[Cite as State v. Owens, 2012-Ohio-3667.]


STATE OF OHIO                    )                      IN THE COURT OF APPEALS
                                 )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                           C.A. No.    25872

        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
DEVON D. OWENS                                          COURT OF COMMON PLEAS
                                                        COUNTY OF SUMMIT, OHIO
        Appellant                                       CASE No.   CR 10 06 1740

                                 DECISION AND JOURNAL ENTRY

Dated: August 15, 2012



        MOORE, Presiding Judge.

        {¶1}    Appellant, Devon Owens, appeals his conviction by the Summit County Court of

Common Pleas. This Court affirms in part and reverses in part.

                                                    I

        {¶2}    Seventy-three-year-old C.W. died as a result of manual strangulation in

connection with a sexual assault.           Her granddaughter and her granddaughter’s boyfriend

discovered her body and found the perpetrator sitting on C.W.’s bed in a state of partial undress.

The perpetrator fled through a bedroom window and disappeared. A citizen’s tip in response to a

composite sketch led police to Mr. Owens, who was arrested when a DNA sample that he

provided was consistent with samples obtained from the crime scene.

        {¶3}    Mr. Owens was charged with aggravated murder in violation of R.C. 2903.01(B),

with a death penalty specification, two counts of rape in violation of R.C. 2907.02(A)(2), and

one count of aggravated burglary in violation of R.C. 2911.11(A)(1). A jury found him guilty of
                                                 2


all of the charges. When the jury informed the trial court that it had concluded its deliberations

and reached a verdict, one juror told the bailiff that she had received several calls from an inmate

at the Summit County Jail. The bailiff noted her phone number, but did not inform the trial court

until after the verdict had been announced in court. Without communicating with the attorneys,

the trial court asked a deputy sheriff to investigate the matter.        From the results of the

investigation, the trial court concluded that the calls had no connection to the trial. The court

informed the attorneys of the incident shortly before the beginning of the penalty phase. At that

point, with input from counsel, the trial court individually questioned the jurors about their

deliberations in light of the phone calls. The trial court concluded that the jury’s deliberations

were not affected and denied Mr. Owens’ motion for a new trial.

       {¶4}    The case proceeded to the penalty phase, and the jury found that the aggravating

factors supporting imposition of the death penalty did not outweigh the factors that mitigated

against it. The trial court sentenced Mr. Owens to life in prison without the possibility of parole

with respect to the aggravated murder conviction and to ten-year prison terms for each of the

three other convictions. Mr. Owens appealed.

                                                 II

                                 ASSIGNMENT OF ERROR I

       APPELLANT’S CONSTITUTIONAL RIGHTS AS GUARANTEED BY
       THE FIFTH AND SIXTH AMENDMENTS OF THE UNITED STATES
       CONSTITUTION AND ARTICLE I, §10 OF THE OHIO CONSTITUTION
       WERE DENIED BY THE TRIAL COURT’S EX PARTE
       INVESTIGATION INTO IMPROPER JUROR COMMUNICATION.

       {¶5}    Mr. Owens’ first assignment of error argues that the trial court erred by

conducting an investigation into the phone calls received by Juror Number 4 without involving

counsel until the investigation was concluded. Specifically, he has argued that the trial court’s
                                                  3


investigation violated his constitutional rights to an impartial jury, to representation by counsel at

a critical stage of the proceeding, and to due process, exemplified by a hearing on the question of

jury interference at the time it was brought to the court’s attention.

       {¶6}    Because Mr. Owens’ arguments arise from an issue of potential interference with

a juror, that is the starting point for our analysis. When it is alleged that outside contact with a

juror has been made regarding the subject matter of the proceedings, a trial court must conduct

“a hearing with all interested parties permitted to participate” to “determine the circumstances,

the impact thereof upon the juror, and whether or not it was prejudicial[.]” Remmer v. U.S., 347

U.S. 227, 229-230 (1954). The hearing required in this situation affords the defendant the

opportunity to demonstrate “actual bias.” Smith v. Phillips, 455 U.S. 209, 215. See also

Sheppard v. Bagley, 657 F.3d 338, 344 (6th Cir.2011).

       {¶7}    Although Mr. Owens presents this assignment of error as a novel issue, the facts

of Remmer are similar and the remedy in that case is instructive. In Remmer, a third party

approached a juror and suggested a bribe. Remmer at 228. The juror informed the judge while

the trial was in progress. After consulting with the prosecuting attorney, but not with the

defense, the judge requested an FBI investigation into the third party’s contact with the juror. Id.

The trial continued to conclusion while the juror was aware that the incident was under

investigation, but the defendant did not learn of the alleged communication with the juror until

after the jury returned a guilty verdict. Id. Even then, the defendant and his attorneys learned

about the incident via the newspaper. Id.

       {¶8}    The Supreme Court identified two areas of concern with respect to that sequence

of events: first, the potential that the third party’s communication had influenced the juror at

issue, and second, that the specter of an FBI investigation looming over the juror during the trial
                                                 4


and during deliberations may itself have unduly influenced him. See id. at 229.           The Court

emphasized that when allegations of interference with a juror are raised, the “final action”

regarding the allegations must not be made ex parte, but after a hearing during which “all

interested parties” may participate. Id. at 229-230. Although the jury in Remmer had already

returned a verdict of guilty, the Supreme Court did not vacate the verdict and order a new trial as

a matter of course. Instead, the Court remanded the case to the trial court so that the hearing

described in its opinion could be held post-verdict and, “if after hearing [the conduct] is found to

have been harmful, to grant a new trial.” Id. at 230.

       {¶9}    Thus, even though the trial court’s ex parte investigation into the alleged

interference in Remmer was determined to be improper, the Supreme Court held that the error

should be remedied by a hearing that satisfied the demands of due process. Id. Consistent with

this result, later cases held that allegations of jury interference do not entitle the defendant to a

new trial in every instance:

        [D]ue process does not require a new trial every time a juror has been placed in a
       potentially compromising situation. Were that the rule, few trials would be
       constitutionally acceptable. The safeguards of juror impartiality, such as voir dire
       and protective instructions from the trial judge, are not infallible; it is virtually
       impossible to shield jurors from every contact or influence that might
       theoretically affect their vote. Due process means a jury capable and willing to
       decide the case solely on the evidence before it, and a trial judge ever watchful to
       prevent prejudicial occurrences and to determine the effect of such occurrences
       when they happen.

Phillips, 455 U.S. at 217. Instead, “[p]ost-trial hearings are adequately tailored to this task.”

Rushen v. Spain, 464 U.S. 114, 120 (1983).

       {¶10} As in Remmer, the trial court erred in this case by conducting an investigation into

an allegation of jury interference without notifying the parties and their attorneys. But a new

trial is not the appropriate remedy. In Remmer, the Supreme Court remanded the matter for a
                                                 5


hearing involving all parties during which the allegations of jury interference could be explored

and the impartiality of the jurors examined. Here, although the trial court should have informed

the parties when the allegation was made, it ultimately conducted a thorough hearing into the

matter with the participation of both parties and concluded that the jury’s decision was worthy of

confidence. In that respect, we agree with the trial court’s determination.

       {¶11} The trial court conducted a hearing during which Juror Number 4, and then each

other individual juror, was questioned about their discussion of the calls that Juror Number 4

received and any impact those discussions had on the deliberations. Juror Number 4 testified

that she started receiving calls from the Summit County jail shortly after the trial began and

received a total of around five calls. When the calls came, she did not perceive any threat and

did not think that the calls may have been connected to the case. She recalled that after watching

the video of Mr. Owens’ police interview, she mentioned the phone calls in the jury room

because she thought the name “Juan” may have been used. Nonetheless, Juror Number 4

testified that after another juror suggested she tell the bailiff, the conversation ended and the

matter was not discussed again. She recalled that the jurors only spent one or two minutes on the

matter. Juror Number 4 testified that she performed her duties in compliance with the trial

court’s instructions, that the phone calls did not interfere with her deliberations, and that she

believed she could continue to serve as a juror in the penalty phase. With input from counsel, the

trial court then conducted individual voir dire of each juror. All of the jurors indicated that the

discussion about the phone calls received by Juror Number 4 did not affect their deliberations.

       {¶12} We emphasize that the trial court in this case should not have conducted an

investigation of the phone calls to Juror Number 4 without informing counsel. Nonetheless, we
                                                  6


agree with the trial court’s conclusion after the Remmer hearing that Mr. Owens is not entitled to

a new trial. His first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
       COUNSEL WHEN NO OBJECTION WAS MADE TO INADMISSIBLE
       HEARSAY.

                                 ASSIGNMENT OF ERROR III

       APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
       COUNSEL WHEN DR. KOHLER WAS PERMITTED TO TESTIFY
       BEYOND THE SCOPE OF HER EXPERTISE WITHOUT OBJECTION.

       {¶13} Mr. Owens’ second and third assignments of error argue that he received

ineffective assistance of counsel because his attorneys did not object to portions of the testimony

provided by the Summit County Coroner. We disagree.

       {¶14} In order to demonstrate ineffective assistance of counsel, a defendant most show

(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by

counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington,

466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for

counsel’s errors, there is a reasonable possibility that the outcome of the trial would have been

different. Id. at 694. In applying this test, “a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance[.]” Id. at

689.

       {¶15} Trial strategy “must be accorded deference and cannot be examined through the

distorting effect of hindsight.” State v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, ¶ 115.
                                                 7


The decision not to raise objections at trial, for example, may be a strategic choice. Id. at ¶ 103.

With respect to objections:

       “[E]xperienced trial counsel learn that objections to each potentially objectionable
       event could actually act to their party’s detriment. * * * In light of this, any single
       failure to object usually cannot be said to have been error unless the evidence
       sought is so prejudicial * * * that failure to object essentially defaults the case to
       the state. Otherwise, defense counsel must so consistently fail to use objections,
       despite numerous and clear reasons for doing so, that counsel’s failure cannot
       reasonably have been said to have been part of a trial strategy or tactical choice.”

(Alterations in original.) State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 140, quoting

Lundgren v. Mitchell, 440 F.3d 754, 774 (6th Cir.2006).

       {¶16} The parts of the Coroner’s testimony with which Mr. Owens now takes issue

involve her statements regarding the cause of C.W.’s death and the mechanism through which

the death occurred. The Coroner summarized, in general terms, research related to the amount of

pressure necessary to cause death by manual strangulation through pressure on the carotid and

venus arteries and to the jugular vein. The Coroner also testified that a male of normal size

could exert sufficient pressure to cause death in that way. Although Mr. Owens’ attorneys did

not object to any of the Coroner’s testimony, they cross-examined her extensively on these

issues, drawing particular attention to her conclusion that because of C.W.’s frail health, less

pressure would have needed to be exerted to cause her death.

       {¶17} Although trial counsel’s strategy did not result in an acquittal, the record in this

case supports the conclusion that Mr. Owens’ trial attorneys chose not to object to portions of the

Coroner’s testimony as part of their trial strategy. Trial counsel was not ineffective, and Mr.

Owens’ second and third assignments of error are overruled.
                                                 8


                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED IN FAILING TO DETERMINE THE
       OFFENSES COMMITTED BY APPELLANT WERE ALLIED OFFENSES
       OF SIMILAR IMPORT AND A RESULT OF A SINGLE ACT.

       {¶18} In his final assignment of error, Mr. Owens has argued that the trial court erred by

failing to consider whether his convictions merged for purposes of sentencing as allied offenses

of similar import. We agree.

       {¶19} In State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, the Ohio Supreme

Court held that “[w]hen determining whether two offenses are allied offenses of similar import

subject to merger under R.C. 2941.25, the conduct of the accused must be considered.” Id. at

syllabus. Since then, this Court has consistently remanded cases for further proceedings in the

trial court to apply Johnson for the first time. See e.g. State v. Slevin, 9th Dist. No. 25956, 2012-

Ohio-2043, ¶ 5 (remanding for consideration of allied offenses when Johnson was decided

before sentencing, but was not addressed in the trial court.) In light of our precedent, it is

therefore appropriate to remand this case so that the trial court can apply Johnson in the first

instance. Mr. Owens’ fourth assignment of error is sustained.

                                                 III

       {¶20} Mr. Owens’ first, second, and third assignments of error are overruled. His fourth

assignment of error is sustained. This matter is remanded to the trial court for consideration of

the impact of State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314.

                                                                         Judgment affirmed in part,
                                                                                  reversed in part,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.
                                                 9


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     CARLA MOORE
                                                     FOR THE COURT



DICKINSON, J.
BELFANCE, J.
CONCUR.


APPEARANCES:

KIRK A. MIGDAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
