

guarantee a criminal defendant the right to be tried by an impartial jury.” State v. Priest,

2d Dist. Montgomery No. 24225, 2011-Ohio-4694, ¶ 15, citing Morgan v. Illinois, 504 U.S.

719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992); see also Article I, Section 10, Ohio

Constitution (establishing that, “[i]n any trial, in any court, the party accused” has the right

to a “speedy public trial by an impartial jury”). When deciding whether to exclude a

prospective juror for cause, a court must determine whether that person has “views that

would ‘prevent or substantially impair the [person’s] performance’ ” of the duties of a juror


1 Before the State filed its brief, and without requesting leave, Quinn submitted an
amendment to his initial brief on December 5, 2016, setting forth four additional
assignments of error. We decline to address these additional assignments of error
individually because they are merely redundant expressions of the second and third
assignments of error that Quinn raises in his initial brief.
                                                                                           -4-

“ ‘in accordance with [the court’s] instructions and [the juror’s] oath.’ ” Priest, 2011-Ohio-

4694, ¶ 15, quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581

(1980). Under R.C. 2313.17(B)(9) and (D), and R.C. 2945.25(B), a prospective juror

may be challenged, among other things, for an inability to “be * * * fair and impartial” or,

similarly, for suspected bias against the prosecution or the defense.

       {¶ 6} Given that the “determination of juror bias necessarily involves a[n]

[assessment of] credibility, the basis of which often will not be apparent from an appellate

record,” a court of appeals must give “ ‘deference * * * to the trial judge who sees and

hears the [challenged] juror.’ ” State v. DePew, 38 Ohio St.3d 275, 280, 528 N.E.2d 542

(1988), quoting Wainwright v. Witt, 469 U.S. 412, 426, 105 S.Ct. 844, 83 LEd.2d 841

(1985). The relevant inquiry in this situation is “ ‘whether the composition of the jury

panel as a whole could possibly have been affected by the trial court’s [putative] error.’ ”

(Emphasis omitted.) Gray v. Mississippi, 481 U.S. 648, 665, 107 S.Ct. 2045, 95 L.Ed.2d

622 (1987), quoting Moore v. Estelle, 670 F.2d 56, 58 (5th Cir.1982); see also State v.

Broom, 40 Ohio St.3d 277, 287, 533 N.E.2d 682 (1988), citing Gray, 481 U.S. at 665.

Thus, a defendant in a criminal case “ ‘cannot complain of prejudicial error in the

overruling of a challenge for cause if [the] ruling does not force him to exhaust his

peremptory challenges.’ ” (Emphasis omitted.) State v. Hale, 119 Ohio St.3d 118,

2008-Ohio-3426, 892 N.E.2d 864, ¶ 29, quoting State v. Eaton, 19 Ohio St.2d 145, 249

N.E.2d 897 (1969), paragraph one of the syllabus.

       {¶ 7} The decision “whether to disqualify a juror for cause is a discretionary

function of the trial court” and is “not reversible on appeal absent an abuse of discretion.”

State v. Choice, 2d Dist. Montgomery No. 25131, 2013-Ohio-2013, ¶ 19, citing Berk v.
                                                                                           -5-

Matthews, 53 Ohio St.3d 161, 559 N.E.2d 1301 (1990), syllabus. An abuse of discretion

is “a decision that is unreasonable, arbitrary, or unconscionable.” Id., citing Huffman v.

Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985). Because Quinn used

all of his peremptory challenges, we turn to the merits of his first assignment of error.

Trial Tr. 42, 49, 54-55 and 62, Mar. 24-25, 2014.

       {¶ 8} Quinn argues that the trial court should have excused Prospective Juror No.

58 (the “Locksmith”) as the result of bias in favor of the State.2 See Appellant’s Br. 2-5.

He cites the following as illustrative of the Locksmith’s purported bias:

              PROSECUTOR: * * *. Do you have any close friends or family in

       law enforcement?

              THE LOCKSMITH: Most of them are retired.

              PROSECUTOR: Anything from the interactions that you’ve had with

       them that would keep you from being a fair and impartial juror today?

              THE LOCKSMITH: I believe them more than I believe regular people.

              PROSECUTOR: Let’s talk about that.              That’s an interesting

       statement.   Would you agree with me that police officers have certain

       experience and expertise that the rest of us may not have?


2 In our decision granting Quinn’s application to re-open this appeal, we stated that the
“reopening is limited to the issue regarding a potential error in the jury selection process,”
referring to the trial court’s decision to overrule Quinn’s challenge for cause to a deputy
with the Clark County Sheriff’s Department. Decision & Entry 3-4, May 11, 2016. Quinn
had also raised the trial court’s decision overruling his challenge to the Locksmith in his
application to re-open, though we did not refer to this latter issue when we re-opened the
appeal. Construing our decision in light of Quinn’s application, we find that the omission
of any reference to the issue concerning the Locksmith was inadvertent, and that our
decision was intended to accept not only the issue concerning the Clark County Sheriff’s
Deputy, but the issue concerning the Locksmith, as well. The State has addressed both
of these issues in its appellee’s brief.
                                                                                       -6-


              THE LOCKSMITH: Yes.

              PROSECUTOR: They respond to scenes and handle things that we

       can’t even imagine.

              THE LOCKSMITH: Yes.

              PROSECUTOR: Does that mean that police officers[,] at least in your

       mind[,] don’t make the same mistakes that the rest of us make?

              THE LOCKSMITH: Yes.

              PROSECUTOR: Do you think that police officers are above * * *

       stretching the truth?

              THE LOCKSMITH: For the most part, yes. I worked as a special

       with them for twenty-five years, and I still do odds and ends work with them.

              PROSECUTOR: Do you think just because a police officer comes in

       here today and tells you that something happened, does that mean—or

       because a police officer has filed charges[,] do you think that means that

       the defendant is guilty?

              THE LOCKSMITH: I believe he does.

              PROSECUTOR: You believe the police officer does?

              THE LOCKSMITH: Yes. But it’s yet to be proven[,] though.

Trial Tr. 56-58.   After this exchange, Quinn’s attorney questioned the Locksmith as

follows:

              DEFENSE COUNSEL: [I]s it because you have worked so closely

       with law enforcement that you would believe an officer to be truthful?

              THE LOCKSMITH: Probably so. I worked as a special on the third
                                                                               -7-


shift a couple of times a month for twenty-five years.

        DEFENSE COUNSEL: If an officer got up on the stand and told you

something, can you imagine that you would ever not believe him? If he

looked you in the eye and told you something happened, he witnessed it or-

--

        THE LOCKSMITH: If he said he witnessed it, I would believe him.

        DEFENSE COUNSEL: What if that conflicted with another witness,

who would you believe?

        THE LOCKSMITH: I would have the tendency to believe the police

officer first.

                                    ***

        DEFENSE COUNSEL: Even though an officer has filed charges

against my client and he’s sitting here, because of that do you have any

preconceived notions about my client’s innocence?

        THE LOCKSMITH: Just because he’s filed charges and---

        DEFENSE COUNSEL: Yes.

        THE LOCKSMITH: ---I don’t have any preconceived---

        DEFENSE COUNSEL: The officer swears in a statement things that

if believed by you, would probably render a guilty verdict, does that change

your mind about whether you think my client is innocent or not innocent

sitting here?

        THE LOCKSMITH: Depending upon what the officer would say when

he’s sitting in the chair.
                                                                                        -8-


                DEFENSE COUNSEL: And if he said the same thing [on the stand]

       that’s in the [sworn statement]?

                THE LOCKSMITH: I would have a tendency to believe it.

Id. at 59-61.

       {¶ 9} Notwithstanding that the Locksmith expressed a tendency to believe law

enforcement personnel more readily than others, we conclude that his statements did not

evince an inability to remain impartial or reveal an implacable bias in favor of the State.

He also expressed his understanding that the State bore the burden of proof, attested to

his belief in the principle that a criminal defendant should be presumed innocent until

proven guilty, and disclaimed having any preconceived opinions about Quinn’s guilt or

innocence. Id. at 57-58, 60.

       {¶ 10} Quinn argues, even so, that the Locksmith “could not [have been] fair and

impartial because he stated he could not,” citing to our decision in State v. Leavell, 2d

Dist. Montgomery No. 10919, 1989 WL 33104 (Apr. 7, 1989), in support of this assertion.

Appellant’s Br. 3. Quinn’s characterization of the Locksmith’s responses consists more

of advocacy than accuracy, however, given that the Locksmith articulated his

understanding of the State’s burden of proof, as well as his belief that Quinn should be

presumed innocent until proven guilty. Our decision in Leavell, for that matter, lends no

support to Quinn’s argument. In Leavell, when a prospective juror challenged for cause

was asked whether he could give the defendant a fair trial, the juror twice answered that

he did not think he could. Leavell, 1989 WL 33104, *1-2. Here, the Locksmith made no

equivalent statement. His association with law enforcement officers, moreover, did not

of itself warrant his dismissal for cause. See e.g. State v. Dye, 8th Dist. Cuyahoga No.
                                                                                          -9-


103907, 2016-Ohio-8044, ¶ 24-29 (finding a law enforcement officer’s mother-in-law

could have been fair and impartial if allowed to serve as a juror in a criminal case); State

v. McGlothin, 1st Dist. Hamilton No. C-060145, 2007-Ohio-4707, ¶ 11-12 (similarly finding

that a retired police officer could have been a fair and impartial juror).

       {¶ 11} Deferring as we must to the trial court’s assessment of the Locksmith’s

credibility, and having undertaken an independent review of his statements during voir

dire, we find that the Locksmith qualified to serve as a fair and impartial juror. Therefore,

we hold that the trial court did not abuse its discretion by denying Quinn’s challenge for

cause. Quinn’s first assignment of error is overruled.

       {¶ 12} For his second assignment of error, Quinn contends that:

              THE JURY SELECTION PROCESS WAS FURTHER TAINTED

       WHEN A DEPUTY SHERIFF WAS INVOLVED IN THE APPELLANTS [SIC]

       CASE AND FAILED TO MAKE THE TRIAL COURT AWARE OF HIS

       INVOLVEMENT.         THE STATE ALSO FAILED TO MAKE THE TRIAL

       COURT AWARE OF HIS INVOLVEMENT.

       {¶ 13} This assignment of error relates to Prospective Juror #11, a deputy with the

Clark County Sheriff’s Department (the “Deputy”). According to Quinn, the State “knew,

or should have known[,] that [the] Deputy * * * was involved in [his] case,” but neither the

State nor the Deputy himself disclosed as much to the trial court during voir dire.

Appellant’s Br. 5-6.     Quinn posits that the alleged failure to disclose “constitutes

prosecutorial misconduct.”      Id. at 6.    He presented the same issue as the first

assignment of error in his application to re-open this appeal.

       {¶ 14} In our decision granting Quinn’s application to re-open, we noted that
                                                                                          -10-


although he was thus “attempt[ing] to raise a new issue regarding pre-trial discovery of

[certain] police reports written by the Clark County Sheriff’s Office,” which he “asserts * *

* were not provided during pre-trial discovery,” he did “not establish[] that the pertinent

documents are part of the trial court record.” Decision & Entry 3-4, May 11, 2016. As a

result, we “limited [this re-opened appeal] to the issue[s] regarding * * * potential error[s]

in the jury selection process.”      Id. at 4.   Quinn’s second assignment of error is

consequently overruled.

       {¶ 15} For his third assignment of error, Quinn contends that:

              DEPUTY [* * *], THE DEPUTY INVOLVED IN THE APPELLANTS

       [SIC] CASE, KNEW BOTH THE LEAD DETECTIVE AND BOTH

       PROSECUTORS IN THE APPELLANTS [SIC] TRIAL. DEPUTY [* * *]

       SPOKE TO OTHER OFFICERS ABOUT THE CASE, AND WAS

       DIRECTLY INVOLVED IN THE APPELLANTS [SIC] CASE.                           THE

       APPELLANT UNNECESSARILY USED A PEREMPTORY CHALLENGE

       TO REMOVE THE DEPUTY.                THIS IMPAIRED THE APPELLANT’S

       PEREMPTORY CHALLENGE RIGHTS.

       {¶ 16} During voir dire, the prosecutor asked the members of the panel to indicate

whether they knew him, the assistant prosecutor, or the detective with the Springfield

Police Department who had led the investigation into the charges against Quinn. Trial

Tr. 20, 252-253. The Deputy indicated that he knew “[e]very one” of them. Id. at 21.

After questioning several other members of the panel, the prosecutor returned to the

Deputy and had the following exchange with him:

              PROSECUTOR: * * *. You are a deputy [s]heriff and have been in
                                                                                          -11-


       that position for a number of years now?

              THE DEPUTY: Fifteen.

              PROSECUTOR: This case does not involve the Clark County

       Sheriff’s Department. Have you had any discussions with anyone who is

       involved with this case about this case [sic]?

              THE DEPUTY. I’m not sure exactly which case it is. I am familiar

       with the defendant[,] though.

              PROSECUTOR: I’m not going to ask you any more questions. * * *.

Id. at 28-29. Quinn’s counsel did not examine the Deputy, and the trial court overruled

his challenge for cause without comment. Id. at 28-38.

       {¶ 17} In support of his challenge, Quinn bore the burden of establishing cause.

The party “seeking exclusion [of a prospective juror] must demonstrate, through

questioning, that the potential juror lacks impartiality.” Wainwright v. Witt, 469 U.S. 412,

423, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); see also State v. Jackson, 107 Ohio St.3d

53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 57, citing Wainwright, 469 U.S. at 423. To this

end, questions “on voir dire must be sufficient to identify prospective jurors who hold views

that would prevent or substantially impair them from performing the duties required of

jurors.” State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 57,

citing Morgan v. Illinois, 504 U.S. 719, 734-735, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).

       {¶ 18} Quinn’s counsel chose not to ask any questions of the Deputy, and the

Deputy’s responses to the State’s inquiries raised only the possibility that the Deputy

could not be impartial. With that possibility raised, however, Quinn bore the burden to

pose questions sufficient to demonstrate that the Deputy lacked impartiality—whether on
                                                                                           -12-


the basis of involvement with the case, interaction with the prosecuting attorneys and

officers of the Springfield Police Department, or both.         Quinn argues that a “law

enforcement officer who asserts that he is ‘familiar’ with the defendant [is] essentially

stating that he had dealt with [the defendant] before in his professional capacity,” yet in

the absence of any specific information about the nature of such familiarity, other

explanations are equally as likely. Appellant’s Br. 7. For example, the officer might be

personally acquainted with the defendant or might have interviewed the defendant as a

witness in the course of an unrelated matter. Quinn’s counsel did not question the

Deputy or otherwise attempt to establish that the Deputy would be unable to remain

impartial, meaning that Quinn did not satisfy his burden to demonstrate, through

questioning, that the Deputy would be unsuitable for service on his jury. On the record

before us, then, we find that the trial court did not abuse its discretion in denying Quinn’s

challenge for cause to the Deputy. Quinn’s third assignment of error is overruled.

                                      III. Conclusion

       {¶ 19} We find that the trial court did not abuse its discretion by overruling Quinn’s

challenges for cause to the service of the Locksmith and the Deputy as jurors. The

judgment of the trial court is therefore affirmed.



                                      .............


HALL, P.J., concurring.

       {¶ 20} I fully agree with the analysis and conclusions of the majority opinion. I write

separately to express my belief that, on this record, even if two jurors harbored a

preference to believe the testimony of police officers that preference was harmless and
                                                                                           -13-


insufficient to create reversible error.

       {¶ 21} At trial, the defense in this domestic dispute between mother and son

challenged mother’s credibility. Her story that her son abducted her, threatened and

attacked her, and threatened to make her jump off a roadside bridge was corroborated

by photographs of her face, head and arm, photos from their house, and the testimony of

a lay witness in the Wal-Mart parking lot from whom she sought refuge. The defense did

not offer any witnesses with contrary evidence.

       {¶ 22} The credibility of any of the police officers was never in question. Four

officers testified. None of them were present at the time of any abduction, assault, or

intimidation, and none of their testimony introduced any elements of the various offenses.

Officer Ronnie Terry was dispatched in regard to the initial incident at the victim’s home

on a “[d]omestic dispute between mother and son.” (T. 88). He testified mother was visibly

shaken, but he observed no visible injury, a fact the defense inquired about and

highlighted. He took her statement and photographs. Officer Josh Clark also had

responded to the home. He too saw no visible injury to mother although he agreed she

was “nervous, scared, and hesitant at first.” (T. 102). He saw no damage to the house.

Again the defense did not question Clark’s credibility but rather inquired about the lack of

injury or damage and relied upon the accuracy of his testimony.

       {¶ 23} Several hours later, Officer Paul Herald was dispatched to the Wal-Mart

parking lot on a report of a woman assaulted. He said she had a “large lump above her

left eye, swelling, [and] bruising.” (T. 115). He took multiple pictures of her face, forehead,

and eyelid, which were shown and described to the jury and were introduced into

evidence. He also testified about the subsequent pictures, taken at mother’s home, which
                                                                                           -14-


demonstrated damage to her bedroom door and which also were introduced into

evidence. Through Herald, the defense introduced several additional pictures from inside

the house, suggesting the presence of drug activity. The only criticism of his investigation

was his failure to search for or to locate the bridge where son demanded she jump to see

if there was any evidence at that location. The credibility of Herald was not at issue.

       {¶ 24} The last police witness, Detective James Byron, testified about the chain of

custody of the Wal-Mart surveillance video, which he retrieved from the store. He was not

questioned by the defense.

       {¶ 25} Finally, in closing argument, the defense made no reference to any issue

about the credibility of any police officers. Indeed, most of the evidence that the defense

used to denigrate the credibility of the victim was the evidence supplied by the police

officers.

       {¶ 26} In my opinion, the record demonstrates there was never a question about

the credibility of the police officers, who were not present and did not directly testify about

the assault, kidnapping, or intimidation. They did not testify to any element of the offenses

for which the defendant was convicted. Accordingly, the contention that a juror might give

a police officer more credibility than a lay person is of no consequence here and does not

raise prejudicial error. Compare State v. Pernell, 6th Dist. Lucas No. L-11-1036, 2011-

Ohio-6918, ¶ 18 (“Even had the other prospective jurors heard the marshall’s remark and

were persuaded that law enforcement officers were more likely to be truthful, this could

not have affected the outcome of this trial. The key witnesses here were not police, but

three witnesses who testified that appellant shot Ryland Garrett. Consequently any harm

the marshall’s statement may have engendered was harmless.”); State v. Bonnell, 8th
                                                                                          -15-


Dist. Cuyahoga No. 55927, 1989 WL 117828, *11 (Oct. 5, 1989) (“Stating one’s opinion

that police officers are inherently more believable than other witnesses is quite different

from showing an enmity or bias toward the state. This is especially so where, as here,

defendant has acknowledged that it was the credibility of two non-law enforcement

witnesses that was crucial to the state’s case.”), aff’d, 61 Ohio St.3d 179, 573 N.E.2d

1082 (1991).




FROELICH, J., dissenting:

       {¶ 27} I would find that the trial court abused its discretion in failing to disqualify

two prospective jurors who were challenged for cause. Accordingly, I dissent.

       {¶ 28} “A trial court has broad discretion in determining a prospective juror’s ability

to be impartial.” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶

94. And “[a] trial court’s ruling on a challenge for cause will not be disturbed on appeal

absent an abuse of discretion.” Id. An appellate court must indeed give deference to

discretionary decisions by a trial court; otherwise appeals would, in essence, be a second

bite at the factual apple and would not establish rules to guide trial courts going forward.

       {¶ 29} But perhaps the pejorative term, “abuse,” is misleading as to our standard

of review. 3   The oft-cited definition as a decision that is unreasonable, arbitrary or

unconscionable is itself subject to different interpretations.4 Discretionary action should


3
  One court has attributed the continued use of the term to the fact that “most appellate
judges suffer from misocainea.” State v. Chapple, 135 Ariz. 281, 297, 660 P.2d 1208
(1983), fn. 18, superseded by statute on other grounds.

4
 See, e.g., Painter and Walter, Abuse of Discretion; What Should It Mean Under Ohio
Law, 29 Ohio N.L.Rev. 209 (2002).
                                                                                          -16-


not be set aside by a reviewing court unless it has “a definite and firm conviction that the

court below committed a clear error of judgment in the conclusion it reached upon a

weighing of the relevant factors.” In re Josephson, 218 F.2d 174, 182 (1st Cir.1954),

overruled on other grounds, In re Union Leader Corp., 292 F.2d 381 (1st Cir.1961).

       {¶ 30} Here, Juror #5, a locksmith, stated that he worked as a “special” with police

officers on the third shift a couple of times a month for 25 years and still did “odds and

ends work with them.” (It is not evident what agency or department this was with.) He

stated he would both have a “tendency to believe” law enforcement officers, and “would

believe” an officer who said he witnessed “something happen.” When specifically asked

if his interactions with law enforcement would keep him from being a fair and impartial

juror, Juror #5 responded, “I believe them more than I believe regular people.”

       {¶ 31} In response to Quinn’s challenge for cause regarding Juror #5, the

prosecutor responded, “I think it’s pretty clear from [the juror’s] answers that he does have

faith in law enforcement and would tend to believe law enforcement, but I think he also

said that he could be a fair and impartial juror and if there was evidence that contradicted

any police officer’s statement, he would look at the evidence and make his decision

accordingly.”   The court overruled the challenge for cause, and Quinn exercised a

peremptory challenge.

       {¶ 32} The record does not reflect that Juror #5 ever said he could be fair and

impartial. To the contrary, Juror #5 stated that if an officer’s testimony “conflicted with

another witness,” he would “have the tendency to believe the police officer first.” Juror

#5 stated that he had no “preconceived [notions about the defendant’s innocence],” but

he repeatedly indicated he “would have a tendency to believe” law enforcement officers
                                                                                           -17-


over others. In short, Juror #5’s answers reflected an unequivocal lack of impartiality in

how he would assess the credibility of witness-police officers versus other witnesses.

Further, R.C. 2313.17(D) provides that “[t]he validity of the challenge [for cause] shall * * *

be sustained if the court has any doubt as to the juror’s being entirely unbiased.” The

trial court could not have reasonably been without doubt that Juror #5’s answers reflected

that he could be a fair and impartial juror.

       {¶ 33} Juror #11 was a deputy sheriff in Clark County for 15 years and knew both

assistant prosecutors and the Springfield Police Department officers who testified.

When asked if he “had any discussions with anyone who is involved with this case about

this case,” the juror said he was “not sure exactly which case it is. I am familiar with the

defendant though.” No additional questions were asked of Juror #11. The trial court

summarily overruled a challenge for cause, and Quinn exercised a peremptory challenge.

       {¶ 34} Whether the trial court abused its discretion in failing to disqualify Juror #11

for cause is a closer question. There was no definite answer whether Juror #11 had

discussions about Quinn’s case with the officers involved, and neither the prosecutor nor

defense counsel asked follow-up questions to explore whether the deputy sheriff would

give deference to the witness-police officers, how the deputy sheriff was “familiar” with

Quinn, whether the deputy sheriff’s familiarity with the prosecutors would affect his ability

to sit as a fair and impartial juror, and whether the deputy sheriff believed he could be fair

and impartial.

       {¶ 35} Nevertheless, Juror #11’s responses reflected that he was a member of law

enforcement, knew the prosecutors and the State’s representative (Detective Byron), and

was “familiar with the defendant.” His statement that he was “familiar with the defendant”
                                                                                          -18-


in response to the inquiry about police and this case implied that his familiarity arose from

Quinn’s involvement with the criminal justice system. Given Juror #11’s employment and

his familiarity with both the prosecutors and Quinn in the criminal justice context, I would

conclude that the trial court should have granted Quinn’s challenge for cause as to Juror

#11, as well.

       {¶ 36} The lack of impartiality evinced by the prospective jurors is not a criticism of

them individually; we all have implicit and explicit biases and these jurors directly and

honestly answered the questions put to them. Such attitudes do not dissolve in a general

acquiescence to a conclusory question about whether a juror understands the

presumption of innocence or can be fair and impartial. I would find the decision not to

grant the challenges for cause to be not guided by reason (unreasonable), without

adequate defining principles (arbitrary), as well as unconscionable (affronting the sense

of justice or reasonableness).     Accordingly, I would reverse Quinn’s conviction and

remand for a new trial.

                                      .............


Copies mailed to:

Megan M. Farley
James Quinn
Hon. Douglas M. Rastatter
