State Must Prove That Presence of Alternate Juror During Deliberations Did Not Prejudice Defendant

When Defendant Enters Objection, Seeks New Trial

State v. Downour, Slip Opinion No. 2010-Ohio-4503.
Lucas App. No. L-08-1029, 182 Ohio App.3d 12, 2009-Ohio-1812. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., concurs in judgment only.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4503.pdf

(Sept. 29, 2010) The Supreme Court of Ohio ruled 6-0 today that, when a trial court permits an alternate juror to be present during deliberations by seated jury members over the objection of the defendant, the jury returns a verdict adverse to the defendant, and the defendant moves for a new trial based on the presence of the alternate juror, the state bears the burden of proving that the presence of the alternate juror during deliberations did not result in prejudice to the defendant.

Applying that analysis to a Lucas County case, the Court reversed a decision of the 6th District Court of Appeals and ordered that a defendant found guilty of DUI receive a new trial based on the state’s failure to show that the presence of an alternate juror during the seated jurors’ deliberations was not prejudicial to the defendant. The decision was authored by Justice Paul E. Pfeifer.

James Downour of Toledo was charged with a misdemeanor count of driving under the influence of alcohol (DUI). His case was tried to a jury in the Oregon Municipal Court. In its instructions to the jury, the court directed an alternate juror to accompany the seated jurors to the jury room and be present during their deliberations. Downour’s attorney entered an immediate objection to the instruction allowing the alternate to be present in the jury room, but that objection was overruled. With the alternate present, the jury deliberated and returned a guilty verdict. Downour moved for a new trial on the basis that the presence of the alternate juror during deliberations was contrary to law and the state’s rules of criminal procedure. The trial judge denied the motion for a new trial.

Downour appealed. On review, the 6th District Court of Appeals affirmed the judgment of the trial court, finding that although the trial court erred in allowing the alternate to be present during the jury’s deliberations, the error was harmless. Downour sought and was granted Supreme Court review of the 6th District’s ruling.

In today’s decision, Justice Pfeifer wrote: “This court has consistently stated that allowing alternate jurors to be present during jury deliberations is error. In State v. Murphy (2001) … we stated that ‘it is generally regarded as erroneous to permit alternates to sit in on jury deliberations.’ In State v. Jackson (2001) … we stated that ‘[t]he trial court clearly erred … in allowing the alternate jurors to remain present during deliberations.’ In Murphy and Jackson, the defendants did not object to the presence of the alternate juror, and this court analyzed the error under a plain-error standard that does not presume prejudice.”

“In (State v.) Gross (2002), the defendant objected to the presence of the alternate jurors during jury deliberations. … We stated that because the defendant ‘objected to the presence of the alternates in jury deliberations, the burden shifted to the state to demonstrate an absence of prejudice.’ … We also stated that ‘reversible error occurs where, over objection, an alternate juror participates in jury deliberations resulting in an outcome adverse to a defendant and either (1) the state has not shown the error to be harmless, or (2) the trial court has not cured the error.’ … Because the first sentence in Gross refers to an alternate juror's ‘presence’ during jury deliberations and the second sentence refers to an alternate juror’s ‘participation,’ we now clarify that it is the presence of the alternate jurors that shifts the burden to the state to show that any error is harmless. As we discussed in Gross, ‘[T]he United States Supreme Court has explained that “[i]n theory, the presence of alternate jurors during jury deliberations might prejudice a defendant in two different ways: either because the alternates actually participated in the deliberations, verbally or through ‘body language’; or because the alternate’s presence exerted a ‘chilling’ effect on the regular jurors.’”

“We conclude that the trial court erred in allowing an alternate juror to be present during jury deliberations. We also conclude that because Downour ‘objected to the presence of the alternates in jury deliberations, the burden shifted to the state to demonstrate an absence of prejudice.’ … Nothing in the record indicates that the state established the absence of prejudice. We conclude, therefore, that the court of appeals erred when it affirmed the decision of the trial court. Because the state has the burden to show that the presence of an alternate juror in the room during jury deliberations has not prejudiced a defendant, we reverse the judgment of the court of appeals, and we remand for a new trial.”

Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp. Justice Terrence O’Donnell concurred in judgment only. Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Dan Nathan, 419.241.6168, for James Downour.

Tim A. Dugan, 567.249.6427, for the State of Ohio and the City of Oregon.

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