State v. Reiner , 89 Ohio St. 3d 342 ( 2000 )

Lundberg Stratton, J.

The Lucas County Court of Appeals stated the certified conflict as “whether Evid.R. 606(B) permits, under any circumstances, inquiry of a juror as to the effect of extraneous information or improper outside influence upon his or her decision making process.” The dissenting judge framed the same issue as follows: “[I]n a case of jury misconduct (statements, conversations or remarks made to a juror), once evidence aliunde of jury misconduct is provided, whether a court may inquire of a juror as to whether or not the juror remained uninfluenced by the misconduct (i.e., impartial) so that the defendant was not denied his substantial rights.” Because this latter statement more succinctly states the issue, we shall consider the certified conflict in the terms articulated by the dissenting judge.

The state’s discretionary appeal involves the related issues of burden of proof when there are allegations of juror misconduct in a criminal case, and whether an affidavit from an alternate juror constitutes outside evidence sufficient to trigger the application of Evid.R. 606(B), otherwise known as the aliunde rule.

The defendant’s cross-appeal challenges the validity of the transactional immunity granted to Susan Batt, the reliability of the opinions rendered by the state’s medical witnesses, the trial court’s failure to admit Dr. Patrick’s grand jury testimony for impeachment purposes, and Dr. Balraj’s expression of her medical opinion on causation.

For the reasons more fully set forth below, we reverse the judgment of the court of appeals as to juror misconduct and the grant of transactional immunity to Susan Batt, and we affirm the remainder of the court’s judgment.

JUROR MISCONDUCT

Because the certified conflict presumes the existence of aliunde evidence, before we may address this issue, we must decide the threshold question of whether Evid.R. 606(B), also known as the aliunde rule, applies to alternate jurors. For the reasons more fully set forth below, we hold that the prohibitions against receiving evidence from a juror in Evid.R. 606(B) apply to alternate jurors. Therefore, evidence received from an alternate juror, without other outside evidence, is insufficient aliunde evidence under Evid.R. 606(B) upon which a court may rely in order to conduct an inquiry of other jurors into the validity of a verdict.

It is a longstanding rule that “the verdict of a jury may not be impeached by the evidence of a member of the jury unless foundation for the introduction of such evidence is first laid by competent evidence aliunde, i.e., by evidence from some other source.” State v. Adams (1943), 141 Ohio St. 423, 427, 25 O.O. 570, 572, 48 N.E.2d 861, 863. Ohio has adopted this rule in Evid.R. 606(B), which states:

“Upon 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 his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his 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. However a juror may testify without the presentation of any outside evidence concerning any threat, any bribe, any attempted threat or bribe, or any improprieties of any officer of the court. His affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying will not be received for these purposes.” (Emphasis added.)

The rule is intended to preserve the integrity of the jury process and the privacy of deliberations, to protect the finality of the verdict, and to insulate jurors from harassment by dissatisfied or defeated parties by prohibiting a court from questioning a juror about what occurred during deliberations, or about anything else that may have affected the juror’s mind or emotions in the deliberations process once a final verdict is rendered. State v. Schiebel (1990), 55 Ohio St.3d 71, 75, 564 N.E.2d 54, 61; State v. Adams, 141 Ohio St. at 427, 25 O.O. at 572, 48 N.E.2d at 863. However, if there is a foundation of outside evidence of extraneous prejudicial information, or of any threat, bribe, or improper conduct by an officer of the court, the rule permits a court to ask a juror about that outside evidence.

The trial court determined that Rolf Sandberg’s affidavit was not competent evidence to attack the jury’s verdict under Evid.R. 606(B). The court reasoned that the intent of Evid.R. 606(B), to prevent an attack by a disgruntled juror, should likewise apply to an alternate juror.

The court of appeals reversed on the basis of State v. Rudge (1993), 89 Ohio App.3d 429, 624 N.E.2d 1069: The Rudge court considered an alternate juror to be outside the regular jury panel because an alternate does not participate in deliberations or in reaching the final verdict. Id., 89 Ohio App.3d at 437, 624 N.E.2d at 1074. In Rudge, after the trial was over, an alternate juror informed the bailiff that on two occasions he had overheard other jurors make statements about the defendant prior to opening statements and during the trial. The trial court conducted an in camera examination of the alternate juror, followed by an examination of the remaining jurors. The court granted a mistrial on the basis that one of the statements was prejudicial. The court of appeals noted that, as a nondeliberating juror, an alternate may not be viewed as a member of the jury, so that the alternate’s testimony may constitute aliunde evidence for purposes of Evid.R. 606(B). However, the Rudge court concluded that Evid.R. 606(B) was not applicable, because the trial court’s inquiry did not threaten or reveal discussion during deliberations. The Rudge court considered it proper to inquire into the partiality of jurors to determine if the defendant had received a fair trial before an impartial jury, but not to inquire into deliberations. Id., 89 Ohio App.3d at 439, 624 N.E.2d at 1076. Based upon Rudge, the court of appeals held that Rolf Sandberg’s affidavit was sufficient outside evidence for the court to have inquired of the jurors about the alleged misconduct that occurred during the trial.

It is apparent from the language of Evid.R. 606(B) that the rule becomes applicable only when the validity of a verdict is questioned. Although Evid.R. 606(B) protects the deliberations process, the language of the rule does not limit its application to the examination of improper conduct or communications only during deliberations. The rule also prohibits inquiry into “the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict * * * or concerning his mental processes in connection therewith.” This may involve inquiry into improper conduct that occurred throughout the trial, during the presentation of evidence, or among jurors during the course of the trial that may influence a juror’s mind, emotions, or mental processes during deliberations. Events that occur during the trial may also have an effect upon the jurors’ deliberations.

Alternate jurors are selected at the same time and in the same manner as the entire jury panel. An alternate juror participates as a regular member of the jury panel and is subject to the same jury admonitions and rules until discharged. The alternate juror sees and hears the entire trial and is prepared to deliberate. An alternate juror may become a member of the deliberating panel. State v. Hutton (1990), 53 Ohio St.3d 36, 45, 559 N.E.2d 432, 443.

Here, Rolf Sandberg was an alternate juror who claimed that he violated jury rules during the trial. However, he waited until after the verdict before notifying defense counsel about his conduct in an effort to challenge the finality of the verdict. When questioned by the trial judge, Rolf Sandberg admitted that he was frustrated that he had not been able to deliberate and that he was upset with the guilty verdict. Although the defense claimed that Rolf Sandberg’s misconduct affected the deliberations process and tainted the verdict, the defendant presented no outside evidence of the improper conduct. This is precisely the situation that the aliunde rule was intended to prevent — a disgruntled juror attacking the verdict.

Had the trial judge been notified of this conduct during the trial, the judge would have had an opportunity to inquire of the jurors about any misconduct or violation of the jury rules because the aliunde rule was not yet applicable. See State v. Taylor (1991), 73 Ohio App.3d 827, 598 N.E.2d 818. Although Rolf Sandberg did not deliberate, he was privy to the jury process up to the actual deliberations. His alleged misconduct during the trial had nothing to do with his status as an alternate juror and could just as likely have been committed by a regular juror. The defense sought to attack the final verdict based upon Rolf Sandberg’s conduct during the trial prior to his discharge. Therefore, for purposes of the aliunde rule, one’s status as an alternate juror should not preclude application of the rule. Therefore, we disapprove of the decision in State v. Rudge to the extent that it holds otherwise.

When the defendant moved for acquittal or, in the alternative, a new trial, based solely on the alleged juror misconduct in Rolf Sandberg’s affidavit, the trial court properly concluded that it was prohibited by Evid.R. 606(B) from considering Rolf Sandberg’s affidavit or testimony for purposes of attacking the jury verdict. The court correctly disregarded the testimony of other jurors. Consequently, we reverse the judgment of the court of appeals and reinstate the judgment of the trial court with respect to the issue of juror misconduct.

Having determined that the affidavit from the alternate juror was not competent evidence aliunde to challenge the jury’s verdict, our resolution of this case effectively removes any conflict that may have existed with State v. Thomas, supra, because that case involved a juror’s contact with a non-juror.

IMMUNITY FROM PROSECUTION

Defendant’s cross-appeal challenges the validity of the trial court’s grant of immunity to Susan Batt. The defendant alleges that the grant of transactional immunity pursuant to R.C. 2945.44 was unlawful because Susan Batt did not have a valid Fifth Amendment privilege against self-incrimination upon which to base the immunity. Defendant claims that, as a consequence, his rights were prejudiced. We agree.

The Fifth Amendment declares that “[n]o person * * * shall be compelled in any criminal case to be a witness against himself * * * .” This right, or privilege, ensures that a person is not compelled to produce evidence that may tend to incriminate him. The privilege, however, is not unlimited. A person may decline to answer specific questions “only when the danger of incrimination is real and appreciable, rather than imaginary and insubstantial,” or when the answer could reasonably “[furnish] a link in the chain of evidence” against him. State v. Jenkins (1984), 15 Ohio St.3d 164, 228, 15 OBR 311, 366, 473 N.E.2d 264, 318. See United States v. Apfelbaum (1980), 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250; Hoffman v. United States (1951), 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118, 1124.

When a witness asserts a privilege against self-incrimination, a court may not rely upon the witness’s claim alone. State v. Landrum (1990), 53 Ohio St.3d 107, 120, 559 N.E.2d 710, 726. The court has a duty to determine if the witness’s refusal to answer is justified. Id. If the court determines that a witness is mistaken about the danger of incrimination, then the court must require the witness to answer the question. Hoffman v. United States, 341 U.S. at 486, 71 S.Ct. at 818, 95 L.Ed. at 1124.

However, when the court is satisfied that the witness’s refusal to answer is justified, a court may either excuse the witness from testifying or, upon the written request of the prosecuting attorney, may compel the witness to answer by granting that person immunity from prosecution for any criminal act about which the person may testify. R.C. 2945.44; State v. Kirk (1995), 72 Ohio St.3d 564, 651 N.E.2d 981; State ex rel. Leis v. Outcalt (1982), 1 Ohio St.3d 147, 1 OBR 181, 438 N.E.2d 443.

In this case, the trial court relied upon R.C. 2945.44. It states:

“(A) In any criminal proceeding in this state * * *, if a witness refuses to answer or produce information on the basis of his privilege against self-incrimination, the court of common pleas of the county in which the proceeding is being held, unless it finds that to do so would not further the administration of justice, shall compel the witness to answer or produce the information, if both of the following apply:

“(1) The prosecuting attorney of the county in which the proceedings are being held makes a written request to the court of common pleas to order the witness to answer or produce the information, notwithstanding his claim of privilege;

“(2) The court of common pleas informs the witness that by answering, or producing the information he will receive immunity under division (B) of this section.

“(B) If, but for this section, the witness would have been privileged to withhold an answer or any information given in any criminal proceeding, and he complies with an order under division (A) of this section compelling him to give an answer or produce any information, he shall not be prosecuted or subjected to any criminal penalty in the courts of this state for or on account of any transaction or matter concerning which, in compliance with the order, he gave an answer or produced any information.”

Transactional immunity is a prosecutorial tool to enable the government to obtain necessary testimony. Leis, 1 Ohio St.3d at 149,1 OBR at 183, 438 N.E.2d at 446. The practical effect of a grant of immunity is that a witness is compelled to give information that the witness would otherwise be privileged to withhold in order to assist the prosecution. Often the witness who is compelled to testify is a co-defendant or is facing other charges related to the defendant’s charges. The prosecution is willing to forgo possible prosecution of the witness by granting the witness immunity in exchange for useful testimony that will assist in convicting the defendant.

There is no need for a grant of immunity where the witness denies all culpability. In situations where an admission of guilt by one person would completely exonerate any possible guilt of another person, as is the case here, a grant of immunity is unnecessary and improper. An assertion of the Fifth Amendment privilege by Susan Batt would lead one to believe that she possessed self-incriminating knowledge regarding her own culpability. Had Susan Batt been granted immunity and testified that she had shaken Alex and caused his death, the prosecution would have no further grounds to prosecute Matthew Reiner. To grant immunity in such a situation may have allowed the guilty party to go free and would not “further the administration of justice.”

Susan Batt’s counsel informed the court in advance of her testifying that she intended to assert her Fifth Amendment privilege and would refuse to answer questions. All counsel present knew that she had likewise asserted this privilege in a related juvenile court proceeding and did not answer any questions. Susan Batt’s counsel explained that, although Susan Batt was not the focus of a criminal investigation, she had been with the victim within the potential time frame of the fatal trauma, she was the focus of the defense, and she did not know the identity of defense witnesses who may be called to inculpate her. Susan Batt would testify only if granted “complete and absolute immunity.”

The prosecution initially seemed perplexed as to why Susan Batt would refuse to testify. The prosecution said that Susan Batt had told the Children’s Services Board that she had nothing to do with the victim’s injuries, and her counsel had not indicated that her testimony would incriminate her. The prosecution informed the court that it had no intention of prosecuting Susan Batt. She was not being investigated and there was insufficient evidence to take to the grand jury. The prosecution even told the court, “I don’t know how in the interest of justice I can request immunity for this witness because it doesn’t seem to me that she in any way has anything to assert the Fifth Amendment privilege to protect herself, or I’m unaware of anything.” However, when it became apparent that Susan Batt did not intend to testify, the prosecution reluctantly agreed to consider a request that the court grant Susan Batt transactional immunity, rather than request that the court use its contempt powers to force a reluctant witness to testify.

When Susan Batt took the witness stand at trial and invoked her Fifth Amendment privilege, the prosecution submitted a written request asking the court to grant her immunity pursuant to R.C. 2945.44. The court conducted a hearing on whether the grant of immunity would “further the administration of justice.” R.C. 2945.44. However, the court did not address the prosecution’s earlier concerns that Susan Batt had no apparent reason, other than her fear of Matthew Reiner’s defense, to assert the Fifth Amendment privilege. Nevertheless, the court decided that it would be in the “interests of justice” to compel Susan Batt to testify. The court granted her transactional immunity.

Based on the prosecutors’ statements alone, the trial judge had a duty to question Susan Batt’s assertion of the privilege and whether her testimony would, as she claimed, be self-incriminating. State v. Landrum, supra. Instead, the trial judge merely relied upon Susan Batt’s claim of privilege and disregarded the questions and concerns expressed by prosecutors. Susan Batt’s testimony did not incriminate her, because she denied any involvement in the abuse. Thus, she did not have a valid Fifth Amendment privilege.

A court may resort to R.C. 2945.44 only after reaching the threshold determination that the witness’s testimony would be self-incriminating. This is apparent from the language of subsection (B) of the statute, which states that “[i]f, but for this section, the witness would have been privileged to withhold an answer or any information given in any criminal proceeding * * (Emphasis added.) We agree with the defendant that before a court may exercise its authority to grant a person transactional immunity, it is implicit that the person has validly asserted the privilege against self-incrimination. Once the issue of immunity under R.C. 2945.44 arises, it is inherent that the court has already determined that the witness has a valid privilege against self-incrimination in order to invoke immunity. Here the trial court failed to make that determination.

The court of appeals below likewise recognized this threshold determination when it stated that “the language of R.C. 2945.44 implies that a trial court make some determination of the validity of the privilege against self-incrimination antecedent to a grant of statutory immunity.” Nevertheless, the appellate court focused on circumstances that would have led the trial court to believe that Susan Batt was not mistaken in asserting her Fifth Amendment' right against self-incrimination, i.e., she knew that the defense blamed her for the baby’s death and she did not know what evidence, if any, the defense may have had that would implicate her in the fatal trauma. Again, these are merely Susan Batt’s assertions. A defense theory is not a ground for a grant of immunity when the witness continues to deny any self-incriminating conduct. The appellate court did not consider the prosecutors’ statements or the fact that Susan Batt had denied any involvement in the abuse to Alex when' questioned by Children’s Services Board. These are factors that could and should have been considered by the trial court in determining whether Susan Batt’s fear of self-incrimination was real or imaginary.

In addition, the wrongful grant of immunity resulted in serious prejudice to the defendant. The essence of Matthew Reiner’s defense was that Susan Batt was responsible for Alex’s death. When the court granted her immunity, the court in effect was telling the jury that Susan Batt did not cause Aex’s injuries. To “further the administration of justice,” the jury should have been able to hear and evaluate all the evidence to decide whether someone other than Matthew Reiner was responsible for Alex’s death. A grant of immunity to Susan Batt under these circumstances seriously affected the fairness of the trial and resulted in prejudice to the defendant.

The state argues that a defendant lacks standing to challenge a grant of immunity. State v. Bika (Oct. 19, 1978), Marion App. No. 9-78-6, unreported; State v. Steverson (Sept. 15, 1998), Franklin App. No. 97APA11-1466, unreported, 1998 WL 634949. This argument assumes that the grant of immunity met the statutory threshold of a valid privilege against self-incrimination. Because Susan Batt lacked a valid Fifth Amendment privilege against self-incrimination and the grant of immunity was unlawful, the state’s standing argument lacks merit.

The state also contends that the defendant failed to preserve any error for appeal by failing to object to the grant of immunity. We do not agree. Defense counsel sufficiently objected to the grant of immunity when the court conducted a hearing on whether the grant of immunity would further the administration of justice.

Therefore, we find that a court has no judicial discretion to grant or deny immunity until and unless the statutory requirements for immunity are met. This includes a valid assertion of one’s Fifth Amendment privilege. Leis, 1 Ohio St.3d at 149, 1 OBR at 183, 438 N.E.2d at 446. Because Susan Batt did not have a valid Fifth Amendment privilege, the trial court’s grant of immunity was erroneous and unlawful.

EVIDENTIARY ISSUES

The defense contends that Dr. Patrick’s theory of the cause of death was not based upon objectively verifiable facts as required by Evid.R. 702(C)(1). Therefore, it was not reliable evidence and Dr. Patrick’s testimony should have been stricken. The defense relies upon the testimony of its expert witnesses who opined that the tissue slides taken by Dr. Patrick did not show the damage about which he testified.

A decision to admit the testimony of an expert, once qualified, is generally within the broad discretion of the trial court and will not be disturbed absent a showing of an abuse of discretion. See State v. Williams (1996), 74 Ohio St.3d 569, 576, 660 N.E.2d 724, 732; State v. Mack (1995), 73 Ohio St.3d 502, 511, 653 N.E.2d 329, 337. An abuse of discretion requires more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary, or unconscionable. State v. Clark (1994), 71 Ohio St.3d 466, 470, 644 N.E.2d 331, 335; State v. Moreland (1990), 50 Ohio St.3d 58, 61, 552 N.E.2d 894, 898; State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 149.

Here, the appellate court concluded that defense challenges to the reliability of the brain tissue slides concerned the weight of the evidence, not its admissibility. We agree. This decision was within the broad discretion of the trial court and the court did not abuse its discretion with respect to the reliability of expert evidence within the confines of Evid.R. 702(C).

The defense also contends that Dr. Balraj failed to express her opinion as to the cause of death in terms of probability. When asked her opinion “to a reasonable degree of medical certainty as to when the injury was inflicted in relationship to the collapse,” Dr. Balraj stated that “the type of injuries * * * [are] consistent with the child sustaining the injury between 10:30 p.m. and 11:00 p.m.” The appellate court determined that the use of the word “consistent” was not fatal to Dr. Balraj’s overall testimony because she was answering a hypothetical question predicated upon the appropriate standard of' medical certainty. In addition, her testimony was cumulative. Looking at the overall context of her testimony, we agree that the trial court did not abuse its discretion when it refused to strike the testimony of Dr. Balraj for failure to include the word “probable” in her opinion.

The defense claims that the trial court should have admitted the grand jury testimony of Dr. Patrick as a prior inconsistent statement under Evid.R. 613(B). The defense contended that the opinion offered by Dr. Patrick before the grand jury as to the cause of death was different from the opinion that he rendered at trial. The trial court permitted the defense to cross-examine Dr. Patrick about a particular statement he had made to the grand jury. Dr. Patrick initially disagreed with statement but, after reviewing his grand jury transcript, he subsequently said that he recalled making the statement, although he attempted to qualify his answer and put it into context with the remainder of his grand jury testimony. The statement alone could appear to be inconsistent.

The defense moved to introduce into evidence the one page from the transcript of Dr. Patrick’s grand jury testimony that contained the alleged inconsistent statement. The court said it would admit the entire transcript from the grand jury in order to put the alleged inconsistency into context; however, the defense would not agree. Therefore, the court excluded the one-page exhibit.

Evid.R. 613(B)(1) states, in part, that extrinsic evidence of a prior inconsistent statement is admissible “[i]f the statement is offered solely for the purpose of impeaching the witness, the witness is afforded a prior opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness on the statement or the interests of justice otherwise require.”

Although the defense fulfilled the requirements of Evid.R. 613(B), we agree with the reasoning of the trial court that it would have been improper to admit only one page of Dr. Patrick’s grand jury testimony because it would not fairly and accurately represent his testimony to the grand jury. The trial court acted within its discretion to exclude the exhibit when defense counsel would not agree to admission of the entire transcript. Evid.R. 106.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the court of appeals with respect to the juror misconduct and the grant of immunity to Susan Batt, and we affirm the remainder of the court’s judgment. This cause is remanded to the trial court for a new trial consistent with this opinion.

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

Wolff, F.E. Sweeney and Pfeifer, JJ., concur. Douglas, J., concurs separately. Moyer, C.J., dissents. Cook, J., concurs in part and dissents in part. William H. Wolff, Jr., J., of the Second Appellate District, sitting for Resnick, J.