Trial Court Allowed Alternate Jurors to Be Present During Deliberations
State v. Gross, 97 Ohio St.3d 121, 2002 Ohio 5524, 776 N.E.2d 1061, involved a circumstance where the defendant did object when the trial court allowed the alternate jurors to be present during deliberations on sentencing. Id. at P 122.
The lower court did, however, instruct the alternate jurors to listen and follow the deliberations, but not to participate in the deliberations in any way, either through words or gestures. Id. at P 123-124.
The court also told the alternate jurors that they were not to have any conversations. Id. at P 124.
Nevertheless, during deliberations the alternate jurors played a game of cards, "threw pens and things," and one alternate juror commented that he thought that the deliberating jurors were being "pressured in making decision." Id. at P 125-129.
Upon learning of the alternate jurors behavior, the trial court swore in the bailiffs and took testimony concerning that behavior. Id. at P 129.
Defense counsel moved for a mistrial, which was denied by the court. Id.
The trial judge then decided to bring the jury, including the alternate jurors, back into the courtroom in order to repeat his jury instructions. Id.
Before the court could, however, follow through on this decision, it received a note from the jury foreman. Id. the note stated that the two jurors who were accused of being pressured did not, in fact, feel that way and that the jury had reached a decision. Id. P 130-131.
Without reinstructing the jury, the court brought the jury and the alternates back into the courtroom and accepted the jury's judgment. Id. P 132.
On appeal, the Ohio Supreme Court reiterated that sending alternate jurors to the jury room during deliberations was error. Id. P 133.
The court then distinguished Gross from Murphy and Jackson because the defendant's trial counsel did object to permitting the alternate jurors to be present during deliberations. Id. P 134.
Because there was an objection, the Gross court found that there was presumed prejudice. Id.
Consequently, the majority concluded that "reversible error occurs where, over objection, an alternate juror participates in jury deliberations resulting in an outcome adverse to the defendant and either:
(1) the state has not shown the error to be harmless, or (2) the trial court has not cured the error." Id. P 137.