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Jackman v. Nicholson3/29/2001
d to the notes. Pursuant to the court's request, defense counsel submitted a proposed jury instruction. The instruction was made a part of the record by the court and identified as "Court's Exhibit 4." Exhibit 4 states:
Ladies and gentlemen of the jury: It has been reported to the court that three notes, which I have here and which I now show you, were left in the ladies' restroom and discovered by one or more of the jury. These notes were written by the plaintiff, Carol Jackman and they are written about the trial and evidence. One is addressed "To the jury."
The court instructs you to disregard these notes and cautions you that it is improper for anyone to attempt to contact you about the case in any way until it is over. The parties and counsel are similarly cautioned. The Court further instructs you that any contact that any of you may have had with these notes be totally disregarded.
Plaintiff's counsel objected to the proposed instruction on several bases: that it identified the notes as being written by plaintiff; that it improperly implied that plaintiff intentionally left the notes in the restroom; and that it characterized the situation as an improper attempt by plaintiff to contact the jury. Counsel further argued that any instruction given by the court should indicate only that the notes were not written by defendant; that the jury was not to speculate as to who wrote the notes; and that the jury was not to consider the notes for any purpose. After the trial court determined that it would give the instruction proposed by defense counsel, plaintiff's counsel moved for a mistrial. After further discussions, the trial court denied the motion for mistrial and read the instruction over counsel's objections. The court then conducted a voir dire of each juror individually in the presence of counsel, inquiring whether he or she could follow the admonitions contained in the instruction and decide the case on the evidence as fair and impartial jurors. Each juror responded in the affirmative.
Plaintiff contends that the instruction given by the trial court prejudiced her right to a fair trial. Specifically, plaintiff maintains that the instruction impugned Mrs. Jackman's character by improperly implying that she intentionally left the notes in the restroom in an attempt to influence the jury to decide the case in her favor. Plaintiff argues that the jury was irreparably tainted by the instruction such that a mistrial was necessitated. The criteria for determining such a question was discussed by the Ohio Supreme Court in State v. Wells (1992), 83 Ohio App.3d 147, in which it stated the following:
" * In evaluating whether the declaration of a mistrial was proper in a particular case, this court has declined to apply inflexible standards, due to the infinite variety of circumstances in which a mistrial may arise. * This court has instead adopted an approach which grants great deference to the trial court's discretion in this area, in recognition of the fact that the trial judge is in the best position to determine whether the situation in his courtroom warrants the declaration of a mistrial. [Id. at 153, quoting State v. Glover (1988), 35 Ohio St.3d 18.]
Where a trial court is exercising discretion, the test for finding an abuse of that discretion is more stringent than the test for finding an error of law it requires a finding that the court's decision was unreasonable, arbitrary or unconscionable. State ex rel. Leigh v. State Employment Relations Bd. (1996), 76 Ohio St.3d 143, 145.
As was noted by the court in Apaydin v. Cleveland Clinic Foundation (1995), 105 Ohio App.3d 149, " ne touchstone of a fair trial is an impartial
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