State v. Schiebel

• Decision Date: 26 October 1990
• Docket Number: Nos. 89-583 and 90-85,s. 89-583 and 90-85
• Citation: 564 N.E.2d 54,55 Ohio St.3d 71
• Parties: The STATE of Ohio, Appellant and Cross-Appellee, v. SCHIEBEL, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 71

55 Ohio St.3d 71

564 N.E.2d 54

The STATE of Ohio, Appellant and Cross-Appellee, v. SCHIEBEL, Appellee and Cross-Appellant.

Nos. 89-583 and 90-85.

Supreme Court of Ohio.

Submitted June 6, 1990.

Decided Oct. 26, 1990.

Syllabus by the Court

1. 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.

2. Where an attorney is told by a juror about another juror's possible misconduct, the attorney's testimony is incompetent and may not be received for the purpose of impeaching the verdict or for laying a foundation of evidence aliunde.

3. Where a trial court receives and evaluates conflicting evidence regarding the state of the record, the decision to correct or supplement the record pursuant to App.R. 9(E) rests upon the court's ability to weigh the evidence. Where it is supported by competent, reliable evidence, such ruling will not be reversed by a reviewing court.

David J. Schiebel, defendant-appellee and cross-appellant, ¹ was convicted on March 2, 1987 in the Hamilton County Court of Common Pleas on three counts of securities fraud in violation of R.C. 1707.44(B)(4), 1707.44(G), and former 1708.05 as now codified in R.C. 1707.44(J). Of the eighty-eight total counts in the amended indictment, counts eighty-four and eighty-eight were dismissed by the trial court, Schiebel was found guilty of counts eighty-three, eighty-five and eighty-six, and he was found not guilty on all other counts. ² The facts relevant to defendant's conviction and this appeal are as follows.

Prior to trial, Schiebel moved to have the indictment against him dismissed, asserting that the emergency legislation, Am.S.B. No. 147, that provided for the appointment of a special prosecutor was constitutionally invalid because it constituted legislative encroachment upon an inherently executive function. He argued that this violated the separation of powers doctrine. Schiebel also moved for a separate trial, for a change of venue, and for a severing of the securities charges in counts eighty-three to eighty-seven from the banking charges in counts one through eighty-two. The trial court overruled all motions.

Defendant also moved for automatic exclusion of any potential juror who had been a depositor of Home State Savings Bank ("Home State") between May 1983 and June 1985, or who was related up to the fifth degree of consanguinity with any person who was a depositor in Home State. In addition, defendant requested that persons who either had deposits or were related to persons with deposits in other institutions insured by the Ohio Deposit Guarantee Fund ("ODGF") be excluded from the jury panel. The trial court agreed that any depositor or debenture holder of Home State would be excused for cause from the jury, as such persons would be considered victims of the Home State collapse. The court overruled the defendant's request to exclude for cause depositors of other ODGF-insured institutions, finding that they were not victims of the Home State collapse.

Voir dire began on Monday, November 17, 1986. Seventy prospective jurors were interviewed in lengthy and thorough examinations by the trial court, attorneys for the state or attorneys for each defendant.

Opening statements were made on December 9, 1986, and the trial concluded on February 20, 1987. The jury retired to deliberate late on Friday afternoon, February 20, and, after deliberating for nine days, returned guilty verdicts on the counts referred to on March 2, 1987. Defendant was sentenced on March 30, 1987 to a definite term of imprisonment of one and one-half years on each of the three counts, to be served concurrently. One year of the sentence was suspended and defendant was placed on five years' probation upon completion of six months' incarceration. Defendant was ordered to pay $25,000 in costs.

On March 16, 1987, defendant filed a timely motion for a new trial, arguing the same grounds as those argued in the motion for new trial filed by Marvin Warner on the same date. The motion raised a renewal of the argument for a change of venue, and claims that the jurors had been given written charges that defendants had not been permitted to examine, and that the written instructions modified instructions the trial court had given orally. Defendant made no allegation of newly discovered evidence or juror misconduct as a basis for this motion for new trial.

On April 20, 1987, Warner moved for leave to file a second motion for new trial outside the fourteen-day limit provided in Crim.R. 33(B), and filed a motion for new trial based on "newly discovered" evidence relating to the misconduct of a juror. The motions were predicated on Crim.R. 33(A)(1), (2) and (6). Schiebel filed motions based on the same grounds. The trial court overruled both of defendants' motions for leave to file motion for new trial and for new trial based on juror misconduct.

Schiebel and Warner each filed two appeals in the First District Court of Appeals. Among the matters raised in the appeal on the merits, Schiebel and Warner contended that four supplemental jury instructions given orally to the jury on Friday afternoon, February 20, 1987, were not given to the jury in writing. As a result, the state moved the trial court for certification of a supplemental record pursuant to App.R. 9(E), so that the supplemental written jury instructions could be added to the record on appeal. The trial court received memoranda, affidavits and argument of counsel from both defendants, and granted the state's motion to correct the record to state that the supplemental written jury instructions had been delivered.

The other appeals, our case Nos. 89-583 and 89-584, challenged the trial court's denial of motions for leave to file motion for new trial and for new trial based on juror misconduct.

In separate opinions, the court of appeals reversed Schiebel's conviction, our case No. 90-85, and reversed the trial court's denial of his motion for leave to file motion for new trial, our case No. 89-583. The state appealed from both judgments and defendant cross-appealed on issues on which the court ruled against him in the court of appeals in our case No. 90-85.

These causes are now before this court upon the allowance of motions and cross-motion for leave to appeal.

Lawrence A. Kane, Jr., Sp. Prosecutor, Mark A. Vander Laan, Carl J. Stich, Jr., Kenneth S. Resnick, Paul R. Mattingly and M. Gabrielle Hils, Cincinnati, for appellant and cross-appellee.

Coolidge, Wall, Womsley & Lombard Co., L.P.A., Roger J. Makley and Janice M. Paulus, Dayton, for appellee and cross-appellant.

MOYER, Chief Justice.

Because defendants were tried together, many of the issues presented on appeal by the state and on cross-appeal by the defendants are intertwined. To avoid duplication, we therefore resolve issues common to both defendants in either the instant case or State v. Warner (1990), 55 Ohio St.3d 31, 564 N.E.2d 18.

89-583

The Motion for New Trial

Immediately after the verdict was rendered on March 2, 1987, and before sentencing on March 30, some of Marvin Warner's attorneys began interviewing jurors in anticipation of litigation in federal court. Attorneys Josephine P. Warner, William H. Jeffress, Jr., and R. Stan Mortenson interviewed jurors Herman Cooper, John Brady, Rita Lafkas, Elmer Mathas, Helen Moore and Albert Stuck. During the first interviews it appears none of the jurors made any statements tending to impeach the verdict, nor did counsel inquire about possible juror misconduct.

However, on April 9, 1987, juror Lafkas signed an affidavit averring that juror Larry Dalton told her that Dalton's mother-in-law had a deposit in Home State, and that Dalton had stated that he "hated" Marvin Warner.

On April 20 and 23, 1987, forty-nine and fifty-two days after the jury verdict, Warner and Schiebel, respectively, moved for leave to file a motion for new trial based on Dalton's alleged "misconduct." In his motion, Schiebel argued that the alleged juror misconduct qualified as newly discovered evidence within the meaning of Crim.R. 33(B). In response, the state moved to strike the juror affidavits as incompetent under Evid.R. 606(B), and because the motions were untimely filed.

On January 14, 1988, the trial court conducted a hearing in State v. Warner, in which jurors Brady and Lafkas and attorneys Mortenson, Warner and Jeffress testified. At Schiebel's request, his motion was decided on the basis of the hearing on Warner's motion. Juror Brady testified that he had not been asked about juror misconduct when interviewed by the attorneys immediately after trial. Attorney Mortenson testified that he informed attorney Josephine Warner that there should be a follow-up interview of juror Brady, but Josephine Warner did not contact Brady until March 28, two days before sentencing--more than twenty-five days after the verdict. The trial court overruled both defendants' motions for leave to file motion for new trial.

The court of appeals reversed the trial court's denial of the motions for leave to file motion for new trial, holding that Warner and Schiebel had shown by clear and convincing evidence that they were unavoidably prevented from timely filing their motions for new trial.

Crim.R. 33(B) provides that a motion for new trial, other than upon the ground of newly discovered evidence, must be filed within fourteen days after the verdict was rendered " * * * unless it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from filing his motion for a new trial * * *." The court of appeals stated that a motion for new trial based on juror misconduct is different from one based on newly discovered evidence.

Warner's and Schiebel's motions for new trial relating to juror misconduct raise two issues for consideration. The first is whether defendants showed by clear and...