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State ex rel. Haukedahl v. Bates2/2/1995
"MR. GREENLESE: What I saw was--well, I heard a garble, gargle or something, and I looked over and saw his head laying back like that. And then I looked up and saw Mr. Connelly asking you to--looking to you, and I saw you trying to get his attention. And then everybody rushed up, tried to take care of him." (Emphasis added.)
Unlike the Reichert case, in the St. Lake,s case both the record before this court and the briefs of the parties supported this court's reliance on the fact that the juror Fries incident occurred in the presence of the jury. It is not until Dr. Kose filed a motion for reconsideration that the argument is raised that the jury did not witness the juror Fries incident. In his motion for reconsideration, for the first time Dr. Kose argues that "the record is silent as to the whereabouts of the other jurors when various people went to the aid of Juror Fries." However, as discussed above, Dr. Kose's argument, is refuted by the record before the court.
Further, in Reichert, the appellant asked to supplement the record with the inadvertently omitted portion--there was no argument that the record was incorrect. However, in the St. Luke's case, Drs. Kose and Evans argue that the record is incorrect and does not accurately reflect what actually happened during trial.
In addition, the doctrine of plain error was relied on in Reichert as further support for the Supreme Court's judgment of reversal. In contrast, the doctrine of plain error is inapplicable to the St. Luke's case.
For all the above reasons, we find that the Reich case is inapplicable. We further find that the trial court would exceed the scope of the remand, and therefore be without jurisdiction, in holding a hearing on the motion to correct the record. Thus, the second requirement for granting a writ of prohibition under McKee is satisfied.
Because we find that the trial court is without jurisdiction to hold a hearing, the third requirement under McKee, i.e., the inadequacy of a remedy at law, need not be demonstrated.
Accordingly, we find respondent's motion to dismiss not well taken and denied. Further, we find the Haukedahls' petition for a writ of prohibition is granted. Judge Bates is enjoined from holding a hearing on the motion to correct the record in the case captioned Haukedahl v. St. Luke's Hosp., Lucas County Court of Common Pleas, Case No. CV 88-1958. It is so ordered.
Writ granted.
ABOOD, P.J., HANDWORK and GLASER, JJ., concur.
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