State v. Rudge , 89 Ohio App. 3d 429 ( 1993 )

While I concur in the analysis of the majority in which it concludes that the issues involved in this case are not controlled by Evid.R. 606(B), I do not share its view "that alternate jurors who are not present during deliberations and do not participate in rendering the verdict are not members of the trial jury for purposes of the aliunde rule." In my view, neither the Wicker nor Hutton case, supra, nor other Ohio authority supports this proposition.

Although Hutton may arguably provide a more analogous situation, the pertinent consideration in Hutton is at53 Ohio St.3d at 45, 559 N.E.2d at 443, where the Supreme Court held: "However, R.C. 2929.03 speaks of the ``the trial jury.' We hold that the ``trial jury' consists of all the jurors, including any properly substituted alternates."

It is my position that the foregoing holding dealt more expressly with definitional concepts of the status of a "trial juror" as distinguished from a purely alternate juror who would be discharged at the outset of deliberations consistent with and pursuant to Crim.R. 24(F). I do not believe that the Hutton conclusion on this point can be extended to modify the traditional interpretation and application of the second sentence of Evid.R. 606(B).

I write separately since the particular facts and ensuing issues arising from that predicate in this case appear to compel refocusing of the legal questions presented here. Specifically, the record in this matter appears to augur for a renewed examination as to whether the ends of justice are properly served by those authorities that opine that the second sentence in the foregoing rule should also be a bastion upon which to premise the application of the aliunde rule to factual occurrences involving alleged or actual jury misconduct which occur outside the actual jury deliberations. It appears to this writer that the aliunde rule, in states like Ohio that continue to preserve it, should not be a mechanism to interdict and inhibit penetrating probing of alleged and/or actual constitutional violations occurring during or after voir dire, such as the right to be tried before an impartial jury, where, again, these occurrences are not part of the actual deliberation. See State v. Luoma (Dec. 7, 1990), Montgomery App. No. 10719, unreported, 1990 WL 197944. It seems most basic to this writer that this fulcrum would be better served by an encouragement of substantive analysis over the procedural dictates of the aliunde rule encompassed within Evid.R. 606(B) as promulgated pursuant to Section 5(B), Article IV, of the Ohio Constitution.¹ Perhaps the Supreme Court will have occasion to reexamine this area, in this light, in the near future.

¹ Because the Constitution grants the Supreme Court exclusive rule-making authority, it would seem appropriate that it recommend that the Rules Advisory Committee examine whether Evid.R. 606(B) should be amended in order to ensure that thealiunde rule not be applied to situations in which the juror misconduct occurs outside of jury deliberations.