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State v. Spencer3/20/1997
DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997
JUDGMENT: Reversed and remanded for a new trial.
Dr. Jerry Spencer was indicted for prescribing Methadone to eight of his patients over a period of two and one-half years, without a license to operate an addiction treatment program, pursuant to R.C. 3793.11. A jury reviewed the evidence presented by the State and on behalf of appellant's defense and found appellant to be guilty. The trial court sentenced appellant to six months incarceration and a fine of $2,500.00. The second count of obstruction of justice was dismissed upon defense counsel's Crim.R. 29 motion to dismiss after the close of the State's case in chief.
Appellant filed a timely appeal to this Court and raises six assignments of error.
V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO DECLARE A MISTRIAL DURING JURY DELIBERATIONS WHEN ONE OF THE JURORS CONTACTED TWELVE (12) DOCTORS DURING THE WEEKEND RECESS AND DISCLOSED THE FACT THAT HE HAD MADE SUCH CONTACTS TO THE ENTIRE JURY PANEL.
We will review the merits of appellant's fifth assignment of error first because it is dispositive of the appeal.
Appellant asserts that the prevailing party has the burden to demonstrate on appeal that the misconduct of contacting the twelve doctors was not prejudicial under the circumstances. Appellant argues that the court erred in failing to hold a hearing to determine whether the juror was influenced by the doctors whom he contacted. Therefore, the court had no basis to conclude that the presumption of prejudice was rebutted. Appellant's argument is well taken.
The trial court held a hearing after it was revealed that one of the jurors had made the statement while in the deliberation room with the other eleven jurors that he or she had contacted twelve doctors over the weekend recess. The trial court judge questioned the jury foreman to determine exactly what was said in the presence of the other jurors. The foreman repeated the statement which the juror made, that he or she had contacted the twelve doctors about prescribing Methadone. In response to the court's questioning the foreman said that the other jurors immediately reminded the juror that they were ordered not to discuss or try to review facts outside of the information given to them. Nothing else was said in the deliberation room regarding the outside information.
The trial court determined that he would not taint the jury by individually questioning them about any influence this misconduct may have had. Instead, the trial court gave the jury an explicit instruction as to the parameters of the evidence before them for their consideration. The court issued a stern warning about using any outside information, "You are to reject any discussion of outside comments or opinions altogether." (TR. 1117) An hour after the court gave the jury the instructions to resolve the juror misconduct, the jury returned with a guilty verdict.
The Ohio Supreme Court has determined that a presumption of prejudice arises whenever juror misconduct is discovered. State v. Phillips (1995), 74 Ohio St.3d 72, 88. The burden then shifts to the prevailing party to demonstrate that the misconduct was not prejudicial. State v. King (1983), 10 Ohio App.3d 161. The act of the juror in contacting outside sources for information was clearly inappropriate juror misconduct. Upon learning of this, the trial court immediately held a hearing to determine the effect of the juror's statement on the deliberations. The foreman's testimony serves to rebut any presumption of prejudice to the appellant as to the other jurors.
The trial court chose to i
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