Hearing-Impaired Juror Should Have Been Excused in Case Where Audio Recording Was Key Evidence

When Accommodation Could not Enable Juror to Fully Evaluate 911 Tape
State v. Speer, Slip Opinion No. 2010-Ohio-649.
Ottawa App. No. OT-07-046, 180 Ohio App.3d 230, 2008-Ohio-6947. Judgment affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, and O'Donnell, JJ., concur.
Lanzinger and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-649.pdf

(March 3, 2010) The Supreme Court of Ohio ruled today that a hearing-impaired jury candidate should have been dismissed for cause in an Ottawa County murder case in which the court knew that evidence from an audio tape recording would be introduced as purported proof of the defendant’s guilt.

The Court’s 5-2 majority decision, which affirmed a ruling by the 6th District Court of Appeals, was authored by Justice Terrence O’Donnell.

In August 2002 passenger Jim Barnett was drowned when he fell or was pushed from a boat being piloted by Scott Speer on Lake Erie late at night during a period of high winds and 4-6 foot waves. Speer was indicted by a grand jury on multiple charges arising from the incident, including murder, involuntary manslaughter and aggravated vehicular homicide. During pretrial discovery, the state indicated that it would introduce an audio recording of a 9-1-1 call placed by Speer on the night of the incident as evidence of his guilt.

During voir dire (pretrial examination of prospective jurors), prospective juror Linda Leow-Johannsen informed the court that she had a hearing disability that prevented her from understanding spoken words unless she could read the lips of the speaker, and that she would be able to accurately perceive the questioning and testimony of witnesses if the person who was speaking faced her. Leow-Johannsen also indicated that she would “have a problem” understanding the content of an audio tape. Attorneys for Speer moved that Leow-Johannsen be disqualified from serving on the jury “for cause,” i.e. without using one of Speer’s peremptory challenges, because of her hearing impairment. The judge denied the motion to dismiss for cause and Leow-Johannsen was seated on the jury. During the trial, at the time the audio tape was played for the other jurors, the court arranged for Leow-Johannsen to move to the court reporter’s table and view a real-time transcript of the call on a monitor as the reporter typed it.

The jury found Speer not guilty of aggravated murder and murder but guilty of manslaughter and aggravated vehicular homicide. Those counts were merged into a single conviction for aggravated vehicular homicide, for which Speer was sentenced to four years in prison. He appealed, asserting among other claims that the trial court had erred in failing to grant his motion to disqualify juror Leow-Johannsen for cause based on her hearing impairment.

On review, the 6th District Court of Appeals reversed Speer’s conviction and remanded the case for a new trial. The appellate panel ruled that the trial court abused its discretion in failing to disqualify Leow-Johannsen for cause. In its decision, the court of appeals found that the juror’s hearing impairment prevented her from fully evaluating the 911 recording, because determining Speer’s guilt of the charged offenses required analysis not only of his words but also of his tone of voice, level of excitement or agitation, evidence of possible drug or alcohol intoxication and other audio cues that were crucial to determining his mental and physical state at the time of the call.

The state sought and was granted Supreme Court review of the 6th District’s decision.

In the syllabus of today’s decision providing guidance to other state courts, the Court set forth three principles that should be applied in similar cases:

In deciding a challenge for cause to a prospective juror on the basis of a physical impairment, the court must determine, in light of the specific evidence to be presented, whether any reasonable and effective accommodation can be made to enable the juror to serve. In making that determination, the court must balance the public interest in equal access to jury service against the right of the accused to a fair trial, the latter being the predominant concern of the court.
The right to a fair trial requires that all members of the jury have the ability to understand all of the evidence presented, to evaluate that evidence in a rational manner, to communicate effectively with other jurors during deliberations, and to comprehend the applicable legal principles as instructed by the court. An accommodation made to enable a physically impaired individual to serve as a juror must afford the accused a fair trial.
A hearing impairment by itself does not render a prospective juror incompetent to serve on a jury, but when the accommodation afforded by the court fails to enable the juror to perceive and evaluate the evidence, the accused is deprived of a fair trial. To avoid such situations, a trial court must determine whether reasonable accommodations will enable an impaired juror to perceive and evaluate all relevant and material evidence, and when no such accommodation exists, the court must excuse the juror for cause.
Writing for the majority, Justice O’Donnell pointed out that the Supreme Court of Ohio has been a leader in efforts to improve the accessibility of courts to persons with disabilities; has adopted specific language in its Rules of Superintendence stating that “[t]he opportunity for jury service should not be denied or limited on the basis of ... disability;” and since 2003 has implemented an aggressive statewide Interpreter Services Program that trains and equips local courts to accommodate the special needs of hearing-impaired litigants, witnesses and jurors.

Nevertheless, in this case, Justice O’Donnell wrote: “Despite the efforts of the trial court to accommodate Leow-Johannsen, Speer did not receive a fair trial. Regrettably, the accommodation made by the trial court in this instance could not help Leow-Johannsen to effectively perceive or evaluate Speer’s demeanor, detect any slurred speech or the lack of it, or consider the loudness or softness of his voice, the patterns of his speech, his tone – whether excited, calm, or passive – or the inflections of the voices on the 9-1-1 tape. ... Here, both the state and the defense relied on the 9-1-1 tape as evidence relevant to whether Speer committed the charged offenses. The state suggested that Speer’s ‘calm tone’ and his ‘demeanor on the 9-1-1 tape’ provided evidence of his guilt. Speer’s defense counsel denied the state’s contention that Speer had operated his craft under the influence of alcohol by pointing out that the 9-1-1 tape did not show Speer slurring his speech at the time of the call.”

“Leow-Johannsen’s hearing impairment directly affected her ability to perceive and evaluate that evidence because she only read the colloquy from a real-time transcription. Further, the accommodation made by the trial court in this case of allowing Leow-Johannsen to read the court reporter’s transcript did not provide her any means to effectively discern the demeanor, speech patterns, voice inflections, or excitement or lack of it as reflected in the voice modulations or other audio clues on the 9-1-1 tape. Because she could not perceive whether there was urgency in Speer’s voice, whether he slurred his speech, or whether he sounded deceptive or hesitant, she could not include such evaluations in rendering her verdict. ... Thus, the court of appeals correctly determined that the trial court abused its discretion in not excusing Leow-Johannsen and properly reversed the judgment of the trial court.”

While affirming the 6th District’s judgment, the majority disagreed with the standard set forth in the court of appeals opinion for determining whether jurors with disabilities should be seated or excused in specific cases.

Justice O’Donnell wrote: “The appellate court promulgated the following rule of law in its opinion: ‘If any doubt exists that a juror can adequately and completely perceive and evaluate all the evidence, whether because of a physical impairment, mental capabilities, or other reason that would interfere with the performance of a juror’s duties, the trial court must excuse that juror for cause.’ ... We disapprove of this standard. Instead, in deciding a challenge for cause to a prospective juror on the basis of a physical impairment, the court must determine, in light of the specific evidence to be presented, whether any reasonable and effective accommodation can be made to enable the juror to serve. In making that determination, the court must balance the public interest in equal access to jury service against the right of the accused to a fair trial, the latter being the predominant concern of the court.”

The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton and Maureen O’Connor.

Justice Judith Ann Lanzinger entered a dissent that was joined by Justice Robert R. Cupp. Following an extensive review of the questions put to Leow-Johannsen and her responses during voir dire, Justice Lanzinger wrote that in her view the trial judge did not abuse his discretion in determining that placing Leow-Johannsen at the front of the jury box, requiring counsel and witnesses to face her during all trial testimony and allowing her to view a real-time transcript of the 9-1-1 tape as it was played for the other jurors were sufficient accommodations to allow her to understand all of the testimony and material evidence in the case and render a fair verdict. She also noted that Speer’s defense attorney did not object at trial to the accommodations made for Leow-Johannsen, including her review of the 9-1-1 tape by means of reading a transcript.

Justice Lanzinger wrote: “The record indicates that when the trial court decided the challenge for cause, the only argument raised against the juror was the defense counsel’s concern that Leow-Johannsen might not hear all the evidence if an attorney or witness turned away from the jury box. Defense counsel’s argument in support of the challenge for cause thus focused on the juror’s ability to understand the witness testimony, not on her ability to hear the tone and inflection of the voice on the 9-1-1 tape. The trial court weighed the defense’s concern against all information gathered in the voir dire proceedings and acted within its discretion in determining that it would be able to accommodate Leow-Johannsen. ... It is important that discretion to make this assessment remains with the trial court, which is in the best position to weigh all information and circumstances before it. ... Based on the record, the trial court’s decision to deny the challenge for cause to Leow-Johannsen did not reach the level of an abuse of discretion. I therefore respectfully dissent and would reverse and remand the case to the court of appeals for determination of the remaining assignments of error.”

Contacts
Mark E. Mulligan, 419.734.6845, for the Ottawa County prosecutor’s office.

Bradley D. Barbin, 614.445.8416, for Scott Speer.

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