[Cite as State v. Zaragoza, 2016-Ohio-144.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 26706 : v. : Trial Court Case No. 2014-CR-493 : SAUL A. ZARAGOZA : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
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OPINION
Rendered on the 15th day of January, 2016.
MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
JON PAUL RION, Atty. Reg. No. 0067020, NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, 130 West Second Street, Suite 2150, P.O. Box 10126, Dayton, Ohio 45402 Attorneys for Defendant-Appellant
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WELBAUM, J. -2-
{¶ 1} Defendant-appellant, Saul A. Zaragoza, appeals from the decision of the
Montgomery County Court of Common Pleas overruling his motion to dismiss the charges
levied against him. Specifically, Zaragoza contends that after two mistrials, a third trial
would violate his constitutional right against double jeopardy. He also claims that the
trial court abused its discretion in replacing a juror during his second trial, and that it
improperly interviewed the dismissed juror outside the presence of counsel. Zaragoza
further claims that the trial court and its bailiff had improper ex parte communications with
other jurors. For the reasons outlined below, the judgment of the trial court will be
affirmed.
Facts and Course of Proceedings
{¶ 2} On February 14, 2014, the Montgomery County Grand Jury returned a
two-count indictment against Zaragoza charging him with possession of marijuana in an
amount equal to or exceeding 40,000 grams and trafficking in marijuana in amount equal
to or exceeding 40,000 grams. Zaragoza pled not guilty to the charges and on
December 15, 2014, the matter proceeded to a jury trial. Zaragoza participated at trial
through a Spanish-speaking interpreter. On the third day of trial, a mistrial was declared
after it was discovered that the translation of the proceedings was deficient, as the
interpreter was only summarizing the proceedings and not fully interpreting the testimony.
{¶ 3} Following the mistrial, Zaragoza’s case went to trial again on March 2, 2015,
and the jury began deliberating on Friday, March 6, 2015. Before excusing the jury to
deliberate, the trial court instructed the alternate jurors that they were free to leave, but -3- that they were not allowed to discuss the case with anyone until the jury entered its
verdict. Thereafter, deliberations were postponed early on Friday and scheduled to
continue the following Monday because Juror No. 3 had become agitated, claiming he
had to leave immediately for an appointment.
{¶ 4} On the following Monday morning, the trial court had a recorded meeting in
chambers with counsel for both parties, the jury foreperson, and the bailiff. At the
meeting, the trial court advised counsel that the bailiff had informed the court that after the
jury was dismissed on Friday, the bailiff observed four jurors crying, including the
foreperson, who reported that Juror No. 3 had been verbally abusive toward the other
jurors. The trial court also advised counsel that after receiving that information, it had
telephoned the foreperson to further inquire about the situation with Juror No. 3. The trial
court further noted that it had discussed the matter with the foreperson earlier that
morning, and that the bailiff had telephoned the first alternate juror to determine whether
she had abided by the court’s admonitions and, if so, to have her return to court in the
event a replacement juror would be needed.
{¶ 5} After apprising counsel of the foregoing information, the trial court had the
foreperson and bailiff explain the situation with Juror No. 3 on the record. The
foreperson advised that Juror No. 3 was angry during Friday’s deliberations because he
felt he could not voice his opinion. Specifically, the foreperson stated that Juror No. 3
turned to her and said “he had heard enough of you young people and it was his turn to
speak.” Trial Trans. Vol. III (Mar. 9, 2015), p. 650. According to the foreperson, even
after Juror No. 3 expressed his opinions, he grew angrier throughout the day. The
foreperson further indicated that Juror No. 3 did not express his opinions like the other -4- jurors, but rather, pointed at everyone, called them all idiots, and had a “boiling” temper.
Id. at 651. Nevertheless, the foreperson assured the trial court that Juror No. 3’s
behavior did not stem from the deliberations, but rather it was his attitude towards the
other jurors.
{¶ 6} Continuing, the foreperson indicated that the other jurors were nervous due
to Juror No. 3’s behavior, and noted that Juror No. 3 had attempted to leave the jury room
during deliberations. In addition, the foreperson indicated that she and the other jurors
felt like Juror No. 3’s behavior could escalate into something worse and that she was
afraid Juror No. 3 could become physical. While the foreperson claimed that she would
be able to continue deliberating with Juror No. 3, she did not know if the other jurors would
be able to because they were so uncomfortable with him.
{¶ 7} After the foreperson left chambers, the trial court noted on the record that the
foreperson had been more forthright about Juror No. 3’s attitudes when she spoke to the
court earlier, and that the foreperson had minimized the situation that was originally
relayed to the court. The trial court further noted that Juror No. 3 was, at the moment,
being very loud outside chambers. The trial court was later advised by a clerk that Juror
No. 3 was upset because he wanted to know what was going on inside chambers.
{¶ 8} Next, the trial court had the bailiff discuss her observations on the record.
The bailiff said that one of the younger female jurors reported that she had “never, ever
been talked to the way I’ve been talked to by [Juror No. 3].” Trial Trans. Vol. III (Mar. 9,
2015), p. 657. The bailiff also overheard another female juror tell Juror No. 3 that she did
“not appreciate being called an idiot.” Id. Continuing, the bailiff claimed that another
one of the younger female jurors reported that she was so upset by Juror No. 3 that she -5- cried all the way home, did not eat, and did not want to come back for deliberations
because she was nervous and a little scared of him. The bailiff also indicated that yet
another juror reported that Juror No. 3 seemed to have issues with women and that he did
not want to listen to anything that the female jurors had to say.
{¶ 9} Following the bailiff’s statements, the trial court advised that before
determining whether to remove Juror No. 3 from the jury, the court wanted to interview
Juror No. 3 on the record without counsel present. The trial court explained that it did not
want counsel present during the interview because it did not want counsel to know where
the jury was in its deliberations, as the court was concerned that it might not be able to
contain Juror No. 3’s comments. Zaragoza’s trial counsel objected to the court
interviewing Juror No. 3 without counsel and to Juror No. 3’s potential removal from the
jury. The trial court, however, proceeded with the private interview of Juror No. 3 over
Zaragoza’s objection.
{¶ 10} During the interview, the trial court asked Juror No. 3 about the complaints
regarding his behavior and the following discussion ensued:
Court: When people left Friday, I had some complaints about your
behavior, so I wanted to talk to you about that. It’s my
understanding that you were pointing fingers at people,
calling them stupid, saying you weren’t going to listen to them,
getting up at the end and just insisting you had to leave.
What was going on Friday with you? Was there anything?
Juror No. 3: Yeah, yeah. I remember. No. It was just a matter of them,
what everyone call them, misses, girls, whatever. They don’t -6- have any respect for me at all, so any time you verbally put in
your opinion on anything, it’s suddenly a staccato of rebellion
or rebuke. And I just got to the point where I was tired of
getting yelled at and, you know, treated like a red-headed
stepchild. You know what I’m saying?
Court: Was it just the women or the misses as you call them?
Juror No. 3: Right. The fellows—I get along fine with the fellows. I
developed a really nice relationship with Matt before he left to
help. He was a nice fellow and he was a nice guy to talk with
and stuff. But those women in there—all they want to talk
about is their husbands, or their family, or this, or that, and the
other and they keep up this staccato all day long. Now, you
know, we haven’t gotten into the format yet. We’re actually
trying to come up with a verdict here yet. Okay? Still, all
this stupid small talk, but on Friday, I guess that I just came to
a hill maybe. Maybe I should have been on one of my
medicines or something like that so that I would have just
more or less ignored the situation and verbally not said
anything, just be passive. But I didn’t feel that way. I felt
ill-tempered and I felt like they’re just screwing with you.
They really—you get the feeling like they really don’t want you
on that jury because you’re different from them. Okay? And
so they—ad (sic) you’re older. I’m a senior citizen. I’m 66 -7- years old. I just feel that there was this animosity towards me
no matter what I said on the case to either defend the
Defendant or listen to what they had to say about giving him a
guilty verdict.
Court: Okay. I don’t want to hear about the specifics of where your
deliberations are. Okay? Just what do you mean that
maybe you should have taken your medication? Are you on
medication?
Juror No. 3: Uh-huh.
Court: What kind of medication are you on?
Juror No. 3: Lithium carbonate.
Court: Okay. And you have –
Juror No. 3: I’m a veteran.
***
Court: And you haven’t—you’re not taking it right now?
Juror No. 3: No. I took my dosage this morning. And I’ve got to take
more dosage later on in the day, later in the p.m.
Court: What’s the lithium for?
Juror No. 3: More or less to keep your temper uneven and not fall into
depression.
Court: Okay. Okay.
Juror No. 3: I have a problem with that— -8- Court: Okay.
Juror No. 3: —at times falling into depression.
Court: Yeah. You mentioned, like you talked about, the women or
the misses.
Juror No. 3: I didn’t say much at all really. I just was defending myself.
Court: And why did you feel you had to defend yourself?
Juror No. 3: Well, when all that was coming at me from all them, every girl
or woman, whatever, in there, you know—I wasn’t seeking
friendships. I didn’t talk to anyone except for the fellows.
But for the most part, I’m a fellow that keeps his mouth shut
and just listens in this situation because I know it’s a hot spot
for me. And [I] just feel like they’re trying to get me in touch
with the court and everything else, get me in trouble, you
know. So you know, as far as my life out here, I’ve got a
sweetheart. I don’t need to come in here and look for a
sweetheart. So I don’t know if they started feeling offended
like that, because I started talking and bringing up points
there, or if it’s just the simple fact they don’t like you, they don’t
like the way you look, they don’t like you because you’re an
older fellow. I haven’t told them anything about myself at all.
But they don’t ask. They just simply ignore you, just like
before [the bailiff] came down and got me, you know. I just
lay back, and get some rest, and close my eyes until we have -9- to really do something. And then, you know, I’ll try to
participate, but—
Court: Do you feel like the women are all against you?
Juror No. 3: Yes, absolutely.
Court: Okay.
Juror No. 3: They certainly aren’t attracted to me, either, so they’ve got
personalities to match.
Court: Okay. So—
Juror No. 3: I mean, they’re bloodthirsty, too. I don’t care for that in
women, you know.
Trans. Vol. III (Mar. 9, 2015) p. 662-666.
{¶ 11} Following this discussion, the trial court dismissed Juror No. 3, concluding
that he was unstable, disruptive of deliberations, and a safety threat to the female jurors.
See Decision, Order and Entry Overruling Defendant’s Motion to Dismiss (May 21, 2015),
p. 3. However, before replacing Juror No. 3, the court interviewed the first alternate juror
on the record with counsel present. The trial court asked the alternate juror whether she
had discussed the case with anyone, to which the alternate juror replied: “No.” Id. at 676.
The court also asked if the alternate juror could be a juror based upon the evidence heard
at trial and nothing else, to which the alternate juror responded: “Yes.” Id. Thereafter,
the trial court advised that the first alternate juror would replace Juror No. 3 and noted
Zaragoza’s continuing objection.
{¶ 12} After informing the jury that Juror No. 3 had been replaced by the alternate
juror, the trial court instructed the jury that they must restart their deliberations from the -10- beginning. The court also advised that the jury instructions were the same as before, but
the juror’s notes from the previous deliberations would not be returned and that they
would receive new copies of the jury instructions so that they could start anew. The jury
then recommenced its deliberations.
{¶ 13} Later that day, the trial court received a note from the jury indicating that it
could not reach a unanimous verdict. Upon receiving the note, the trial court asked the
jury if, given more time, there was a possibility an agreement could be reached.
However, after discussing whether it was possible for them to ever reach a verdict, the
jury concluded that it could not. As a result of the jury deadlock, the trial court declared
another mistrial.
{¶ 14} Following the second mistrial, Zaragoza filed a motion to dismiss the
charges against him based on the Double Jeopardy Clause of the United States
Constitution. In his motion, Zaragoza alleged that the trial court improperly dismissed
Juror No. 3, erred in interviewing Juror No. 3 without counsel being present, and had
improper ex parte communications with certain jurors. According to Zaragoza, the
“unique hung jury situation” in this case resulted in jeopardy attaching and prevented him
from being retried a third time. On May 21, 2015, the trial court issued a written decision
overruling the motion to dismiss.
{¶ 15} Zaragoza now appeals from the trial court’s decision overruling his motion
to dismiss, raising three assignments of error for review.
First Assignment of Error
{¶ 16} Zaragoza’s First Assignment of Error is as follows: -11- THE TRIAL COURT IMPROPERLY DISMISSED THE JUROR ABSENT
EVIDENCE THAT HE WAS UNABLE TO PERFORM HIS DUTIES AS A
JUROR.
{¶ 17} Under his First Assignment of Error, Zaragoza contends that the trial court
abused its discretion when it dismissed Juror No. 3 from the jury. Specifically, Zaragoza
contends that the trial court was only permitted to remove Juror No. 3 if the court found
that Juror No. 3 was unable to perform his duties, which Zaragoza claims was not
reflected in the record. Rather, Zaragoza claims that the record establishes that
deliberations could have continued with Juror No. 3 on the jury panel, and that the trial
court’s decision to replace Juror No. 3 prejudiced him. We disagree.
{¶ 18} “Crim.R. 24(G) and R.C. 2945.29 address removal of jurors during criminal
trials.” State v. Cunningham, 2d Dist. Clark No. 10-CA-57, 2012-Ohio-2794, ¶ 45. R.C.
2945.29 permits a court to replace a juror with an alternate “[i]f, before the conclusion of
the trial, a juror becomes sick, or for other reason is unable to perform his duty[.]”
Crim.R. 24(G)(1) similarly provides that alternate jurors “shall replace jurors who, prior to
the time the jury retires to consider its verdict, become or are found to be unable or
disqualified to perform their duties.” Moreover, “[a]s of 2008, Crim.R. 24(G)(1) allows the
court to replace a juror after deliberations have begun.” State v. Hunt, 10th Dist. Franklin
No. 12AP-103, 2013-Ohio-5326, ¶ 71. “However, ‘[i]f an alternate replaces a juror after
deliberations have begun, the court must instruct the jury to begin its deliberations
anew.’ ” Id., quoting Crim.R. 24(G)(1).
{¶ 19} “A trial judge is empowered to exercise ‘sound discretion to remove a juror
and replace him with an alternate juror whenever facts are presented which convince the -12- trial judge that the juror’s ability to perform his duty is impaired.’ ” State v. Brown, 2d Dist.
Montgomery No. 24541, 2012-Ohio-1848, ¶ 46, quoting State v. Hopkins, 27 Ohio App.3d
196, 198, 500 N.E.2d 323 (11th Dist.1985). (Other citations omitted.) “Absent a record
showing that the court abused that discretion which resulted in prejudice to the defense,
the regularity of the proceedings is presumed.” Id., citing Beach v. Sweeney, 167 Ohio
St. 477, 150 N.E.2d 42 (1958). (Other citation omitted.)
{¶ 20} “A trial court abuses its discretion when it makes a decision that is
unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135
Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. “It is to be expected that most
instances of abuse of discretion will result in decisions that are simply unreasonable,
rather than decisions that are unconscionable or arbitrary.” AAAA Ents., Inc. v. River
Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597
(1990). “A decision is unreasonable if there is no sound reasoning process that would
support that decision.” Id.
{¶ 21} In State v. Segines, 8th Dist. Cuyahoga No. 89915, 2008-Ohio-2041, the
Eighth Appellate District held that a trial court did not abuse its discretion in replacing a
juror with an alternate where the original juror was observed laughing inappropriately,
exhibiting odd behaviors, and was not forthcoming as to her true address. Id. at ¶ 66.
Other jurisdictions have found the removal of a juror permissible when the juror threatens
or intimidates other jurors and disrupts deliberations. Shotikare v. United States, 779
A.2d 335, 340 (D.C.2001). For instance, in State v. Arnold, 280 Ga. 487, 629 S.E.2d 807
(2006), it was held that a trial court did not abuse its discretion in removing a juror who
cursed at other jurors and actively humiliated them through the use of vindictive personal -13- attacks such as calling them “stupid” and “monkeys”. Id. at 490. Nevertheless, a juror
cannot be removed if there is “ ‘any possibility’ that fellow jurors’ complaints about him or
her are rooted in his or her view of the merits of the case.” State v. Robb, 88 Ohio St.3d
59, 81, 723 N.E.2d 1019 (2000), quoting United States v. Thomas, 116 F.3d 606, 621 (2d
Cir.1997).
{¶ 22} In this case, after interviewing the jury foreperson, the bailiff, and Juror No.
3, the trial court noted that it believed the female jurors were afraid of Juror No. 3 and that
Juror No. 3 had admitted to having a problem with the female members of the jury. The
court advised that Juror No. 3 believed the female jurors did not respect or listen to him.
The court also noted that Juror No. 3 admitted to being off his medication and “out of
sorts” while interacting with the jurors during Friday’s deliberations. The court further
explained that “[t]here’s just something wrong with him” and that he had a “continued
antipathy towards women just because they’re women—and there are nine of them on
this jury[.]” Trial Trans. Vol. III (Mar. 9, 2015), p. 668. The trial court also stated:
I believe my duty is to have a jury that can deliberate. There was
something really off about him. And that in—which we probably would
know—I’m sure there are plenty of juries with people who have something
off about them, but in this case, you know, he had four of the jurors crying on
their way out on Friday because of his actions towards them. He did sort of
admit he was a little more combative on Friday * * *.
Id. In its written decision overruling Zaragoza’s motion to dismiss, the trial court
concluded that Juror No. 3 was unstable, disruptive to the deliberations, and a safety
threat to the female jurors. -14- {¶ 23} Upon reviewing the record, we do not find that the trial court abused its
discretion in dismissing Juror No. 3 from the jury. In reaching this decision, we note that
the trial court had the opportunity to observe Juror No. 3 first-hand and was, therefore, in
the best position to judge his demeanor. See State v. Brown, 100 Ohio St.3d 51,
2003-Ohio-5059, 796 N.E.2d 506, ¶ 42. The trial court’s belief that Juror No. 3 was
unstable, disruptive to deliberations, and a safety threat to the female jurors was
reasonable in light of the comments made by Juror No. 3, the jury foreperson, and the
bailiff. The record establishes that Juror No. 3 disrupted deliberations by attempting to
leave the jury room. In addition, it is clear from the record that Juror No. 3 has a negative
attitude toward women in general and a strong dislike for the female members of the jury.
Juror No. 3’s behavior toward the female jurors even caused some of them to cry and fear
for their safety. As the trial court aptly noted, a fair trial cannot “be had when the jurors in
there are people afraid that someone’s going to go off on them.” Trial Trans. Vol. III
(Mar. 9, 2015), p. 658.
{¶ 24} We also note that the record establishes that the complaints about Juror
No. 3’s behavior had nothing to do with his view of the case. Rather, the complaints
resulted from Juror No. 3’s attitude toward the female jurors and the discomfort and fear
that he caused them. Juror No. 3 himself admitted that he was “ill-tempered” as a result
of the female jurors’ “stupid small talk” about their husbands and families, and due to their
perceived attitudes towards him, i.e., disrespecting him, ignoring him, and finding him
unattractive. Accordingly, it is abundantly clear from the record that Juror No. 3 was not
replaced simply because he did not agree with the other jurors’ views of the case.
{¶ 25} In addition, we find the record devoid of any evidence indicating that -15- Zaragoza was prejudiced by the alternate juror replacing Juror No. 3. Zaragoza
contends that he was prejudiced because the composition of the jury changed.
However, we fail to see how one can be prejudiced by the insertion of an alternate juror
who was chosen by the parties at the inception of the case during voir dire. Zaragoza
knew that if one of the twelve jurors had to be excused that the alternate would step in and
become a part of the jury. Moreover, the alternate juror that replaced Juror No. 3 was
present during the entire trial and confirmed that she had abided by the trial court’s
admonition to not discuss the proceedings with anyone until the jury reached a verdict.
The alternate juror also indicated that she did not perform any outside research on the
case and that she could perform her duties as a juror based solely upon the evidence
presented at trial. Furthermore, after the trial court announced that the alternate juror
would be replacing Juror No. 3, it properly instructed the jury to begin its deliberations
anew as required by Crim.R. 24(G)(1).
{¶ 26} Zaragoza has also not demonstrated that the outcome of his trial would
have been different had Juror No. 3 not been replaced. During his interview with the
court, Juror No. 3 briefly stated that he was actually defending Zaragoza during
deliberations; however, we do not find that this is sufficient to establish prejudice, as it is
too speculative to conclude that Juror No. 3’s continued presence on the jury panel would
have resulted in the jury entering a verdict in Zaragoza’s favor as opposed to becoming
deadlocked.
{¶ 27} Zaragoza’s First Assignment of Error is overruled.
Second Assignment of Error -16- {¶ 28} Zaragoza’s Second Assignment of Error is as follows:
THE TRIAL COURT IMPROPERLY INTERVIEWED THE JUROR
WITHOUT THE DEFENDANT OR COUNSEL PRESENT, DEPRIVING MR.
ALVAREZ ZAR[A]GOZA OF THE RIGHT TO BE PRESENT DURING ALL
PROCEEDINGS.
{¶ 29} Under his Second Assignment of Error, Zaragoza contends that the trial
court erred in interviewing Juror No. 3 without counsel present. Zaragoza also claims
that the trial court had improper ex parte communications with the jury foreperson, and
that the bailiff’s ex parte conversations with the jurors, including the alternate juror, were
improper as well. We find no merit to Zaragoza’s claims.
{¶ 30} All of the claims raised under Zaragoza’s Second Assignment of Error are
based on the Fourteenth Amendment due process right of a criminal defendant to be
present at every critical stage of his trial. State v. Campbell, 90 Ohio St.3d 320, 346, 738
N.E.2d 1178 (2000), citing Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed.
674 (1934). In implementing this right, Crim.R. 43(A) provides, in pertinent part: “[T]he
defendant must be physically present at every stage of the criminal proceeding and trial,
including the impaneling of the jury, the return of the verdict, and the imposition of
sentence, except as otherwise provided by these rules.” Therefore, “the defendant has
the right to be present when the court communicates with the jury.” State v. Mitchell, 7th
Dist. Columbiana No. 05 CO 63, 2008-Ohio-1525, ¶ 63, citing State v. Abrams, 39 Ohio
St.2d 53, 55-56, 313 N.E.2d 823 (1974).
{¶ 31} “As a general rule, any communication with the jury outside the presence of
the defendant or parties to a case by either the judge or court personnel is error which -17- may warrant the ordering of a new trial.” (Citations omitted.) State v. Schiebel, 55 Ohio
St.3d 71, 84, 564 N.E.2d 54 (1990). “ ‘Such communications are required to be made in
the presence of the defendant or parties so that they may have an opportunity to be heard
or to object before the judge’s reply is made to the jury.’ ” State v. Rucker, 2d Dist.
Montgomery No. 24340, 2012-Ohio-4860, ¶ 42, quoting Bostic v. Conner, 37 Ohio St.3d
144, 149, 524 N.E.2d 881 (1988).
{¶ 32} “The Supreme Court has made clear * * * that erroneous communications
between the judge and jury constitute good cause for a new trial only if the
communications prejudiced the defendant’s right to a fair trial.” (Citations omitted.)
State v. Manns, 169 Ohio App.3d 687, 2006-Ohio-5802, 864 N.E.2d 657, ¶ 75 (2d Dist.).
Accordingly, “there is not a conclusive presumption of prejudice.” Keiber v. Spicer
Const. Co., 2d Dist. Greene Nos. 98CA23, 98CA30, 1999 WL 335140, *3 (May 28, 1999),
citing Schiebel at 84. “To establish prejudice from such ex parte communications, ‘the
complaining party must first produce some evidence that a private contact, without full
knowledge of the parties, occurred between the judge and jurors which involved
substantive matters.’ ” State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d
433, ¶ 84, quoting State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984), paragraph
thirteen of the syllabus. “The complaining party must also show actual prejudice.”
(Citations omitted.) Id. Therefore, “[t]he communication must have been of a
substantive nature and in some way prejudicial to the party complaining.” Schiebel at
84.
{¶ 33} “A statement of the trial court or its official is not substantive if it does not
address any legal issues, any fact in controversy, any law applicable to the case, or some -18- similar matter.” (Citations omitted.) State v. DiPietro, 10th Dist. Franklin No. 09AP-202,
2009-Ohio-5854, ¶ 17. “[I]f the communication is not ‘substantive,’ the error is
harmless.” (Citations omitted.) State v. Allen, 73 Ohio St.3d 626, 630, 653 N.E.2d 675
(1995). “[E]ven where the communication involves a substantive issue, the defendant
still must demonstrate that he was prejudiced by the communication.” (Citation omitted.)
State v. Cook, 10th Dist. Franklin No. 05AP-515, 2006-Ohio-3443, ¶ 36.
{¶ 34} Although couched as an ineffective assistance claim, in State v. Floyd, 2d
Dist. Montgomery No. CA 6204, 1980 WL 352467 (Apr. 17, 1980), we addressed a
situation similar to the case at bar. In Floyd, a juror reported to the bailiff that he had
heard the defense counsel convey his personal opinion regarding the defendant’s guilt.
Id. at *6. In response, the trial court decided to interview the juror on the record without
the presence of counsel. Id. After the interview, the trial court excused the juror and
replaced him with an alternate. Id.
{¶ 35} On appeal, we reviewed the record of the interview and concluded that the
appellant failed to demonstrate any prejudice resulting from the trial court conducting the
interview of the juror without counsel being present. Id. at *7. We further found that any
error in conducting the interview in such a manner was harmless, as there was nothing
indicating that it precluded the defendant from receiving a fair trial. Id. Compare United
States v. Gay, 522 F.2d 429, 435 (6th Cir.1975) (finding “the total absence of a record of
the proceedings in which the changes in the makeup of the jury occurred requires us to
assume prejudice”).
{¶ 36} In this case, the trial court followed the same procedure as in Floyd in that it
made a record of the ex parte interview it had with Juror No. 3. The trial court specifically -19- mentioned that the purpose for interviewing Juror No. 3 outside the presence of the
parties and counsel was to prevent them from hearing where the jury was in its
deliberations. We note that the Supreme Court of Ohio has stated that:
Courts face a delicate and complex task whenever they undertake to
investigate reports of juror misconduct or bias during the course of a trial.
This undertaking is particularly sensitive where * * * the court endeavors to
investigate allegations of juror misconduct during deliberations. As a
general rule, no one—including the judge presiding at a trial—has a “right to
know” how a jury, or any individual juror, has deliberated or how a decision
was reached by a jury or juror.
Robb, 88 Ohio St.3d at 81, 723 N.E.2d 1019.
{¶ 37} Regardless of the trial court’s reasoning for interviewing Juror No. 3 in
private, the record clearly establishes that the interview only concerned Juror No. 3’s
behavior. The trial court did not discuss any legal issues, fact in controversy, applicable
law, or other similar matter with Juror No. 3. Therefore, the trial court’s communication
with Juror No. 3 was non-substantive, having nothing to do with the merits of Zaragoza’s
case. Because the communication was non-substantive, any error in conducting the
interview in private was, at worst, harmless. Allen, 73 Ohio St.3d at 630, 653 N.E.2d
675.
{¶ 38} We also find that the trial court’s ex parte communications with the jury
foreperson amounted to, at worst, harmless error. The trial court advised counsel on the
record about these communications and the record indicates that the communications
were non-substantive in that they only concerned Juror No. 3’s behavior. Furthermore, -20- the foreperson eventually discussed Juror No. 3’s behavior on the record in the presence
of both counsel, and thereafter, counsel had an opportunity to be heard and object before
the judge made its decision regarding the removal of Juror No. 3. Accordingly, no
prejudice resulted from the trial court’s prior ex parte communications with the jury
foreperson.
{¶ 39} The record also indicates that the bailiff’s communication with the alternate
juror was non-substantive, as it concerned the procedural matter of requesting the
alternate juror’s presence at court in the event Juror No. 3 was dismissed. See, e.g.,
State v. Robinson, 12th Dist. Fayette No. CA2005-11-029, 2007-Ohio-354, ¶ 41
(concluding bailiff’s question to jurors regarding whether they intended to continue to
deliberate or retire for the evening “was merely procedural and did not involve substantive
issues of the case or in any way relate to appellant’s guilt or innocence”). Moreover, the
bailiff’s other communications with the jurors about Juror No. 3 were merely a product of
the jurors following the trial court’s admonition to report and explain any personal issues
to the bailiff. See Trial Trans. Vol. I (Mar. 2, 2015), p. 131. This is a standard
admonition. See Ohio Jury Instructions, CR Section 205.03 (Rev. Aug. 15, 2012).
Therefore, contrary to Zaragoza's claim otherwise, these communications were not
inappropriate and were also non-substantive in that they only concerned Juror No. 3’s
behavior.
{¶ 40} Based on the foregoing, we conclude that all the communications at issue
are non-substantive and that Zaragoza has failed to demonstrate that the
communications prevented him from receiving a fair trial. In addition, the relief Zaragoza
would be entitled to as a result of any improper communication would be a new trial, -21- which is already necessary in this case given that the jury could not reach a unanimous
verdict and a mistrial was declared. Accordingly, any error in the communications at
issue would be harmless.
{¶ 41} Zaragoza’s Second Assignment of Error is overruled.
Third Assignment of Error
{¶ 42} Zaragoza’s Third Assignment of Error is as follows:
SUBJECTING MR. ALVAREZ ZAR[A]GOZA TO A THIRD TRIAL
VIOLATES HIS DOUBLE JEOPARDY PROTECTIONS.
{¶ 43} Under his Third Assignment of Error, Zaragoza argues that the trial court
erred in overruling his motion to dismiss because trying him a third time after two mistrials
would violate his constitutional rights under the Double Jeopardy Clause. We again
disagree.
{¶ 44} The Double Jeopardy Clause ensures that a state may not put a defendant
in jeopardy twice for the same offense. Benton v. Maryland, 395 U.S. 784, 89 S.Ct.
2056, 23 L.Ed.2d 707 (1969). “The Double Jeopardy Clause only applies ‘if there has
been some event, such as an acquittal, which terminates original jeopardy.’ ” State v.
Griffin, 2d Dist. Montgomery No. 21578, 2007-Ohio-2099, ¶ 10, quoting Richardson v.
United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). It is
well-established that a mistrial as a result of a deadlocked jury does not invoke double
jeopardy implications because “ ‘a hung jury is not an event that terminates the original
jeopardy to which [the defendant] was subjected.’ ” Id. “In other words, a hung jury is
not the equivalent of an acquittal.” Id. Therefore, “a retrial following a ‘hung jury’ does -22- not violate the Double Jeopardy Clause.” Richardson at 324.
{¶ 45} Zaragoza, however, claims that “the unique hung jury situation” in this case
caused jeopardy to attach after his second mistrial because he believes it was the trial
court’s error in replacing Juror No. 3 that caused the mistrial. In support of this
contention, Zaragoza cites the Supreme Court of Ohio’s holding in State v. Gunnell, 132
Ohio St.3d 442, 2012-Ohio-3236, 973 N.E.2d 243.
{¶ 46} In Gunnell, the Supreme Court considered whether a juror’s outside
research, i.e., a handwritten definition of the word “perverse” and an instruction on
“involuntary manslaughter” that the juror had printed off the internet, constituted grounds
for a mistrial. Id. at ¶ 9-10. After learning of the juror’s possession of this information,
the trial court conducted a brief hearing during which the court informed the parties of the
issue that had developed regarding the juror’s outside research and then proceeded to
question the juror regarding her research, including what information she had found, why
she had looked for it, and whether she had shared that information with any other jurors.
Id. at ¶ 11. The trial court did not, however, question the juror to determine whether any
prejudice or bias was created by the information or whether the juror could disregard it.
Id. at ¶ 14, 32. Nevertheless, the trial court found that the juror was “irreparably tainted”
and declared a mistrial. Id. at ¶ 34.
{¶ 47} The Supreme Court held that the trial court in Gunnell “did not soundly
exercise [its] discretion” in declaring a mistrial because the trial court conducted a limited
inquiry of the juror and failed to ascertain whether the materials viewed by the juror
caused the juror to be biased or prejudiced against the defendant. Id. at ¶ 33-40. The
Supreme Court further held that because the record did not “establish that a manifest -23- necessity existed to declare a mistrial, double jeopardy attaches, and the Constitution
commands that no further prosecution of the appellee may occur.” Id. at ¶ 40.
{¶ 48} Zaragoza cites Gunnell for the general proposition that a trial court’s abuse
of discretion in declaring a mistrial invokes double jeopardy and prevents retrial.
However, in the present case, the trial court properly declared a mistrial based on the jury
being unable to reach a unanimous verdict. A hung jury is the “prototypical example” of a
situation where there is a manifest necessity for a mistrial. (Citations omitted.) State ex
rel. Bevins v. Cooper, 138 Ohio St.3d 275, 2014-Ohio-544, 6 N.E.3d 33, ¶ 7.
Accordingly, Gunnell simply does not apply to preclude Zaragoza from being retried for a
third time.
{¶ 49} Furthermore, Zargoza’s argument that jeopardy attaches because the
second mistrial was caused by the trial court’s failure to exercise sound discretion in
replacing Juror No. 3 is based on a speculative chain of events, i.e., that Juror No. 3’s
replacement caused the jury deadlock which resulted in the second mistrial. Not only is
there nothing in the record supporting such a claim, but we have already concluded under
Zaragoza’s First Assignment of Error that the trial court did not abuse its discretion in
replacing Juror No. 3. Therefore, Zaragoza’s argument otherwise lacks merit.
{¶ 50} Zaragoza’s Third Assignment of Error is overruled.
Conclusion
{¶ 51} Having overruled the three assignments of error raised by Zaragoza, the
judgment of the trial court is affirmed.
............. -24-
FAIN, J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck, Jr. Michele D. Phipps Jon Paul Rion Nicole Rutter-Hirth Hon. Barbara P. Gorman