State v. Speer

• Decision Date: 31 December 2008
• Docket Number: No. OT-07-046.,OT-07-046.
• Citation: 2008 Ohio 6947,904 N.E.2d 956,180 Ohio App.3d 230
• Parties: The STATE of Ohio, Appellee, v. SPEER, Appellant.
• Court: Ohio Court of Appeals

904 N.E.2d 956

180 Ohio App.3d 230

2008-Ohio-6947

The STATE of Ohio, Appellee, v. SPEER, Appellant.

No. OT-07-046.

Court of Appeals of Ohio, Sixth District, Ottawa County.

Decided December 31, 2008.

Mark E. Mulligan, Ottawa County Prosecuting Attorney, and Lorrain R. Croy and Mary Ann Barylski, Assistant Prosecuting Attorneys, for appellee.

Bradley Davis Barbin and Mark R. Meterko, Columbus, for appellant.

SINGER, Judge.

{¶ 1} This appeal comes to us from a decision issued by the Ottawa County Court of Common Pleas following a jury verdict finding appellant guilty of aggravated vehicular homicide and involuntary manslaughter. Because we conclude that the trial court abused its discretion in denying appellant's challenge for cause as it related to a hearing-impaired juror, we reverse.

{¶ 2} In two separate indictments based upon the same facts, appellant, Scott A. Speer, was indicted by the Ottawa County Grand Jury on four counts: one count of aggravated vehicular homicide, in violation of R.C. 2903.06(A)(2)(a); one count of involuntary manslaughter, in violation of R.C. 2903.04(B); one count of aggravated murder, in violation of R.C. 2903.01(A); and one count of murder, in violation of R.C. 2903.02(A). The indictments stemmed from the death of Jim Barnett when he fell from appellant's boat while out on Lake Erie.

{¶ 3} The two cases were consolidated, and a jury trial was held. During jury selection, one of the jurors revealed that she was hearing impaired to such a degree that she needed to read lips of any speakers in order to know what was being said. Appellant requested that she be excused "for cause," which, over appellant's objection, was denied by the trial court. At the end of voir dire, appellant used all four peremptory challenges on other jurors. The hearing-impaired juror was then included in the jury panel.

{¶ 4} At trial, the following evidence and testimony was presented that is relevant to the issues decided in this appeal. Testimony was presented that early on August 6, 2002, just before 2:00 a.m., appellant and a friend, Jim Barnett, were returning to East Harbor, Lake Erie, from Put-In-Bay in appellant's 24-foot power boat. According to appellant's prior statements, the wind increased, creating three- to six-foot waves, and Barnett, who refused to sit down, fell off the boat near Mouse Island, just off Catawba Point.

{¶ 5} Appellant called 911 from his cell phone. The call was recorded, and the tape was played for the jury. The tape revealed that appellant said he attempted to throw a line and a life ring to Barnett, but was unable to reach him. When appellant called 911 for help, he could not see Barnett and said he was still at the spot where Barnett had fallen in the water. Appellant at first said he was located off "Johnson's Island" near Catawba Point. The Coast Guard noted to appellant that Johnson's Island was not located off Catawba Point. Appellant again responded that he was off Catawba Point and asked for the name of the little island near there. When the Coast Guard stated that it was called "Mouse Island," appellant said that was where he was and where Barnett had fallen.

{¶ 6} While talking with the 911 operator and the Coast Guard, appellant said his boat was drifting into shallow water. Appellant noted several times that the water was rough and the wind was blowing hard. He left the phone once to move his boat into deeper water. He then returned to the phone and continued answering questions. After about 15 minutes, appellant stated that his cell phone was about to lose power and he could not wait any longer because of the rough water. The recording on the 911 tape then ended.

{¶ 7} Later, appellant told police that he then drove his boat back to his marina and carefully tied up at the dock. Appellant went to his nearby 31-foot power boat to allegedly change out of his wet clothing. At approximately 2:35 a.m., appellant placed a second 911 call. This call was erased and, consequently, was not available as evidence for review.

{¶ 8} Police officers soon arrived at the marina to interview appellant about the incident and to determine whether he was under the influence of alcohol. Testimony by police officers was also presented regarding appellant's performance on sobriety tests, his demeanor, his state of mind, and other alleged indications of impairment due to alcohol. The day after the incident, appellant and a friend found Barnett's body washed up on the shore of Mouse Island, near where the incident allegedly took place.

{¶ 9} Testimony was presented that indicated that appellant and Barnett had been long-time friends, but had recently had an argument over money allegedly owed by appellant to Barnett for work on a boat. In addition, Barnett's cousin testified that he and appellant had attended a social event some months after Barnett's death. The cousin was high on drugs at that time, but recalled that appellant had been drinking, had become upset, and had said that he had pushed Barnett on the night of the incident. Other witness testimony and evidence was also presented, which is not relevant for the purposes of our decision on this appeal.¹

{¶ 10} The jury found appellant not guilty as to the aggravated-murder and murder counts, but found him guilty as to the aggravated-vehicular-homicide and involuntary-manslaughter counts. The trial court determined that the two convictions were allied offenses of similar import and sentenced appellant as to the aggravated-vehicular-homicide count. Appellant was sentenced to four years' incarceration, a $10,000 fine, and a suspended driver's license for five years. Appellant's motions for new trial and judgment of acquittal were denied.

{¶ 11} Appellant now appeals that decision, arguing the following three assignments of error:

{¶ 12} "I. The Trial Court erred by failing to disqualify a hearing impaired juror for cause.

{¶ 13} "II. The Trial Court erred in denying Appellant Speer's Motion for a New Trial where the participation of a hearing impaired juror denied Appellant Speer his right to a fair trial, impartial jury and unanimous verdict.

{¶ 14} "III. The Trial Court erred in relying upon facts, other information and conclusions, neither charged nor proven, thereby denying Appellant Speer his fundamental notice, comment and confrontation due process rights at sentencing."

{¶ 15} In his first assignment of error, appellant argues that the trial court abused its discretion in failing to excuse a hearing-impaired juror for cause. We agree.

{¶ 16} R.C. 2945.25 and Crim.R. 24(C) list the particular causes for which a prospective juror may be challenged in a criminal case. R.C. 2945.25 states:

{¶ 17} "A person called as a juror in a criminal case may be challenged for the following causes:

{¶ 18} "* * *

{¶ 19} "(O) That he otherwise is unsuitable for any other cause to serve as a juror." Crim.R. 24(C)(14) states the same "catch-all" provision.

{¶ 20} Whether to disqualify a juror for cause is "`a discretionary function of the trial court * * * [not reversible] on appeal absent an abuse of discretion.'" State v. Smith (1997), 80 Ohio St.3d 89, 105, 684 N.E.2d 668, quoting Berk v. Matthews (1990), 53 Ohio St.3d 161, 559 N.E.2d 1301, syllabus. Generally, the trial court's ruling will not be overturned on appeal "`unless it is manifestly arbitrary and unsupported by substantial testimony, so as to constitute an abuse of discretion.'" State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981 836 N.E.2d 1173, ¶ 38, quoting State v. Williams (1997), 79 Ohio St.3d 1, 8, 679 N.E.2d 646.

{¶ 21} "Satisfactory jury service" must at least meet the constitutional requirements of a fair trial. See In re Murchison (1955), 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (a fair trial in a fair tribunal is a basic due-process requirement). A deaf juror's inability to fully participate due to the unavailability of an interpreter to assist the juror at trial has been held to be sufficient to excuse that juror for cause. See Burke v. Schaffner (1996), 114 Ohio App.3d 655, 683 N.E.2d 861. See also Fendrick v. PPL Serv. Corp. (C.A.3 2006), 193 Fed.Appx. 138 (striking hearing-impaired juror for cause was proper where accommodations could not assure juror's ability to hear proceedings during trial).

{¶ 22} Appellant was found guilty of both involuntary manslaughter and aggravated vehicular homicide. Therefore, in order to determine whether a hearing-impaired juror could have properly evaluated the evidence presented, we must look at what elements must be proved to establish those offenses.

{¶ 23} R.C. 2903.04(B), which designates the elements for involuntary manslaughter, provides that:

{¶ 24} "No person shall cause the death of another * * * as a proximate result of the offender's committing or attempting to commit a misdemeanor of any degree, a regulatory offense, or a minor misdemeanor * * *." Involuntary manslaughter carries with it the culpable mental state of the underlying crime being committed, which in this case was aggravated vehicular homicide.

{¶ 25} R.C. 2903.06(A)(2)(a), the aggravated-vehicular-homicide statute, provides that no person, in the operation of a watercraft shall recklessly cause the death of another. R.C. 2901.22(C) defines "recklessly" to be when a person acts "with heedless indifference to the consequences, * * *[and] perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist."

{¶ 26} Proof of excessive speed in the operation of a motor vehicle under a charge of aggravated vehicular homicide is generally not by itself sufficient to constitute wantonness or recklessness. Akers v. Stirn (1940), 136 Ohio St. 245, 16 O.O. 335, 25 N.E.2d 286, paragraph one...