State v. McKnight

[Cite as State v. McKnight, 2021-Ohio-2673.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
VINTON COUNTY
STATE OF OHIO, : Case No. 20CA721
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
GREGORY McKNIGHT, :
Defendant-Appellant. : RELEASED 8/3/2021
APPEARANCES:
John Gleeson, Marisa R. Taney, and Malini Malhotra, Debevoise & Plimpton LLP, New
York, New York and John P. Curp, Blank Rome LLP, Cincinnati, Ohio, for appellant.
James Payne, Vinton County Prosecuting Attorney, and Stephen E. Maher, Special
Assistant Vinton County Prosecutor, Sr. Assistant Ohio Attorney General’s Office,
Columbus, Ohio, for appellee.
Hess, J.
{¶1} Gregory McKnight appeals the trial court’s denial of his motion for leave to
seek a motion for new trial pursuant to Crim.R. 33(B). McKnight contends that the trial
court abused its discretion and violated his due process rights when it denied his motion
because he was unavoidably prevented from filing his motion for new trial within the 14-
day time period under Crim.R. 33(B). He argues he had no knowledge of the juror
misconduct and could not have learned of it within the 14 days in the exercise of
reasonable diligence.
{¶2} The verdict was rendered in McKnight’s case on October 14, 2002.
McKnight had until October 28, 2002 to interview the jurors and file a motion for new trial.
However, the trial court did not review whether McKnight made any effort to interview the
jury between October 14 and October 28, 2002. Instead, without a hearing, the trial court
Vinton App. No. 20CA721 2
cited to an affidavit made over a year later in December 2003 by McKnight’s attorney,
which described juror interviews that occurred in that month. The trial court erred as a
matter of law when it failed to apply the correct legal standard and applicable law to look
at the efforts, if any, made by McKnight during the relevant 14-day period in Crim.R. 33(B).
Additionally, the trial court erred when it applied the incorrect legal standard to whether
McKnight’s motion for leave was filed within a reasonable time of discovering the jury
misconduct. Thus, we sustain his assignment of error, reverse the trial court’s judgment,
and remand the cause for further proceedings.
I. Procedural History
{¶3} On October 14, 2002, a jury found McKnight guilty of aggravated murder,
kidnapping, aggravated robbery, and murder and recommended he be sentenced to
death. The trial court accepted the jury’s recommendation and issued its sentence
November 1, 2002. McKnight unsuccessfully appealed to the Supreme Court of Ohio.
State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315. The United
States Supreme Court denied further review of McKnight’s conviction and death
sentence. McKnight v. Ohio, 548 U.S. 912, 126 S.Ct. 2940, 165 L.Ed.2d 965 (2006).
Subsequent postconviction relief and habeas corpus petitions were also unsuccessful.
See State v. McKnight, 4th Dist. Vinton No. 07CA665, 2008-Ohio-2435 and McKnight v.
Bobby, S.D.Ohio No. 2:09-CV-059, 2018 WL 524872 (Jan 24, 2018), respectively.
{¶4} On April 1, 2019, McKnight filed a motion for leave to seek a motion for new
trial under Crim.R. 33(A)(2) for misconduct of the jury. McKnight alleged that in his
“challenges to his conviction and sentence in the state and federal courts, he repeatedly
sought permission to inquire of the jurors in his case. Those requests were denied * * *.”
Vinton App. No. 20CA721 3
McKnight alleged that he was unable to interview the jury until 2017.1 He attached an
affidavit from an investigator who testified that he began locating and interviewing jurors
in May 2017. Additionally, McKnight attached affidavits of two jurors, one affidavit
acquired in January 2018 and one in February 2019, each alleging incidents of juror
misconduct that occurred during jury deliberations.
{¶5} The state opposed the motion for leave on the ground that McKnight failed
to prove by clear and convincing evidence that he was unable to interview the jury in
2002, immediately after the verdict was rendered. The state attached excerpts from the
trial transcript in which the trial judge released the jury from service and instructed them
that they were free to discuss the case with anyone. The state also argued that McKnight’s
attorney interviewed two jurors in December 2003 and prepared an affidavit in that same
month describing the information obtained from those interviews. The state argued that
McKnight could have interviewed the jury immediately after the verdict was rendered in
October 2002 and, at the very latest, in December 2003.
{¶6} The trial court denied McKnight’s motion for leave to seek a motion for new
trial without holding an evidentiary hearing or an oral argument. The trial court determined
that McKnight was not prevented from interviewing the jury prior to 2017 because the
December 2003 affidavit of his attorney showed that he was able to interview the jury in
December 2003. Based on the 2003 interviews, the trial court held, “The Court therefore
finds that Defendant was not unavoidably prevented from obtaining juror affidavits until
1Though McKnight claims he was repeatedly denied access to the jury by state and federal courts after his
sentence was issued, he does not explain how he was able to gain access to the jury for the first time in
2017 (i.e., whether he was required to file a request in a federal or state court, or whether he made this
effort on his own initiative).
Vinton App. No. 20CA721 4
the “Pena” decision.”2 Additionally, the trial court found that McKnight’s delay in seeking
leave to file a motion for new trial was unreasonable because, “McKnight initially
bypassed this Court instead bringing his claim in federal court. He only returned to this
Court after his efforts in federal court were rejected, returning to this Court a year after
his claim was presented in federal court.”
II. Assignment of Error
{¶7} McKnight assigns the following error for review:
I. The trial court abused its discretion, and violated Appellant’s due
process rights, when it denied Appellant’s Motion for Leave to Seek
a Motion for New Trial under Criminal Rule 33(B) where Appellant
was unavoidably prevented from presenting within 14 days of the trial
verdict evidence of overt racist bias in the court’s jury deliberations.
U.S. Const. amend. 14; Ohio Const. Art. I, § 16.
{¶8} McKnight contends that there are three interrelated errors. First, the trial
court made the determination of whether Pena-Rodriguez, supra, had retroactive
application to the motion for leave to seek a motion for new trial. He argues, “The trial
court’s conclusion regarding retroactivity is irrelevant to a decision on the merits of
McKnight’s motion for leave.” Second, McKnight contends that the trial court incorrectly
determined that he was not prevented from obtaining evidence of juror misconduct prior
to 2017 because Evid.R. 606(B), which governs the competency of juror as witness,
prevented them from interviewing the jury about potential misconduct. Third, McKnight
2 Pena-Rodriguez v. Colorado, __U.S.__,137 S.Ct. 855, 197 L.Ed.2d 107 (2017), which held that, “where
a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a
criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit
the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial
guarantee.” Id. at synopsis. McKnight’s underlying motion for a new trial alleges that jurors relied upon
racial stereotypes or animus to convict him and relies on Pena-Rodriguez for authority. However, the issue
before the trial court was not whether McKnight is entitled to a new trial under Pena-Rodriguez, but whether
he should be granted leave to file a motion for new trial.
Vinton App. No. 20CA721 5
argues that the trial court erred in finding that his motion for leave was not filed within a
reasonable time after the jury misconduct was discovered. He argues that his federal
public defenders “were denied authority to represent him in state court” and this explained
his delay in pursuing his motion for leave in state court.
III. Standard of Review and Legal Analysis
{¶9} “A motion for new trial pursuant to Crim.R. 33(B) is addressed to the sound
discretion of the trial court, and will not be disturbed on appeal absent an abuse of
discretion.” State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990), paragraph one of
the syllabus. “A trial court abuses its discretion when it makes a decision that is
unreasonable, unconscionable, or arbitrary. An abuse of discretion includes a situation in
which a trial court did not engage in a ‘sound reasoning process’; this review is deferential
and does not permit an appellate court to simply substitute its judgment for that of the trial
court.” (Internal citations and quotations omitted.) State v. Gavin, 2018-Ohio-536, 105
N.E.3d 373, ¶ 12 (4th Dist.).
{¶10} The motion before the trial court was a motion for leave to file a motion for
a new trial – not a motion for a new trial. McKnight’s ground for seeking a new trial was
jury misconduct under Crim.R. 33(A)(2), which allegedly occurred during jury
deliberations. See Crim.R. 33(A)(2) (“A new trial may be granted on motion of the
defendant for any of the following causes affecting materially his substantial rights: * * *
(2) misconduct of the jury, prosecuting attorney, or the witnesses for the state; * * * .”).
{¶11} An application for a new trial based on jury misconduct must be filed within
14 days after the verdict is rendered, “unless it is made to appear by clear and convincing
proof that the defendant was unavoidably prevented from filing his motion for new trial *
Vinton App. No. 20CA721 6
* * .” Crim.R. 33(B). The definition of “unavoidably prevented” is: “[A] party is unavoidably
prevented from filing a motion for new trial if the party had no knowledge of the existence
of the ground supporting the motion for new trial and could not have learned of the
existence of that ground within the time prescribed for filing the motion for new trial in the
exercise of reasonable diligence.” State v. Walden, 19 Ohio App.3d 141, 145-146, 483
N.E.2d 859 (10th Dist.1984). Therefore, the only issue before the trial court was whether
McKnight showed by clear and convincing evidence that he had no knowledge of the jury
misconduct and in the exercise of reasonable diligence could not have learned of the
misconduct within the 14 days after the verdict was rendered. The verdict was rendered
on October 14, 2002.
{¶12} The alleged jury misconduct occurred during deliberations, not on the
record in open court. “As a general rule, no one—including the judge presiding at 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.” Koch v. Rist, 89 Ohio St.3d 250, 252, 2000-Ohio-149,
730 N.E.2d 963 (acknowledging “the cardinal principle that the deliberations of the jury
shall remain private and secret in every case”). Because jury deliberations are conducted
in secrecy, misconduct that occurs during jury deliberations is unknown unless one or
more members of the jury voluntarily discloses it:
Misconduct of the jury, the prosecuting attorney or witnesses for the state
are particularly susceptible to nondiscovery within fourteen days after the
verdict where the misconduct did not consist of affirmative acts at trial but,
instead, involve matters not occurring in open court and generally not known
to either the court or counsel at the time of the occurrence.
Vinton App. No. 20CA721 7
Walden at 146 (finding that the trial court should have granted defendant’s motion for
leave to file a motion for a new trial and remanded to the trial court to address the merits
of the motion for new trial, which was based on jury and prosecutorial misconduct).
{¶13} Here it appears from the limited record before us that none of the jurors
voluntarily disclosed that any misconduct occurred within 14 days after the verdict was
rendered. In his motion for leave to seek a motion for new trial, McKnight described the
efforts taken after the verdict was rendered to interview the jury. He contends that he was
unable to investigate possible jury misconduct though “he repeatedly sought permission
to inquire of the jurors” in his “challenges to his conviction and sentence” and “those
requests were denied” by the courts. In his reply brief in support of his motion for leave,
McKnight again states that “after his conviction McKnight repeatedly sought permission
from the state courts to obtain juror statements” and the courts denied his request.
McKnight does not explain whether his trial counsel was unable to interview the jury
immediately after the verdict was rendered without first petitioning the trial court for
permission.
{¶14} In State v. Schiebel, 55 Ohio St.3d 71, 75, 564 N.E.2d 54 (1990) two co-
defendants, Schiebel and Warner, filed motions for leave to file a motion for new trial
outside the 14-day period alleging jury misconduct. Warner’s attorneys interviewed
several jurors immediately after the verdict was rendered, but did not ask about “juror
misconduct, outside influence, tampering, or other improper conduct” during the interview.
Id. Because his attorney made no attempt to ask questions about any misconduct during
the interview, the court determined, “It cannot be said with any degree of probability, let
alone conclusively, that Warner was unavoidably prevented from discovering any alleged
Vinton App. No. 20CA721 8
misconduct before the fourteen-day period lapsed.” Id. Schiebel’s attorney made no
attempt to interview the jury during the 14-day period and the court held, “It cannot be
said that Schiebel was unavoidably prevented from discovering an incident of juror
misconduct when he made no attempt toward such discovery.” Id.{¶15} Here, the trial court denied McKnight’s request for an evidentiary and oral
hearing on the motion for leave so we are limited to reviewing the parties’ briefs. It is not
clear from the record what efforts were made to interview the jury during the 14-day period
following the verdict (the period of October 14, 2002 to October 28, 2002) and whether a
court order barred juror interviews during that 14-day period. McKnight includes an
affidavit from an investigator who testified that he was assigned to McKnight’s case in
May 2017 and was able to locate all 12 jurors and speak with a number of them between
August 2017 and February 2019. McKnight also included two juror affidavits describing
the alleged jury misconduct, one was executed on January 12, 2018 and the other on
February 20, 2019. McKnight’s motion for leave to file a motion for new trial was filed on
April 1, 2019. These efforts began 15 years after the verdict was rendered.
{¶16} Also problematic is McKnight’s representation that he sought to interview
the jury in “challenges to his conviction and sentence.” The jury verdict was rendered on
October 14, 2002 and triggered the 14-day period. The trial court did not issue its
sentence until November 1, 2002. Therefore, if McKnight failed to make any effort to
interview the jury until after the November 1, 2002 sentencing order, his efforts to discover
any misconduct were undertaken after the 14-day period lapsed on October 28, 2002.
{¶17} The state opposed the motion for leave and argued McKnight failed to
exercise reasonable diligence to discover the alleged jury misconduct. The state
Vinton App. No. 20CA721 9
submitted excerpts from the October 14, 2002 trial transcript that showed that after the
trial court read the jury verdict in open court, it dismissed the jury with the following
instruction:
As I indicated earlier, you may discuss this case with anyone after you are
released from jury service here today, but also as I indicated to you earlier,
you don’t have to. You don’t have to discuss it with anyone.
So again, you may discuss the case with anyone, but you are not required
to do so. Whether you discuss the case with counsel or anyone else after
you are discharged is a matter of your own personal choice.
Thus, it would appear from the record that, at least immediately after the jury was
discharged, trial counsel was free to interview the jury about any type of misconduct.
{¶18} The state also submitted an affidavit executed on December 18, 2003 by
one of McKnight’s attorneys who testified that she had interviewed two jurors in December
2003 and discussed jury deliberations with them. The state argued that questions about
jury misconduct could have been investigated immediately after the jury verdict in 2002,
or alternatively, at least as early as 2003.
{¶19} The trial court denied McKnight’s motion for leave. However, the trial court
erred as a matter of law and applied an incorrect legal test. It did not review McKnight’s
efforts during the 14-day period after the verdict was rendered to assess whether
McKnight exercised reasonable diligence to discover any jury misconduct. It did not
determine whether McKnight had shown by clear and convincing evidence that he had
no knowledge of the jury misconduct and could not have learned of it in the exercise of
reasonable diligence within 14 days of the jury verdict. Instead, the trial court asked, “Was
McKnight unavoidably prevented from obtaining juror affidavits prior to the ‘Pena’
decision? Absolutely not.” Decision, p. 2. The jury verdict was rendered on October 14,
Vinton App. No. 20CA721 10
2002. This triggered the 14-day time period for filing a motion for new trial, not the Pena-
Rodriguez, supra, decision. Pena-Rodriguez was decided in 2017 and, as McKnight has
argued on appeal, it has no relevance to the legal analysis of a motion for leave to file a
motion for new trial. For this reason alone, we sustain McKnight’s assignment of error
and remand the case to the trial court for the purposes of holding an evidentiary hearing
on the matter.
{¶20} Because there was no focus on the efforts McKnight’s attorney took to
interview the jury between October 14, 2002 and October 28, 2002, and McKnight’s
motion for leave describes efforts that appear were taken after November 1, 2002, the
record before us is insufficient to determine whether leave should be granted or denied.
The trial court should hold an evidentiary hearing on the motion for leave to determine
whether any effort was undertaken, including, but not limited to: (1) what efforts
McKnight’s attorney took to interview the jury immediately after the verdict was rendered
on October 14, 2002 and during the 14-day period following it; (2) whether during this 14-
day period, a court order barred juror interviews; (3) if McKnight was precluded by court
order from interviewing the jury during the fourteen14-day period, when were those orders
lifted; and (4) did McKnight exercise reasonable diligence after any court orders were
lifted to interview the jury.
{¶21} McKnight argues that Evid.R. 606(B) prevented him from discovering jury
misconduct. However, we reject this argument. Evid.R. 606(B) does not bar juror
interviews and it did not prevent him from discovering jury misconduct. Instead, it
establishes what evidence can be used to show alleged jury misconduct and provides:
(B) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the
validity of a verdict or indictment, a juror may not testify as to any matter or
Vinton App. No. 20CA721 11
statement occurring during the course of the jury's deliberations or to the
effect of anything upon that or any other juror's mind or emotions as
influencing the juror to assent to or dissent from the verdict or indictment or
concerning the juror's 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. A juror's affidavit or evidence of any statement by the
juror concerning a matter about which the juror would be precluded from
testifying will not be received for these purposes.
{¶22} McKnight’s argument that he was prevented by Evid.R. 606(B) from
investigating jury misconduct misconstrues the rule and “puts the cart before the horse.”
He must first interview the jury and ask questions about potential juror misconduct, (i.e.,
outside influences, tampering, attempted threats or bribes, or any other improper conduct)
before he can determine whether there was any juror misconduct and the nature of it.
Only after interviewing the jury could he learn the type of jury misconduct that occurred.
A defendant who is not unavoidably prevented from discovering the misconduct would
not be entitled to leave to file a motion for new trial based on jury misconduct regardless
of the type of jury misconduct involved. Evid.R. 606(B) would be irrelevant because a
defendant would not be entitled to file a motion for a new trial under Crim.R. 33(A)(2) for
any type of jury misconduct. The lack of reasonable diligence – not Evid.R. 606(B) –would
bar any motion for a new trial under Crim.R. 33(A)(2). See State v. Schiebel, 55 Ohio
St.3d 71, 564 N.E.2d 54 (1990).
{¶23} The trial court’s preoccupation with the Pena-Rodriguez decision and
whether it had retroactive application here shows that the trial court conflates two distinct
issues. The trial court's finding goes to the merits of McKnight's underlying motion for a
Vinton App. No. 20CA721 12
new trial rather than the threshold issue of whether he should be granted leave to file a
motion for a new trial (i.e., whether he was unavoidably prevented from discovering the
evidence upon which he relies). The trial court can and should evaluate McKnight’s
motion for leave without considering Pena-Rodriguez; Crim.R. 33 and Schiebel, supra,
provide the proper analytical framework.3
{¶24} Last, analyzing a motion for leave to file a motion for new trial is a two-step
process. If McKnight can show that he was unavoidably prevented from filing his motion
for new trial within the 14-day time period following the verdict, then next he must show
that the motion for leave was filed within a reasonable time after the basis for it was
discovered. “If a significant delay occurs, the trial court must ascertain whether the delay
was reasonable under the circumstances or whether the movant adequately explained
why the delay occurred.” State v. Hill, 8th Dist. Cuyahoga No. 108250, 2020-Ohio-102, ¶
17; State v. Gavin, 2018-Ohio-536, 105 N.E.3d 373, ¶ 17-18 (4th Dist.) (where defendant
was aware of the grounds for new trial in summer of 2015, obtained affidavit in October
2015, but did not file motion for leave for new trial until May 2017 and he failed to proffer
any reason justifying delay, his motion was not filed within a reasonable time after
discovering the grounds). Here, the trial court jumped to step two without a proper legal
analysis of step one. And, instead of reviewing (1) when the alleged jury misconduct was
discovered, (2) comparing it with the timing of the motion for leave, and (3) determining
whether McKnight adequately explained why the delay occurred, the trial court focused
on the procedural posture of McKnight’s federal habeas case. It found, “McKnight initially
3 We take no position on the applicability of Pena-Rodriguez to McKnight’s case, nor do we assess the
credibility of the supporting affidavits. These are matters that concern the underlying motion for a new trial
and are not before this Court.
Vinton App. No. 20CA721 13
bypassed this Court instead bringing his claim in federal court . . . returning to this Court
a year after his claim was presented in federal court. This Court finds this delay was
unreasonable.” Again, this was not the proper manner or focus of the inquiry.
{¶25} We noted at the outset that an appellate court reviews a trial court's denial
of a motion for leave to file a motion for new trial under an abuse-of-discretion standard.
But when the trial court's order contains an error of law in misconstruing or misapplying
the law, then the appellate court reviews the matter de novo. E.g., State v. Wright, 2017-
Ohio-9041, 101 N.E.3d 496, ¶ 25. Because the trial court erred as a matter of law in
applying the wrong legal analysis to McKnight’s motion for leave to file motion for new
trial, we sustain his sole assignment of error, vacate the trial court’s judgment, and
remand for an evidentiary hearing on the motion for leave to file a motion for new trial in
accordance with this judgment.
IV. Conclusion
{¶26} We sustain McKnight’s assignment of error, reverse the judgment of the trial
court, and remand for further proceedings.
JUDGMENT REVERSED, CAUSE REMANDED.
Abele, J., dissenting
{¶27} I respectfully dissent. The principal opinion reverses the trial court’s
judgment that overruled appellant’s motion for leave to file a new trial motion for two
reasons (1) the trial court did not consider what efforts, if any, appellant undertook to
uncover evidence during the 14-day period that followed the 2002 jury verdict, and (2) the
trial court did not correctly review whether appellant filed his motion within a reasonable
Vinton App. No. 20CA721 14
time after he obtained juror affidavits.
{¶28} However, after my review of the trial court proceedings, I believe (1) the
parties identified and focused their arguments on the correct legal standard, and (2) the
trial court reviewed the arguments that the parties actually presented, then applied the
correct legal standard when it overruled appellant’s motion.
{¶29} Thus, I believe this court should affirm trial court’s judgment.
Pena-Rodriguez
{¶30} The case sub judice involves appellant’s 2002 trial for murder. Years after
appellant’s convictions, two jurors recalled one juror making racist comments about the
appellant during deliberations.
{¶31} Recently, the United States Supreme Court considered the issue of juror
racial animus. In Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017), the court created
an exception to rules that prohibit inquiry into statements made during jury deliberations
(the no-impeachment rule), and held that courts may now consider a juror’s “clear
statement that indicates he or she relied on racial stereotypes or animus to convict a
criminal defendant.” Pena-Rodriguez, 137 S.Ct. at 869.
{¶32} In Pena-Rodriguez, a jury found the defendant guilty of a sex offense. After
the trial, two jurors provided affidavits and stated that juror H.C. displayed a racist attitude
during deliberations. H.C. indicated that, in his “experience as an ex-law enforcement
officer, Mexican men had a bravado that caused them to believe they could do whatever
they wanted with women,” and this defendant “ ‘did it because he’s Mexican and Mexican
men take whatever they want’” and “ ‘nine times out of ten Mexican men were guilty of
being aggressive toward women and young girls.’ ” Id., quoting App. at 110. H.C. also
Vinton App. No. 20CA721 15
questioned an alibi witness’ credibility because he is “ ‘an illegal.’ ” Id., quoting App. at
110. The defendant requested a new trial and, although the court acknowledged
“apparent bias,” the court concluded that Colorado’s no-impeachment rule (Rule 606(b))
protects juror statements made during deliberations.
{¶33} After the Colorado Supreme Court rejected the defendant’s appeal, the
United States Supreme Court “granted certiorari to decide whether there is a
constitutional exception to the no-impeachment rule for instances of racial bias.” Id. at
863. The Supreme Court held that, contrary to state no-impeachment rules, courts can
consider jury racial bias evidence to evaluate whether a defendant has been deprived of
the fundamental right to an impartial jury:
The jury is to be “a criminal defendant’s fundamental ‘protection of
life and liberty against race or color prejudice.’” McCleskey v. Kemp, 481
U.S. 279, 310, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) (quoting Strauder,
supra, at 309). Permitting racial prejudice in the jury system damages “both
the fact and the perception” of the jury’s role as “a vital check against the
wrongful exercise of power by the State.” Powehow rs v. Ohio, 499 U.S.
400, 411, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); cf. Aldridge v. United
States, 283 U.S. 308, 315, 51 S.Ct. 470, 75 L.Ed. 1054 (1931); Buck v.
Davis, ante, at 22.
Id. at 868. Thus, when a juror relies on racial stereotypes or animus to convict a
defendant, courts may decline to apply no-impeachment rules and consider jury testimony
to overturn verdicts. See, also, State v. Ford, 158 Ohio St.3d 139, ¶ 300.
{¶34} The Pena-Rodriguez court cautioned, however, that “[n]ot every offhand
comment indicating racial bias or hostility will justify setting aside the no-impeachment
bar to allow further judicial inquiry.” Pena-Rodriguez, 137 S.Ct. at 869. Instead, “there
must be a showing that one or more jurors made statements exhibiting overt racial bias
that cast serious doubt on the fairness and impartiality of the jury’s deliberations and
Vinton App. No. 20CA721 16
resulting verdict.” Id. Moreover, “the statement must tend to show that racial animus was
a significant motivating factor in a juror’s vote to convict.” Id. The court declined,
however, to define any “practical mechanics of acquiring and presenting” racial bias
evidence sufficient to cast serious doubt on the fairness and impartiality of the verdict. Id.Rather, “state rules of professional ethics and local court rules” should help shape and
guide the procedure. Id. Additionally, the court noted that, although jurors sometimes
approach counsel or the court shortly after a verdict, the court did not suggest that racial
bias concerns must be brought to a court’s attention within a short time after the verdict.
Id. at 870.
{¶35} Recent cases have addressed the Pena-Rodriguez exception. In United
States v. Smith, 106 Fed. R. Evid. Serv. 246, 2018 WL 1924454 (D.Minn.Apr. 24, 2018),
the jury foreperson emailed the court four years after conviction and indicated Pena-
Rodriguez “could pertain to [the defendant’s] case” because “[a] racial remark was made
during our deliberations.” Id. at *4. After the court shared the juror’s comment “You know
he’s just a banger from the hood, so he’s got to be guilty,” the defendant filed a new trial
motion. The court first determined that the late discovery constituted excusable neglect
for the failure to file the motion within 14 days of his conviction, as Fed.R. Crim.P. 33
requires. See Fed.R. Crim.P. 45(b)(1)(B) and United States v. Boesen, 599 F.3d 874,
879 (8th Cir. 2010). As for the merits, because little difference exists between “banger
from the hood” and he’s guilty “ ‘because he’s Mexican,’ ” the court determined that “racial
animus was a significant motivating factor in the juror’s vote to convict.” Id. at *10 and *9,
quoting Pena–Rodriguez, 137 S. Ct. at 861. The court thus concluded that the defendant
did not have a fair and impartial jury and should have a new trial. Id. at *14.
Vinton App. No. 20CA721 17
{¶36} In another case, People v. Thompson, 2018 Il. App (3d) 160604-U (Ill. App.
Ct. 2018), five days after trial a juror related that during deliberations (1) two jurors stated
that the defendant had an arrest record, but no such evidence had been presented at
trial, and (2) another juror, when he referred to the defendant’s videotaped questioning,
stated that “ ‘these guys are probably all high on drugs.’ ” Id. at ¶ 12. Although the trial
court denied the defendant’s request for a hearing to address racial animus allegations,
the appellate court determined that sufficient evidence existed for an evidentiary hearing
because “some form of improper extraneous information” infiltrated the jury room. Id. at
¶ 25.
Appellant’s Motion and Response
{¶37} Appellant’s motion focused on the Ohio Crim.R. 33(B) standard for leave to
file a new trial motion outside the 14-day period after trial. In general, a defendant may
file a new trial motion outside of the prescribed time period if clear and convincing
evidence shows that the defendant was unavoidably prevented from filing a new trial
motion.
{¶38} Appellant argued that a party is unavoidably prevented from filing a timely
new trial motion if the party (1) had no knowledge of the existence of the ground to support
the motion, and (2) in the exercise of reasonable diligence could not have learned of the
existence of that ground within the pertinent time window. In particular, appellant claimed
that he could not obtain juror affidavits until Pena-Rodriguez “opened the door for
[appellant] to seek out evidence of juror misconduct based on racial animus and bias in
jury deliberations.” Appellant thus argued that until Pena-Rodriguez, Evid.R. 606(B)
prevented a defendant from complying with the Crim.R. 33(C) requirement to support a
Vinton App. No. 20CA721 18
new trial motion based upon juror misconduct with juror affidavits. Now, appellant
reasoned, Pena-Rodriguez allows him “to seek out–and obtain–clear and convincing
evidence of juror misconduct that tainted his trial and sentencing,” because, until Pena-
Rodriguez, he had no avenue to seek “the required evidence to demonstrate juror
misconduct.”
{¶39} Appellant’s motion outlines appellant’s theory:
[Appellant] had grave concerns about the role played by racial
animus in his conviction and death sentence, but was unable to investigate
those claims because of the prohibition on the use of testimony from jurors
about deliberations, which is set forth in Rule 606(b) of both the Ohio and
Federal Rules of Evidence. In [appellant]’s challenges to his conviction and
sentence in the state and federal courts, he repeatedly sought permission
to inquire of the jurors in his case. Those requests were denied because
the courts consistently held that any testimonial evidence of juror
misconduct was inadmissible under Rule 606(b).
In 2017, however, that rule was altered by the Supreme Court’s
decision in Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017).
Acknowledging that racial bias is a “familiar and recurring evil that, if left
unaddressed, would risk systemic injury to the administration of justice,” the
Supreme Court held that “where a juror makes a clear statement that
indicates he or she relied on racial stereotypes or animus to convict a
criminal defendant, the Sixth Amendment requires that the no-impeachment
rule give way in order to permit the trial court to consider the evidence of
the juror’s statement and any resulting denial of the jury trial guarantee.”
Pena-Rodriguez, 137 S. Ct. At 868, 869. Pena-Rodriguez thus opened the
door for [appellant] to seek out evidence of juror misconduct based on racial
animus and bias in jury deliberations.
{¶40} In his conclusion, appellant reiterated the essence of his argument:
“[Appellant] has shown by clear and convincing evidence that he was unavoidably
prevented from speaking with the jurors in his case and from learning the facts contained
in the attached affidavits until the Supreme Court’s decision in Pena-Rodriguez.”
Appellant further pointed out that his 2010 and 2011 federal court decisions denied his
requests to depose jurors about racial bias. Moreover, appellant’s reply memorandum
Vinton App. No. 20CA721 19
asserted that “the only questions before the Court in deciding this preliminary Motion for
Leave are (i) whether [appellant] was unavoidably prevented from presenting evidence of
juror misconduct before the Supreme Court decided Pena Rodriguez and (ii) whether he
acted diligently to pursue those claims once they were available.”
{¶41} Consequently, appellant presented no evidence or argument to the trial
court about the 14-day window, but instead claimed “before Pena-Rodriguez changed the
law, [appellant] was unavoidably prevented from developing or presenting the necessary
evidence to prove his claims of racial bias.” Notably, and as I discuss infra, appellant did
not argue that he could not have questioned the jurors after the verdict, but rather that he
could not obtain affidavits until Pena-Rodriguez opened the door to this line of inquiry.
{¶42} The state responded that appellant (1) presented no evidence to show what
efforts he undertook within 14 days after the 2002 verdict, and (2) the affidavits did not
address whether appellant had been unavoidably prevented from speaking with the jurors
in a more timely fashion. The memorandum contra argued that the first question should
be whether appellant established, by clear and convincing evidence, that he was
unavoidably prevented from discovering the juror’s statements within the prescribed time
period. The state argued that, although appellant relied on Pena-Rodriguez to show why
he could not file his motion within 14 days of the verdict, Pena-Rodriguez does not
constitute clear and convincing “evidence” that appellant was unavoidably prevented from
timely filing his motion.
{¶43} The state also pointed out that, because appellant’s legal team interviewed
two jurors in December 2003, nothing prevented appellant from learning about the racist
comments. Moreover, “[r]egardless of the Pena-Rodriguez decision, [appellant] had been
Vinton App. No. 20CA721 20
free to interview jurors at all times from and after October 14, 2002, which was the date
[the trial court] released the jurors from their admonition to not discuss the case.” Thus,
the state claimed, even though the aliunde rule prohibits courts from considering juror
testimony to impeach a verdict, the rule did not prevent appellant “from making
appropriate inquiries.”
Trial Court Decision
{¶44} During the trial court proceedings, appellant agreed that the court should
first determine whether appellant established he was unavoidably prevented from timely
filing his motion. In other words, the parties did, in fact, inform the court of the correct
legal standard, including the 14-day window. When the trial court overruled appellant’s
motion, the court found that appellant was not unavoidably prevented from obtaining juror
affidavits before Pena-Rodriguez:
in fact did seek out and obtain juror affidavits as shown by the affidavit of
Kathryn Sandford attached as Exhibit 1 to State’s Opposition to [appellant]’s
Motion for Leave to File A Motion For New Trial as filed March 11, 2019.
The Fifth, Sixth, and Seventh Grounds For Relief set forth in [appellant]’s
post conviction petition filed January 9, 2004, and as amended, claimed that
his jury engaged in misconduct and offered in support of his claim the
affidavit of assistant state public defender restating what two jurors told her.
Thus, the court determined that appellant “was not [u]navoidably prevented from
obtaining juror affidavits until the ‘Pena’ decision.”
{¶45} Consequently, in the case sub judice I do not agree with the principal
opinion that the trial court applied an incorrect legal standard. Instead, as I set forth
below, I believe the record shows that the trial court used the correct standard to decide
this matter in light of the arguments that the parties actually presented.
Principal Opinion and Dissent
Vinton App. No. 20CA721 21
{¶46} The principal opinion holds that the trial court should have considered
evidence and issues that appellant deliberately chose not to present and argue. Thus,
the opinion places the onus on the trial court to independently review the actions of trial
counsel after the 2002 verdict. Appellant, however, chose not to present any evidence
or argument other than Pena-Rodriguez now permits courts to consider juror testimony
to evaluate juror racial animus. Because appellant consistently argued that the aliunde
rule is the reason he did not submit juror affidavits, I find it difficult to conclude that the
trial court erred by not considering an argument appellant did not make, or consider
evidence appellant did not present.
{¶47} The principal opinion points to two sentences in the trial court’s decision to
support its conclusion that the trial court applied an incorrect legal standard: “Was
McKnight unavoidably prevented from obtaining juror affidavits prior to the ‘Pena’
decision? Absolutely not.” The principal opinion then states that the date of the jury’s
verdict, October 14, 2002, “triggered the 14-day time period for filing a motion for new
trial, not the Pena-Rodriguez, supra, decision,” and continues: “Pena-Rodriguez was
decided in 2017 and, as McKnight has argued on appeal, it has no relevance to the legal
analysis of a motion for leave to file a new trial.” The principal opinion thus concludes,
“[f]or this reason alone,” the matter must be remanded “to the trial court for the purposes
of holding an evidentiary hearing.”
{¶48} The principal opinion also provides that, because the record does not reveal
“what efforts were made to interview the jury during the 14-day period following the verdict
* * * and whether a court order barred juror interviews during that 14-day period,” this gap
requires reversal and remand. Id. at ¶ 15. Once again, however, appellant did not argue
Vinton App. No. 20CA721 22
that the trial court erred by failing to examine counsel’s conduct during the 14 days, but
instead argued that the no-impeachment rule would prevent the court from considering
juror testimony to impeach the jury’s verdict. Thus, the lack of evidence about the 14-day
window should not require a reversal of the trial court’s judgment. In fact, the trial court’s
July 3, 2019 order states that “no evidence would be submitted at the hearing” because
appellant’s counsel indicated that counsel “did not have additional information to submit”
beyond that contained in appellant’s motion and reply memorandum. Because appellant
informed the trial court that he had no evidence to present, an evidentiary hearing would
be pointless. Therefore (1) counsel made a strategic decision to raise the precise
argument that counsel did, in fact, raise, and (2) the trial court limited its review to the
issues and arguments that the parties actually presented.
{¶49} Although the principal opinion also states that the trial court was
“preoccup[ied] with the Pena-Rodriguez decision,” instead it appears that the trial court
squarely addressed (1) appellant’s argument that Pena-Rodriguez now allows him to
seek leave to file a new trial motion based upon juror misconduct, and (2) appellee’s
argument that Pena-Rodriguez should not apply retroactively to a case that became final
years ago. Thus, it is understandable why the trial court cited Pena-Rodriguez and
decided the motion based upon the precise arguments the parties actually presented.
Although the principal opinion directs the trial court to consider appellant’s motion for
leave without regard to Pena-Rodriguez, appellant did not present his arguments to the
trial court in the vacuum that the principal opinion now directs.
{¶50} Generally, appellate courts presume that trial courts correctly apply the law.
In re Watson, 47 Ohio St.3d 86, 91, 548 N.E.2d 210 (1989). Here, however, the principal
Vinton App. No. 20CA721 23
opinion appears to presume that the trial court incorrectly applied the law based upon (1)
the two aforementioned sentences in the trial court’s decision, and (2) the fact that the
trial court’s decision did not explicitly mention the 14-day window. However, in view of
the fact that both parties cited the applicable legal standard, the omission in the decision
of an explicit discussion about the 14-day window should not result in the conclusion that
the trial court failed to apply the correct legal standard. Appellant did not assert that he
could not have spoken with the jurors within the prescribed time period, nor did he present
evidence to that effect. Instead, appellant argued that until Pena-Rodriguez in 2017,
Evid.R. 606(B), in conjunction with Crim.R. 33(C), prevented him from filing a new trial
motion on the basis of juror racist animus.
{¶51} Appellate courts are also generally unwilling to conclude that a trial court
errs “ ‘by failing to consider arguments that were never presented to it.’ ” State v. Barnes,
8th Dist. Cuyahoga No. 109442, 2021-Ohio-842, 2021 WL 1054499, ¶ 43, accord In re
F.B., 9th Dist. Summit No. 28960, 2019-Ohio-1738, 2019 WL 2041407, ¶ 27 (“This Court
will not fault the trial court for failing to address a legal argument that was not raised or
for failing to consider evidence that was not presented.”) Similarly, appellate courts will
ordinarily not consider arguments that parties did not raise on appeal. Xue Juan Chen v.
Holder, 737 F.3d 1084, 1085 (7th Cir.2013); In re Columbus S. Power Co., 129 Ohio St.3d
271, 2011-Ohio-2638, 951 N.E.2d 751, ¶ 19 (“While there may be exceptions, it is not
generally the proper role of this court to develop a party’s arguments.”).
{¶52} I additionally note that appellant asserts that he “has known all along * * *
that [he] was convicted and sentenced to death because he is a Black man and not
because of the evidence at trial,” yet he presented no evidence that he attempted to speak
Vinton App. No. 20CA721 24
with jurors after the verdict to ascertain whether jurors made racist comments. See State
v. Lenoir, 2nd Dist. Montgomery No. 26080, 2015–Ohio–1045, 2015 WL 1278205, ¶ 22
(pointing out that if the defendant believed that his friend “had given false testimony, he
could have promptly contacted [his friend] and made the appropriate inquiries at any time
after his trial”). Although appellant did not claim that counsel could not have spoken to
the jury, he instead asserted that federal court decisions denied his request to depose
jurors. However, asking a court for permission to depose jurors or informally asking jurors
questions are two different concepts. Thus, I believe appellant’s contention that the
aliunde rule prevented him from obtaining juror affidavits misses the mark. The aliunde
rule, with limited exceptions, prohibits courts from considering juror testimony to impeach
a verdict. Specifically, Ohio Evid.R. 606(B) provides:
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.
{¶53} This rule prohibits a court from considering a juror’s statement unless
evidence aliunde exists; that is, evidence extraneous and independent, based upon the
firsthand knowledge of one who is not a juror. State v. Hessler, 90 Ohio St.3d 108, 123,
734 N.E.2d 1237 (2000). “The purpose of the aliunde rule is to maintain the sanctity of
the jury room and the deliberations therein, ensure the finality of jury verdicts, and protect
Vinton App. No. 20CA721 25
jurors from being harassed by defeated parties.” State v. Ford, 158 Ohio St.3d 139, 2019-
Ohio-4539, 140 N.E.3d 616, ¶ 296, cert. denied, 207 L.Ed.2d 1073, 2020 WL 3146847(June 15, 2020), citing State v. Hessler, 90 Ohio St.3d 108, 123, 734 N.E.2d 1237 (2000);
accord McDonald v. Pless, 238 U.S. 264, 269, 35 S.Ct. 783, 59 L.Ed 1300 (1915)
(inquiries into jury deliberations may occur only in “gravest and most important cases”).
{¶54} In the case sub judice, I agree with the trial court’s conclusion that appellant
had not been unavoidably prevented from timely filing his new trial motion. Contrary to
appellant’s assertion, the aliunde rule did not prevent appellant from speaking with jurors
or requesting affidavits. Although Pena-Rodriguez now permits courts to consider juror
testimony concerning racial bias exhibited during deliberations, Pena-Rodriguez did not
announce a new rule to allow defendants to interview jurors or request juror affidavits. A
difference exists between asking a court to depose jurors and informally asking jurors to
speak. Evid.R. 606(B) does not prevent parties from interviewing jurors and asking jurors
to submit affidavits, although the rule does prevent a court from considering such
evidence unless an exception applies. State v. Robb, 88 Ohio St.3d 59, 79, 723 N.E.2d
1019, 1043, 2000 WL 107149 (2000). Although Robb held that a court could not consider
a juror affidavit, it did not state that Evid.R. 606(B) prohibits a defendant from speaking to
a juror, or from an attempt to introduce an affidavit to support a new trial motion.
Therefore, while Pena-Rodriguez may have created a new exception to Evid.R. 606(B),
it did not create a new procedural mechanism to allow defendants to challenge
convictions that have long since been final. Although appellant argues that the trial court
could not consider juror affidavits concerning juror racial bias, like the defendant in Pena-
Rodriguez, appellant in the case at bar could have sought to change the law through an
Vinton App. No. 20CA721 26
appeal to the Ohio Supreme Court or the United States Supreme Court. Here, appellant’s
conviction became final in 2006, after he exhausted his direct appeals. Thus, a question
should exist as to whether appellant can invoke a newly-recognized rule to allow the trial
court to consider juror affidavits to support his new trial motion. Once again, appellant’s
motion for a new trial came 17 years after his trial and 13 years after his conviction had
become “final” when he had exhausted his direct appeal rights.
{¶55} Many courts have also recognized that a change in law will not generally
entitle a defendant to a new trial. In United States v. Shelton, 459 F.2d 1005, 1006–1007
(9th Cir.1972), the court held that a change in the legal standard to determine insanity did
not amount to “newly discovered evidence” for purposes of Fed.R. App.P. 33. See United
States v. King, 735 F.3d 1098, 1108–1109 (9th Cir.2013) (reaffirming Shelton). In another
case, a ruling regarding the warrant requirement after a defendant’s trial did not provide
the defendant with grounds to seek a new trial. State v. Parsons, 3rd Dist. Henry No. 7-
18-29, 2019-Ohio-824, 2019 WL 1109898, ¶¶ 6-8, appeal not allowed, 156 Ohio St.3d
1453, 2019-Ohio-2780, 125 N.E.3d 936. In general, a ruling issued after trial cannot form
the basis of a claim that an error of law occurred at trial. Id. at ¶ 8.
{¶56} Moreover, many questions exist whether a change to the no-impeachment
rule should permit a defendant to seek a new trial 17 years after conviction. The United
States Supreme Court has recognized the danger of new trials long after conviction,
including lost witnesses, forgotten memories, misplaced evidence, and deteriorated
physical evidence. See Weaver v. Massachusetts, — U.S. —, 137 S.Ct. 1899, 1912, 198
L.Ed.2d 420 (2017). Applying a new rule of law to a new trial motion after a conviction
became final years ago could result in “[m]any final convictions * * * be[ing] vacated, with
Vinton App. No. 20CA721 27
retrial ‘hampered by problems of lost evidence, faulty memory, and missing witnesses.’”
Allen v. Hardy, 478 U.S. 255, 260–61, 106 S.Ct. 2878, 2881, 92 L.Ed.2d 199 (1986),
quoting Solem v. Stumes, 465 U.S. 638, 650, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579(1984. Thus, unless an exception applies, new judicial rulings and “new constitutional
rules of criminal procedure will not be applicable to those cases which have become final
before the new rules [or ruling] are announced.” Teague v. Lane, 489 U.S. 288, 310, 109
S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989); Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-
6592, 819 N.E.2d 687. A case becomes “final” when “ ‘the judgment of conviction was
rendered, the availability of appeal exhausted, and the time for petition for certiorari ha[s]
elapsed.’ ” Teague at 295, quoting Linkletter v. Walker, 381 U.S. 618, 622, 85 S.Ct. 1731,
1734, 14 L.Ed.2d 601 (1965); see also Beard v. Banks, 542 U.S. 406, 411, 124 S.Ct.
2504, 2510, 159 L.Ed.2d 494 (2004), quoting Caspari v. Bohlen, 510 U.S. 383, 390, 114
S.Ct. 948, 127 L.Ed.2d 236 (1994) (“[s]tate convictions are final for purposes of
retroactivity analysis when direct appeal has been exhausted and time for filing petition
for a writ of certiorari has elapsed or been denied); State v. Ketterer, 140 Ohio St.3d 400,
2014-Ohio-3973, 18 N.E.3d 1199, ¶ 13 (conviction final when accused exhausted all
appellate remedies).
{¶57} However, the United States Supreme Court has also emphasized that
newly-recognized “watershed rules” of criminal procedure that “ ‘implicat[e] the
fundamental fairness [and accuracy] of the trial’ ” may indeed apply to cases that have
become final. Ramos v. Louisiana, — U.S. —, 140 S.Ct. 1390, 1407, 206 L.Ed.2d 583(2020), quoting Teague v. Lane, 489 U.S. 288, 312, 109 S.Ct. 1060, 1077, 103 L.Ed.2d
334 (1989). “But, * * * [this] test is a demanding one, so much so that th[e Supreme]
Vinton App. No. 20CA721 28
Court has yet to announce a new rule of criminal procedure capable of meeting it.” Id.Ramos explained that the “test is demanding by design, expressly calibrated to address
the reliance interests States have in the finality of their criminal judgments.” Id. See
generally Rouse v. United States, U.S. Dist. Court, South Dakota, Southern District No.
CIV 06-4008, 2020 WL 1287986, *10 (Mar. 18, 2020) (“Pena-Rodriguez does not qualify
as extraordinary circumstance that entitles Petitioners to new trial or to interview jurors”).
{¶58} I also acknowledge that certain errors are so severe that the error must be
deemed to be a structural error, and require reversal due to fundamental unfairness and
the undermining of the requirements of a fair judicial process. Indeed, racial bias
exhibited during jury deliberations may constitute structural error. See generally Warger
v. Shauers, 574 U.S. 40, 135 S. Ct. 521, 529 n.3, 190 L. Ed. 2d 422 (2014), quoting
McCleskey v. Kemp, 481 U.S. 279, 310, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), quoting
Strauder v. West Virginia, 100 U.S. 303, 309, 25 L. Ed. 664 (1880) (a fair trial before an
impartial jury “ ‘is a criminal defendant’s fundamental “protection of life and liberty against
race or color prejudice” ’ ”). However, most structural error cases are considered on direct
appeal, not through a new trial motion years after conviction. See Weaver, 137 S.Ct. at
1911-1912 (structural error cases all reversed upon direct appeal). Thus, a question
exists whether the structural error doctrine could apply under the circumstances present
in the case sub judice.
{¶59} Once again, in the case at bar appellant did not (1) assert that counsel
lacked the ability to speak with jurors after the verdict, or (2) cite any rule or procedure
that prevented counsel from speaking with the jurors after the verdict. Even if courts could
not consider juror affidavits that attested to racial bias during deliberations, appellant
Vinton App. No. 20CA721 29
nevertheless had the means to speak with jurors, and, like the defendant in Pena-
Rodriguez, the ability to convince the Ohio or the United States Supreme Court to change
the law to create an exception to the no-impeachment rule. Appellant, however, did not
proceed in this manner.
Conclusion
{¶60} In the case sub judice, appellant had the burden to produce clear and
convincing evidence to show he was unavoidably prevented from filing a new trial motion
within the prescribed time period. Appellant, however, did not establish that he could not
discover a juror’s racially charged statements within 14 days of the verdict. Instead,
appellant argued that juror affidavits would have been deemed inadmissible until Pena
Rodriguez in 2017. In view of the fact that the trial court focused on the actual arguments
that the parties raised, I find nothing in the record to overcome the presumption that the
trial court correctly applied the law and properly overruled appellant’s motion without
holding an evidentiary hearing. Thus, I believe that this court should affirm the trial court’s
judgment. A reversal of this judgment will simply result in further delay in considering the
merits of appellant’s claim.
{¶61} My dissent, however, is certainly not intended to minimize the seriousness
of the allegations raised in the jurors’ affidavits, or be construed as indifference or
insensitivity to the plight of any wrongfully convicted defendant. Any form of racial bias in
the administration of justice is abhorrent and intolerable and has no place in our judicial
system. No person should be convicted of a crime or suffer a sentence because of that
person’s race. I also recognize that in our country some individuals have been wrongly
convicted and incarcerated. For example, The Innocence Project has secured
Vinton App. No. 20CA721 30
approximately 200 DNA-based exonerations since its 1992 founding. Obviously, our
common goal should be to ensure that all criminal convictions are based upon proper,
admissible evidence adduced during fair and impartial trials, not based on a defendant’s
race, age, ethnic heritage, religious affiliation or any factor unrelated to actual evidence
of criminal conduct.
{¶62} I agree with the Pena-Rodriguez court that our “Nation must continue to
make strides to overcome race-based discrimination” and “blatant racial prejudice is
antithetical to the functioning of the jury system and must be confronted.” Pena-
Rodriguez, 137 S.Ct. at 871. The notion that race should play any role in a jury’s decision
contravenes all social, ethical, and legal mores and is improper and unacceptable.
However, at this juncture I do not believe that Ohio law permits appellant to invoke this
newly-recognized exception to the no-impeachment rule to seek a new trial 17 years after
conviction, and 13 years after his conviction became “final.” Consequently, I do not
believe the trial court’s denial of appellant’s motion constitutes an abuse of discretion.
{¶63} The Supreme Court also emphasized in Pena-Rodriguez that not every
comment that may indicate hostility or bias will justify disregarding the no-impeachment
bar, but that racial animus must have been a significant motivating factor in a conviction.
I note that the paucity of evidence in Pena-Rodriguez stands in stark contrast with the
substantial amount of evidence adduced in the case at bar. In Pena-Rodriguez the
evidence consisted solely of the victim’s testimony, but in the case at bar a raft of physical
evidence connected appellant to the murder victims. Moreover, the two jurors who
provided affidavits concerning another juror’s racially charged comments did not state in
their affidavits that their vote for guilt stemmed from their own racial animus, or from
Vinton App. No. 20CA721 31
another juror’s comments, pressure, coercion or duress. Once again, as Pena Rodriguez
provides, not every comment indicating racial bias or hostility will justify setting aside the
no-impeachment bar to allow further inquiry. Pena Rodriguez, 137 S.Ct. At 869.
{¶64} Therefore, in view of the foregoing, I believe that this court should affirm the
trial court’s judgment. I recognize that Pena-Rodriguez has now created a mechanism to
open the door to the jury room to determine whether juror racial bias cast doubt on a jury’s
fairness and impartiality. However, because intermediate appellate courts must follow
Ohio Supreme Court precedent, this Court could not simply disregard long standing rules
and Ohio Supreme Court decisions. The Supreme Court declined, however, to define the
mechanics involved in this process, and deferred to state rules and local rules to shape
the procedure and balance the competing interest of finality of judgments. Thus, I would
have encouraged the Ohio Supreme Court to conduct further review and, in light of Pena-
Rodriguez, develop a framework and appropriate standard for Ohio courts to use to
evaluate cases in which racial animus may have played a role.
{¶65} Accordingly, based on the foregoing reasons, because I believe this court
should affirm the trial court’s judgment, I respectfully dissent.
Vinton App. No. 20CA721 32
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED, CAUSE REMANDED and that
appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Vinton
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed 60 days upon the bail previously posted.
The purpose of a continued stay is to allow appellant to file with the Supreme Court of
Ohio an application for a stay during the pendency of proceedings in that court. If a stay
is continued by this entry, it will terminate at the earlier of the expiration of the 60-day
period, or the failure of the appellant to file a notice of appeal with the Supreme Court of
Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Wilkin, J.: Concurs in Judgment and Opinion.
Abele, J.: Dissents with Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.