State v. King

• Decision Date: 22 June 1983
• Docket Number: No. C-820648,C-820648
• Citation: 10 Ohio App.3d 161,460 N.E.2d 1383,10 OBR 214
• Parties: , 10 O.B.R. 214 The STATE of Ohio, Appellee, v. KING, Appellant. *
• Court: Ohio Court of Appeals

Page 161

10 Ohio App.3d 161

460 N.E.2d 1383, 10 O.B.R. 214

The STATE of Ohio, Appellee, v. KING, Appellant. ^*

No. C-820648.

Court of Appeals of Ohio, First District, Hamilton County.

June 22, 1983.

Syllabus by the Court

1. Any communication or contact outside the courtroom or jury room between a juror and another person about the matter at trial, particularly if connected with one of the parties to the litigation, and any independent inquiry or experiment by a juror about the evidence or the law, violate the juror's duty to limit his considerations to the evidence, arguments and law presented in open court and constitute juror misconduct, a violation of both the Fourteenth Amendment and Section 10, Article I of the Ohio Constitution.

2. All juror misconduct is presumed to be prejudicial, and the party prevailing at trial has the burden to demonstrate on appeal that the misconduct was not prejudicial under the circumstances.

3. A confession is inadmissible if the corpus delicti has not been established. All that is needed, however, is "some evidence" (which need not be either equal to proof beyond a reasonable doubt or enough to make a prima facie case) tending to show two elements of the body or substance of the crime: (1) the act, and (2) the criminal agency of the act.

Simon L. Leis, Jr., Pros. Atty. and William E. Breyer, Asst. Pros. Atty., for appellee.

H. Fred Hoefle, Cincinnati, for appellant.

BLACK, Presiding Judge.

Defendant-appellant, Charles Browne King ("defendant"), was convicted in a jury trial of purposely causing the death of Delonise Stamps while committing robbery, an aggravated murder in violation of R.C. 2903.01(B). His four assignments of error raise three claims: that his motion for a mistrial on grounds of juror misconduct was erroneously overruled; that his confession was submitted in evidence before the corpus delicti had been established; and that the judgment is not supported by sufficient evidence. ¹ We are not persuaded that any of the claims has merit.

At the initiative of a neighbor, police forcibly entered the apartment of Mrs. Delonise Stamps, who was seventy-seven years old, because nothing had been heard from her for an unusual length of time. Her body was found on the floor, partially clothed and partially on its back. Police assumed that she died of natural causes, covered the body and had it removed to the morgue. As the chief deputy coroner was about to begin a post-mortem examination the next day, he discovered that Stamps' hands were tied behind her back and that her face, arms and torso were bruised. A homicide investigation was immediately begun.

Police learned that defendant had been seen carrying a bag of groceries for Stamps as she entered her apartment, by a witness who knew both of them, and that later, another witness had seen a man wearing the same sort of dark clothing worn by defendant leave the Stamps apartment, although this second witness could not identify this man as the defendant. When the police found defendant, he was brought to homicide headquarters and duly advised of his Miranda rights. He made several statements. The first was that all he did was carry Stamps' groceries to her apartment and then leave. The second was that she said she would give him $5 for carrying her groceries but then refused to do so; he threw her down on the floor, her body or head hitting a dresser; he tied her hands with an apron and forcibly removed $5 from her underclothing, cutting her girdle from her body with a knife. The second version was later recorded on tape. Defense counsel objected to having the jury hear the tape because the corpus delicti had not been established, but the objection was overruled and the tape was played for the jury.

The chief deputy coroner testified that the cause of death was asphyxiation resulting from a heavy weight compressing the decedent's back or chest while she was on the floor. This weight could have been a person kneeling or sitting on her upper torso, and it would have caused death in a minute or two. The body had multiple fresh marks or abrasions, indicating blows to the head, arms, torso and legs from various directions. Some marks on her arm indicated the decedent tried to defend herself against an attack.

The defense was alibi, several witnesses testifying that defendant was with them during the period when Stamps was killed. Defendant denied all of his prior statements, asserting that he gave those versions in exchange for being let alone. He testified that the entire taped story was rehearsed and supplied by the police.

The jury was instructed on aggravated murder in the commission of a robbery and on involuntary manslaughter (a death proximately resulting from the commission of robbery). The court's instructions were in writing, and copies were sent to the jury room.

Jury deliberations began late on a Friday afternoon and continued for about one hour and forty-five minutes. The jury was released for the weekend after they were clearly instructed, as they had been told before, not to discuss the case with anyone under any circumstances. On Monday morning, the bailiff answered a telephone call from Eli Namanworth, an attorney not associated in any way with the trial. According to the bailiff, Namanworth said that he had been called on the phone over the weekend by one of the jurors, Alden E. Yelmgren, a friend, and asked whether if there was intent to rob a person and a death followed, the offense would be aggravated murder, murder or some lesser included offense. Namanworth asked Yelmgren why he was interested in "a question of that sort"; upon discovering that Yelmgren was on a jury then deliberating on a homicide case, Namanworth immediately terminated the conversation. ² He reported the incident to the bailiff on Monday morning.

Namanworth was not called to court and did not testify in person; Yelmgren did, admitting that he made the call because he was confused by the relationship between a purposeful murder and an involuntary manslaughter. The source and nature of his confusion is not entirely clear, but he may have been misled by the word "involuntary" used in connection with a robbery-related death when the robbery was "voluntary." He independently consulted an elementary book on law used by his son in an engineering course at the University of Cincinnati. Receiving no satisfaction from that, he called Namanworth. Yelmgren testified that Namanworth told him nothing about the law and promptly terminated the phone conversation. In answer to further questions, Yelmgren stated that he would put out of his mind anything Namanworth told him and follow the law as stated by the court, and that nothing in his weekend experience outside the jury room had in any way influenced his opinion in the case. It developed that Yelmgren was foreman of the jury. ³

A voir dire examination of the entire jury was then conducted by the court, during which no response was made by any juror to questions addressed in general to the jury as a body about any attempt of any third party to contact or talk to any of them about the case, any reading by them or anyone else about the law, any expression of opinion about the case or the law, or any discussion about the law that morning as they gathered to get ready for further deliberations. No juror responded when the court asked whether any one of them felt that he or she could not remain a fair and impartial juror. Defense counsel moved for a mistrial, and the first assignment is that the court erred in overruling it.

The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that a person accused of a state criminal violation shall be tried before a panel of fair and impartial jurors. Duncan v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. Mr. Justice Holmes said in Patterson v. Colorado, ex rel. Attorney General (1907), 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879:

"The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print."

Ohio prohibits outside influences, if they are demonstrated to be prejudicial. State v. Kehn (1977), 50 Ohio St.2d 11, 361 N.E.2d 1330 , certiorari denied (1977), 434 U.S. 858, 98 S.Ct. 180, 54 L.Ed.2d 130; Armleder v. Lieberman (1877), 33 Ohio St. 77; Farrer v. State (1853), 2 Ohio St. 54. Any communication or contact outside the courtroom or jury room about the matter at trial between a juror and another person, particularly if connected with one of the parties to the litigation, and any independent inquiry or experiment by a juror about the evidence or the law, violate the juror's duty to limit his considerations to the evidence, arguments and law presented in open court. Any such activity is juror misconduct, a constitutional violation whether viewed under the Fourteenth Amendment to the United States Constitution or Section 10, Article I of the Ohio Constitution.

Not every instance of juror misconduct requires reversal. The misconduct must be prejudicial. While Ohio has not spoken directly to the question of the burden of proof to demonstrate prejudice once the existence of juror misconduct has been established, we believe the better rule is that all juror misconduct is presumed to be prejudicial, and the prevailing party (the state, in our case) has the burden to demonstrate that the misconduct was not prejudicial under the circumstances. This procedure is set forth in Remmer v. United States (1954), 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (the conviction was of willful evasion of federal income taxes) as follows:

"In a criminal case, any private communication, contact, or tampering,...