COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72327 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION LARRY JERIDO : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 26, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-334,793 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor RICHARD J. BOMBIK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: KEVIN CAFFERKEY Attorney at Law 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 KENNETH A. ROCCO, J.: -2- Defendant-appellant Larry Jerido, convicted of murder by a jury, appeals from the subsequent trial court order that denied his motion for a new trial based upon juror misconduct. Appellant argues the trial court's order was improper because one of the jurors injected outside evidence into the deliberations regarding his murder conviction, violating his constitutional rights to due process of law and to confrontation of adverse witnesses. This court has reviewed the record, finds the trial court order was appropriate, and therefore affirms it. Appellant's murder conviction was recently reviewed by this court on direct appeal in State v. Jerido (July 10, 1997), Cuyahoga App. No. 70752, unreported. Therein, this court noted the victim's body was found inside a freezer in his home located at 4290 East 138th Street in Cleveland, Ohio. At appellant's trial, the deputy coroner testified that the cause of death was strangulation. She further testified that based upon the time it took the victim's body to thaw, the estimated date of death was on or about January 18, 1996. The testimony at appellant's trial established the victim was a friend of appellant's. The victim's body was found on January 23, 1996 when appellant requested the police to come to the victim's house to investigate a missing person and a puddle of blood in the kitchen. Upon the officers' arrival, appellant proceeded to unlock the front door; eventually he directed the officers' attention to the freezer, where they discovered the body. -3- Appellant told the officers he had last seen the victim at approximately 7:00 p.m. on January 18, 1996. The testimony further established the victim went to work at 6:00 p.m. on January 17, 1996 and finished working at 2:30 a.m. on January 18, 1996. The victim's car was found burning at approxi- mately 5:00 a.m. on January 18, 1996 in a parking lot located at East 142nd Street and Kinsman Avenue. After an exhaustive review of the testimony of the eighteen prosecution witnesses and of appellant's defense witness, this court proceeded also to review appellant's eight assignments of error. Each was found to be without merit; therefore, appellant's conviction was affirmed. Appellant's subsequent attempt to appeal that affirmance to the Ohio Supreme Court was rejected, (1997), 80 Ohio St.3d 1445. The record reflects that after the jury returned its verdict in this case on May 14, 1996, its members attended an informal meeting with the trial judge in chambers. Also present at the meeting were the two assistant county prosecutors assigned to appellant's case, appellant's two defense counsel, and a court scheduler, Brian Draper. Appellant's counsel, however, did not stay for the entire meeting. Sometime after defense counsels' departure, one of the jurors, Mary Fallon, commented that she had driven by the victim's house during appellant's trial. On May 24, 1996, appellant filed a motion for a new trial based upon R.C. 2945.79(B), which provides: -4- S2945.79 Causes for new trial. A new trial, after a verdict of conviction, may be granted on the application of the defendant for any of the following causes affecting materially his substantial rights: * * * (B) Misconduct of the jury, prosecuting attorney, or the witnesses for the state; *** (Emphasis added.) See, also, Crim.R. 33(A)(2). The trial court held a hearing on appellant's motion. Juror Mary Fallon was examined, as was court scheduler Brian Draper and juror Dennis Ancell. Thereafter, the trial court permitted both the state and the defense to submit briefs regarding the matter. Ultimately, the trial court denied appellant's motion for a new trial in an Opinion and Order dated March 27, 1997. It is from this Order appellant timely appeals, presenting two assignments of error for this court's review. Appellant's assignments of error are related; thus, they are addressed together as follows: ASSIGNMENT OF ERROR NO. I THE TRIAL COURT ERRED IN ITS DENIAL OF DEFEN- DANT LARRY JERIDO'S MOTION FOR NEW TRIAL ON GROUNDS OF JUROR MISCONDUCT WHICH DEPRIVED JERIDO OF HIS RIGHT TO DUE PROCESS OF LAW. ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR NEW TRIAL IN THAT THE CONDUCT OF A JUROR IN CONDUCTING AN INDEPENDENT INVESTIGA- TION OF THE CRIME SCENE VIOLATED APPELLANT'S RIGHT TO CONFRONTATION OF AN ADVERSE WITNESS. Appellant argues his motion for a new trial was improperly denied, contending juror Fallon's actions in this case demonstrate -5- his murder conviction was not based solely on the evidence adduced at trial. Appellant asserts Fallon's independent investigation was juror misconduct that materially affected his substantial rights to due process of law and to confrontation of witnesses. This court is not persuaded. A motion for a new trial is a matter left within the sound discretion of the trial court, and this court may not reverse the trial court's decision absent a finding the trial court abused its discretion. State v. Schiebel (1990), 55 Ohio St.3d 71; State v. Williams (1975), 43 Ohio St.2d 88; Toledo v. Stuart (1983), 11 Ohio App.3d 292; State v. Curnett (1948), 84 Ohio App. 101. Moreover, motions for new trial are not to be granted lightly. Toledo v. Stuart, supra. In analyzing a case of alleged juror misconduct, a trial court must engage in a two-tier inquiry. State v. Taylor (1991), 73 Ohio App.3d 827. First, it must determine whether juror misconduct occurred. State v. Jones (1992), 81 Ohio App.3d 348. If so, it must then determine if the misconduct materially affected the defendant's substantial rights. State v. Hipkins (1982), 69 Ohio St.2d 80; State v. Kehn (1977), 50 Ohio St.2d 11; Marmorstein v. Schuck (1928), 29 Ohio App. 145; State v. Taylor, supra. The trial court in this case determined appellant had failed to prove juror misconduct occurred, basing its decision on Evid.R. 606(B), which states: (B) Inquiry into validity of verdict or in- dictment.Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occur- -6- ring during the course of the jury's delibera- tions or to the effect of anything upon his or any other juror's mind or emotions as influ- encing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith. A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear on any juror, only after some outside evidence of that act or event has been presented. How- ever, a juror may testify without the presen- tation of any outside evidence concerning any threat, any bribe, any attempted threat or bribe, or any improprieties of any officer of the court. His affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying will not be received for these purposes. (Emphasis added.) According to the Staff Note to this rule: The rule conforms to Ohio's aliunde rule. State v. Adams (1943), 141 OS 423, 25 OO 570, 48 NE2d 861. The aliunde rule requires the introduction of evidence from a competent source other than a juror to impeach a jury verdict. A juror can then testify, but the outside source must first be established. The last sentence of Rule 606(B) is comparable to, although the language is not identical to, the Federal version. The first sentence of the rule characterizes statements by a juror designed to disclose any emotional or mental processes employed by him reaching the jury's decision, whether in oral, written or affida- vit form, as inadmissible testimony. This is in accord with Ohio law, as there could be no evidence, aliunde, in such circumstances. (Emphasis added.) Thus, before a juror may testify as to his or her possible consideration of any information gained outside the jury room, a foundation for that testimony must be acquired by the court, other than by testimony volunteered by the jurors themselves. State v. -7- Kehn, supra, at 18. (Emphasis added.) See, also, State v. Schiebel, supra, at 75, citing Wicker v. Cleveland (1948), 150 Ohio St. 434; State v. Adams (1943), 141 Ohio St. 423. At the hearing on appellant's motion for a new trial, the evidence presented concerning juror Fallon's actions came initially from juror Fallon herself rather than from an outside source. Fallon testified in pertinent part as follows: [BY THE COURT:] Q. All right. What we want to know is did you I think everybody can hear you, but I'll turn it so it's closer to you. We're here to determine if there was some investigation you did in checking the mileage. Could you tell us about that, anything you did? Did you do any investigation of your own relative to any of the factual matters in this case? A. Well, I didn't do an investigation. I went to Petitti's Nursery in Garfield Heights, I think it is, and on the way back I drove by the [victim's] house because I heard the address about a thou- sand times and it is between my house and the nursery that I visited. Q. I see. Is there something about that did you learn something or did that assist you in some way in your delibera- tion? A. It didn't assist me, but in our delibera- tions the discussion came up. * * * Q. Did you do any independent investigation of this case, on the facts of this case? A. No. * * * -8- Q. Did you bring to the deliberations in the jury room any knowledge, information obtained outside of the courtroom? A. Well, I learned of the address of where the crime took place in the courtroom and because I live in close proximity to it and driving through the neighborhood, I learned of the approximate distance my- self between the address of the crime and the location where the car was found. Q. That distance was something you related to the jurors? A. I was not the one who initially related it to the jurors in the deliberation. Another juror mentioned it, and I con- firmed that I knew that to be true as well. * * * [BY APPELLANT'S COUNSEL:] Q. Certainly you discussed or you said you confirmed the distance with the council- man's administrative assistant, Juror No. 12, during deliberations? A. I confirmed his statement that the two locations were not right around the block. Q. That was based upon you driving by the house and then driving to your home? A. Yes. That was based upon the knowledge I gained from that. Q. The other jurors were listening to you and your conversations with Juror No. 12, correct? A. Correct. Q. No one objected to that, to you two de- termining the distance between the house and where the car was located, right? No one objected to that. They took you for you (sic) word. -9- A. I don't recall any objection, but I think we came out and asked if we could have a map. I think we came out and asked for additional information, or some testi- mony, or something regarding any testi- mony regarding the distance. The other juror mentioned by Fallon, Dennis Ancell, testified that during deliberations, Fallon made the statement that she went to the scene. Without outside evidence, however, the foregoing testimony was inadmissible to prove juror misconduct. State v. Schiebel, supra; cf., Diehl v. Wilmot Castle (1971), 26 Ohio St.2d 249; State v. Rudge (1993), 89 Ohio App.3d 429. Appellant attempted to circumvent the aliunde rule by pre- senting the testimony of Brian Draper, who stated at the hearing on appellant's motion, in pertinent part, the following: Q. Do you know whether or not any juror went out to investigate that distance? A. One lady said she went to see the area. Q. She went out to see the area? A. She asked how come there was no diagram, and I think Mr. Dubyak [the prosecutor] responded they had pictures and something about maybe not a need for to see the actual distance, and she said like she drove it herself. * * * Q. The statement she made. A. The statement she indicated she drove the distance herself, and she told her- self that she was going to solve this thing herself. Q. And that was a female juror that said that? -10- A. Yes. (Emphasis added.) Draper's testimony thus demonstrated he had no personal knowledge of Fallon's actions; therefore, his statements were merely hearsay and could not constitute outside evidence. State v. Schiebel, supra; State v. Rogers (1990), 68 Ohio App.3d 4; Grier v. The Standard Oil Co. (Apr. 18, 1991), Cuyahoga App. No. 58279, unreported. Without evidence aliunde to demonstrate Fallon had based her decision to convict appellant on facts gained outside the court- room, appellant could not prove juror misconduct occurred. Michelson v. Kravitz (1995), 103 Ohio App.3d 301; State v. Rogers, supra; cf., State v. Kehn, supra; Diehl v. Wilmot Castle, supra. Therefore, the trial court's analysis could have ended at that point. The trial court, however, proceeded to the second tier and found appellant's substantial rights had not been affected by Fallon's actions. Without faulting the trial court's reasoning, it is appropriate to declare this court does not follow the line of cases resulting from State v. King (1983), 10 Ohio App.3d 261, which found a rebuttable presumption of prejudice exists when juror misconduct is alleged. See, e.g., State v. Hart (1988), 57 Ohio App.3d 4; State v. Taylor, supra; State v. Daniel (1994), 97 Ohio App.3d 548; cf., State v. Jenkins (1984), 15 Ohio St.3d 164 at 236; Holley v. Massie (1995), 100 Ohio App.3d 760. Rather, this -11- court follows the pronouncement of the Ohio Supreme Court as follows: Misconduct of a jury will not be presumed, but must be affirmatively proved. The law will presume proper conduct on their part. Clear and positive evidence aliunde is necessary to overcome this presumption. Lund v. Kline (1938), 133 Ohio St. 317 at 320, cited in Michelson v. Kravitz, supra. The trial court in this case was not presented with either any competent evidence or independent proof concerning possible juror misconduct. Since there was no sufficient basis upon which the trial court could grant appellant's motion for a new trial, appellant's substantial rights were not materially affected; therefore, the trial court neither erred nor abused its discretion in overruling appellant's motion. State v. Schiebel, supra; State v. Rogers, supra; State v. Taylor, supra. Accordingly, appellant's assignments of error are overruled. The judgment of the trial court is affirmed. -12- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, A.J. and JOSEPH J. NAHRA, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .