State v. McGail

Full title: STATE OF OHIO Plaintiff-Appellee v. PATRICK A. MCGAIL Defendant-Appellant

Court: COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY

Date published: Jan 27, 2021

2021 Ohio 231 (Ohio Ct. App. 2021)

167 N.E.3d 70

Opinion

Appellate Case No. 2020-CA-3

01-27-2021

STATE OF OHIO Plaintiff-Appellee v. PATRICK A. MCGAIL Defendant-Appellant

ANTHONY E. KENDELL, Atty. Reg. No. 0067242, Miami County Prosecutor's Office, Safety Building, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellee ERIC G. ECKES, Atty. Reg. No. 0091840 & STEPHANIE F. KESSLER, Atty. Reg. No. 0092338, 455 Delta Avenue, Suite 105, Cincinnati, OH 45226 Attorneys for Defendant-Appellant

FROELICH, J.

Trial Court Case No. 2013-CR-437B (Criminal Appeal from Common Pleas Court)

OPINION

ANTHONY E. KENDELL, Atty. Reg. No. 0067242, Miami County Prosecutor's Office, Safety Building, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellee ERIC G. ECKES, Atty. Reg. No. 0091840 & STEPHANIE F. KESSLER, Atty. Reg. No. 0092338, 455 Delta Avenue, Suite 105, Cincinnati, OH 45226 Attorneys for Defendant-Appellant FROELICH, J.

{¶ 1} Patrick A. McGail appeals from a judgment of the Miami County Court of Common Pleas, which concluded, after a post-conviction evidentiary hearing, that McGail was not prejudiced by alleged juror misconduct, and which denied his motion for a new trial. For the following reasons, the trial court's judgment will be affirmed.

I. Procedural History

{¶ 2} In October 2014, McGail was convicted after a jury trial of murder, aggravated burglary, aggravated robbery, and a firearm specification. The charges stemmed from an armed home invasion of the home of Nathan Wintrow, a marijuana dealer, on the night of October 30, 2013, which was committed by McGail and two accomplices (Jason Sowers and Brendon Terrel). During the incident, Sowers shot and killed Wintrow.

{¶ 3} During the police investigation, officers located a U.S. Air Force survival knife that had been given to McGail by his deceased grandfather, a shoe, a handgun, and a white mask near the scene. McGail's knife and the discarded mask later were determined to have McGail's DNA on them. Shortly after the shooting, police found Sowers (wearing one shoe) in his car in the parking lot where he had left it. The police later discovered the handgun used to shoot Wintrow and another white mask in the car. At about the same time that Sowers was discovered, police officers found Terrel walking along another nearby street. While speaking with the officers, a third white mask fell from Terrel's sweatshirt. McGail went to the home of his girlfriend, Jessica Shelton, after the shooting.

{¶ 4} Sowers admitted to participating in the home invasion. He told police that he and McGail had entered Wintrow's residence armed with guns and intending to steal marijuana. Sowers also admitted to being the person who shot Wintrow. Terrel admitted participating in the planning of the home invasion and serving as the lookout. He also implicated McGail. Prior to trial, Sowers and Terrel pled guilty to various charges, and both testified for the State at McGail's trial. Shelton testified at trial that McGail told her that he went inside Wintrow's residence with Sowers, had gotten into a fight, heard a gunshot, saw someone on the floor, and fled the house, dropping his mask and knife.

{¶ 5} McGail testified in his own defense. With respect to the home invasion, he claimed that Brendon Terrel's older brother, Rick, who was also a marijuana dealer, created the plan to rob Wintrow. Although he admitted to being aware of the plan, McGail testified that he initially thought Rick Terrel was joking. According to McGail, Rick Terrel proceeded to obtain a gun and accompanied McGail, Sowers, and Brendon Terrel in the car they drove to the parking lot near Wintrow's residence. At that point, McGail claimed he realized they were serious and told the group he was not participating and was leaving. McGail testified that Rick Terrel responded by taking McGail's knife and cutting him. McGail fled, leaving behind his knife, mask, and cell phone. McGail testified that he initially walked to the square in downtown Troy, Ohio, before proceeding to his girlfriend's house. He denied telling his girlfriend that he was involved in the home invasion or the shooting.

{¶ 6} McGail also presented several witnesses on his behalf. Among his witnesses were his sister, Autumn Kunkle, and youth ministry director for St. Patrick's Church, Diane Mengos. Kunkle testified about their family, the activities they did, McGail's hobbies, his personality, and the knife he received from their grandfather. During her testimony, she stated that the family "[w]ent to church every Sunday [and] did various service activities for that." (Trial Tr., Day 5, at 6.)

{¶ 7} Mengos testified that she had known McGail since his birth; Mengos stated that her children were about the same age as McGail and his siblings and they had all gone to the same school. (Id. at 148-149.) Mengos stated that, in his "earlier years," McGail worked hard at school and was in boy scouts with her son. Mengos testified that she started working closely with McGail when he became a teenager and participated in many youth ministry activities at St. Patrick's Church. She stated that McGail helped with the church festival, did visits to nursing homes, collected coins for St. Vincent DePaul, and collected wrapping paper for Partners in Hope Christmas Shop. McGail participated in the confirmation program during 9th and 10th grades. During that time, he continued to help with the festival, helped at the soup kitchen, collected things for the needy, and joined the contemporary choir as a percussionist. The defense presented photographs of McGail in the church choir and the church musical cast, McGail working at the soup kitchen, and McGail at a youth ministry event in Fort Loramie. Mengos testified that McGail was involved in the Civil Air Patrol and that he had been thrilled to be involved in serving people and rescuing them; McGail also presented photographs of his participation in the Civil Air Patrol.

{¶ 8} McGail provided limited testimony about his church involvement. He said that, growing up, church and school were the most important things for the family and they went to St. Patrick's. He identified himself and his brother in the photograph of the church choir. He said that he had friends at church and saw them when he was at church projects with the youth group, but outside of that, he did not have contact with them. McGail testified that to deal with the shame over not doing more to halt the home invasion, he went to church to ask for forgiveness. He did not testify to current or recent regular attendance at St. Patrick's Sunday services.

{¶ 9} At the conclusion of the trial, the jury found McGail guilty of all charged offenses: two counts of murder, aggravated robbery, aggravated burglary, and the accompanying firearm specifications. At the defense counsel's request, the jury was polled, and each juror agreed that this was his or her verdict.

{¶ 10} On August 28, 2014, prior to sentencing, McGail filed a motion for mistrial based on juror misconduct, which the trial court construed as a motion for a new trial. McGail's motion was supported by an affidavit from Kylie Spiers,¹ Juror #11, who swore to the following relevant facts:

1 At the January 25, 2019 evidentiary hearing, Spiers stated that she had remarried, and she identified herself as Kylie Kautz. For consistency, we will refer to her as "Spiers" throughout this opinion.

3. My decision was influenced to vote "Guilty" when the jury foreman David Westgerdes [Juror #5]² told the jury that he goes to St. Patrick's church the same church that Patrick McGail testified going to and he had never seen Patrick or his family at that church, so he must be lying.

4. This information influenced me to not believe Patrick's testimony.

5. As a result, [sic] of Westegerdes [sic] personal representation, I found
Patrick McGail "Guilty".

(Footnote added.) Spiers's affidavit also alleged that (1) several jurors discussed how McGail would not give police the password to search his phone, but Spiers did not remember any testimony about this, (2) one juror admitted to reading newspaper articles about the case, which were slanted against McGail, and the juror discussed an article with her, (3) a juror brought his wife to watch the trial and would converse with her during breaks, and (4) Spiers asked the foreman to submit a question to the judge asking what would happen if the jury could not reach a unanimous verdict, but he refused to submit the question.

2 Because the conduct of Westgerdes and Spiers is central to the alleged juror misconduct at issue, we will refer to them by name. However, we will refer to the other ten jurors by their initials and juror numbers, which we gleaned from the transcript of voir dire and the order in which the jurors signed the verdict form.

{¶ 11} The State opposed McGail's motion, citing Evid.R. 606(B) and State v. Scheibel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990). Evid.R. 606(B) provides:

(B) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's 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. However a juror may testify without the presentation of any outside evidence concerning any threat, any bribe, any attempted threat or bribe, or any improprieties of any

officer of the court. A juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying will not be received for these purposes.

Scheibel held that, "[i]n order to permit juror testimony to impeach the verdict, a foundation of extraneous, independent evidence must first be established"; the foundation must consist of information from sources other than the jurors themselves, and the information must be from a source which possesses firsthand knowledge of the improper conduct. Schiebel at 75. The Schiebel Court made clear that "[o]ne juror's affidavit alleging misconduct of another juror may not be considered without evidence aliunde being introduced first." Id.; see also Jones v. Cleveland Clinic Found., Ohio Slip Opinion No. 2020-Ohio-3780, ___ N.E.3d ___, ¶ 19. The trial court agreed with the State and overruled the motion.

{¶ 12} McGail sought reconsideration of the trial court's decision, challenging the constitutionality of Evid.R. 606(B) and citing Doan v. Brigano, 237 F.3d 722 (6th Cir.2001) (concluding that the application of Ohio Evid. R. 606(B) violated Doan's Sixth Amendment right to confront the evidence and witnesses against him, but finding no prejudice). McGail also filed a supplemental motion for mistrial based on juror misconduct. The supplemental motion included a second affidavit from Spiers, in which she indicated that she had been contacted by the prosecutor's office and felt like the State was pressuring her to change her affidavit.

{¶ 13} The trial court denied the motion for reconsideration. Prior to the court's ruling on the supplemental motion, McGail again supplemented his motion with an affidavit from R.R., Juror #2. R.R. stated that he heard the foreman's statements that he went to St. Patrick's Church and never saw McGail or his family there. R.R. also reportedly saw another juror talking with a woman during breaks. The trial court denied McGail's supplemental motions for the same reasons as his original motion.

{¶ 14} At the subsequent sentencing hearing, the trial court merged the murder counts and the firearm specifications and imposed an aggregate sentence of 24 years to life in prison.

{¶ 15} McGail raised seven assignments of error on direct appeal, including a claim that the trial court erred in denying his motion for a mistrial due to juror misconduct. We overruled that assignment of error, stating that, "[r]egardless of the nature of Spiers' allegations, Ohio Evid.R. 606(B) plainly precluded McGail from obtaining a new trial based on them." State v. McGail, 2015-Ohio-5384, 55 N.E.3d 513, ¶ 27 (2d Dist.). We observed that Evid.R. 606(B) "contains three basic parts: (1) the rule excludes inquiry into juror thought process or related statements or the reasoning leading to a juror's conclusions, (2) the rule precludes juror testimony (or affidavit) in the absence of some outside evidence (the actual aliunde part of the rule), and (3) the rule permits juror evidence of threats, bribes, or officer-of-the-court misconduct without limitation (this third section is inapplicable here)." Id. at ¶ 29. Applying the first and second parts, we found that the entirety of Spiers's affidavit must be excluded. As to the foreman's statements regarding McGail's church involvement, we emphasized that McGail had not presented any outside evidence of juror misconduct and, instead, relied only on Spiers's affidavit.

{¶ 16} We recognized our precedent stating that courts "cannot use Ohio Evid. R. 606(B) to entirely avoid constitutional violations." Id. at ¶ 33, citing State v. Buelow, 2d Dist. Clark No. 06-CA-29, 2007-Ohio-131, ¶ 84, citing State v. Franklin, 2d Dist. Montgomery No. 19041, 2002-Ohio-2370, ¶ 55, citing Doan, 237 F.3d at 727-729. However, we distinguished Doan by the nature of the extrinsic information brought before the jury in that case (the juror conducted an experiment in her home), and we noted that the Sixth Circuit's "criticism of Ohio's aliunde rule seems to have been diminished by Brown v. Bradshaw, 531 F.3d 433 (6th Cir.2008), and citations to it." Id. at ¶ 34-35. We further concluded that, even if we did not exclude Spiers's averments about McGail's evidence of church affiliation and the references to news reports, neither issue supported a finding that the information was prejudicial to him. Id. at ¶ 38-40. With respect to the foreman's statements, we stated:

We have already indicated that McGail's testimony about his church activities was minimal. He did not testify about current or recent church involvement. He referred to some of the same information introduced by Diane Mengos, the director of youth activities. Mengos' testimony was undisputed and was supported by photographs of McGail in the midst of various church groups, some of which were unquestionably at church facilities. In light of the evidence, no reasonable juror, or hypothetical average juror, could believe McGail's credibility would be diminished by a parishioner who had not seen McGail or his family at the church.

Id. at ¶ 39.

{¶ 17} Addressing McGail's additional assignments of error, we concluded that the trial court erred in failing to merge McGail's murder and aggravated robbery convictions as allied offenses of similar import. We remanded for merger of those offenses and affirmed McGail's convictions in all other respects. McGail appealed to the Ohio Supreme Court, which declined to accept his case for review. State v. McGail, 145 Ohio St.3d 1460, 2016-Ohio-2807, 49 N.E.3d 321.

{¶ 18} McGail sought a writ of habeas corpus in federal district court. He claimed that he was deprived of his Sixth Amendment right to an impartial jury and was unable to confront evidence against him due to juror misconduct and the application of the aliunde rule as set forth in Evid.R. 606(B). The matter was referred to a magistrate judge, who issued a report and recommendation, McGail v. Noble, S.D.Ohio No. 3:17-cv-251, 2018 WL 950184 (Feb. 20, 2018); a supplemental report and recommendation, McGail v. Noble, S.D.Ohio No. 3:17-cv-251, 2018 WL 1406828 (Mar. 21, 2018); and a second supplemental report and recommendation, McGail v. Noble, S.D.Ohio No. 3:17-cv-251, 2018 WL 1439846 (Mar. 22, 2018). The magistrate judge consistently recommended granting a conditional writ as to the portion of McGail's claim related to the jury foreman's statement that he was a congregant at the same church at which McGail claimed regular involvement, but had never seen McGail and his family there and thus McGail must be lying. The magistrate judge concluded that our appellate opinion regarding the newspaper articles was entitled to deference.

{¶ 19} On November 14, 2018, the federal district court adopted all of the magistrate judge's reports and recommendations, overruled any objections, and granted a conditional writ of habeas corpus. McGail v. Noble, S.D. Ohio No. 3:17-cv-251, 2018 WL 5984055 (Nov. 14, 2018). The district court concluded that Doan governed the circumstances at issue. It reasoned, in part:

The point of Doan * * * was not the "nature of the extrinsic evidence," but the right of a defendant to hear and confront evidence given under

oath[,] which were denied both in Doan and for this Petitioner. As noted by the Doan court, "Ohio Rule 606(B), by denying the Ohio courts the ability to consider evidence of the jury misconduct in this case, denied Doan's right to confront the witnesses and the evidence against him, and thus clearly stands in conflict with Supreme Court precedent recognizing the fundamental importance of this constitutional right." Id. at 732.

Admittedly, while Doan involved an out of court experiment and this case did not, both the experimenting juror in Doan and the foreman in McGail engaged in conduct that violated the Sixth Amendment right to confront and cross-examine the witness. That fact that the Doan juror was experimenting outside the jury room and reporting results and that the McGail foreman was providing unsworn testimony of his alleged personal knowledge of Petitioner's church involvement is of no consequence. It is the inability of a defendant to confront evidence and challenge the testimony that was the issue in Doan and is the issue in this matter.

(Citations to docket omitted.) McGail v. Noble, Case No. 3:17-cv-251, 2018 WL 5984055, at *5.

{¶ 20} The district court further disagreed with our conclusion that any violation of McGail's Sixth Amendment right was not prejudicial. The district court stated:

The foreman's statement to the jury that McGail "was lying" because the foreman attended McGail's church and never saw McGail or his family there, was, in fact, prejudicial. McGail, as the defendant in a criminal case, testified in order to explain an alibi that was clearly at odds with the

testimony of his alleged accomplices, Jason Sowers and Brendon Terrel, as well as the physical evidence in the case. In doing so, McGail's credibility was undeniably in issue. In fact, "... whenever a witness takes the stand, he necessarily puts the genuineness of his demeanor into issue." Steward v U.S., 366 U.S. 1, 6, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961). "This is so because the defendant's credibility is in issue whenever he testifies." Id. at 17, 81 S.Ct. 941, n.13.

Respondent's argument that the foreman's statement was harmless error, because neither McGail's church attendance nor church activities were mentioned in cross-examination or closing argument misses the mark. The purpose of the testimony, concerning McGail's youthful involvement and his family's church attendance was not whether McGail or his family regularly attended 10:00 mass at St. Patrick's or regularly attended church at all. Rather, the purpose and importance of the trial testimony that McGail had previously been involved in charitable parish activities and that he had attended church with his family at some earlier point in time was that it portrayed McGail [as] someone other than a defendant on trial for a home invasion where a local resident ended up being murdered. Evidence and testimony concerning McGail's youthful church activities and his earlier church attendance with his family helped portray McGail as an 18-year old of good character and credibility that would, hopefully, enable a jury to believe his testimony concerning his alibi. Pictures of a young McGail in the local church youth group along with the testimony of the youth director,

Diane Mengos, as well as his sister, Autumn Kunkle, who described their up-bringing as "... very family oriented" with baseball and soccer games, travel and adding that we "[W]ent to church every Sunday," did not need to be subject to cross-examination or argued in closing in order to strengthen McGail's credibility. McGail's own testimony concerning church was limited to his testimony that "church and school" were the most important things in his family when he was growing up, and that he goes to church to ask for forgiveness for not stopping the home invasion.

Because testimony concerning McGail's church involvement was obviously used to establish his good character and bolster his credibility with the jury, and interestingly was never challenged by the prosecution, the importance of the foreman stating privately to the jury that he "goes to St. Patrick's church" but that "he had never seen Patrick or his family at that church, so he must be lying" cannot be overstated. McGail had no knowledge of the unsworn juror "witness" testimony that was secretly undermining his credibility, i.e., his defense, and, as such, had no ability to challenge it. The statements of the foreman, allegedly based on his personal knowledge and shared with the jury, [were], in fact, testimony or "evidence" based on out of court information and [were] not "related to internal process of a juror in deliberations." State v. McGail, 55 N.E.3d at 530. Accordingly, the appellate court's opinion that the foreman's statement to the jury was "harmless error" was an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d)(2).

(Parentheticals and citations to docket omitted.) McGail v. Noble, Case No. 3:17-cv-251, 2018 WL 5984055, at *6-7.

{¶ 21} The district court concluded that a post-verdict evidentiary hearing was the appropriate remedy. It stated that, when a trial court learns of extraneous jury influence, "due process requires that the trial court take steps to determine what the effect of such extraneous information actually was on that jury." Id., quoting Nevers v. Killinger, 169 F.3d 352, 373 (6th Cir.1999), overruled on other grounds by Harris v. Stovall, 212 F.3d 940 (6th Cir.2000). The district court held that McGail was entitled to an evidentiary hearing before the trial court pursuant to the Fourteenth Amendment. McGail v. Noble, Case No. 3:17-cv-251, 2018 WL 5984055, at *8.

{¶ 22} The district court thus granted a conditional writ of habeas corpus, requiring that McGail be discharged from custody unless he were given a prompt evidentiary hearing (within 90 days of the district court's decision) in the trial court on his claim of juror misconduct. The court stated that the "evidentiary hearing will concern questions of what the jury foreperson said about McGail and/or his family's church attendance and/or participation and its impact on the jury and its members." Id.

{¶ 23} The trial court held an evidentiary hearing, as required by the district court, on January 25, 2019. Eleven jurors testified; the twelfth was out-of-town. Jim Taylor, an investigator for the Miami County Prosecutor's Office, also testified as a rebuttal witness. The parties submitted several exhibits, including telephone records from McGail's trial counsel's cell phone and recorded conversations involving Taylor and Spiers, Taylor and Westgerdes, and Taylor and D.P. (the out-of-town juror). After preparation of a transcript of the hearing, the parties submitted simultaneous post-hearing memoranda.

{¶ 24} On February 19, 2020, the trial court filed a decision and entry, finding that McGail was not prejudiced by juror misconduct. The trial court found that "the foreman made a statement to the effect that he had not seen the Defendant in church 'lately' and that this statement did not have any impact on the jury and therefore created no prejudice to the Defendant." In so finding, the court found Spiers, the only juror claiming impact, to be not credible and the foreman and other nine jurors to be credible. The court thus found that, "although an outside statement was made regarding church, constituting juror misconduct, the Defendant was not prejudiced by the single statement, fin[d]ing that statement had no impact on any of the jurors' verdict." The court denied the request for a new trial and stated that the "verdict stands."

{¶ 25} McGail appeals from the trial court's ruling.

II. Standard of Review

{¶ 26} In his sole assignment of error, McGail claims that the trial court "erred in finding that McGail was not prejudiced when his constitutional right to an impartial jury and to confront the evidence against him was violated."

{¶ 27} In reviewing circumstances suggesting juror misconduct, an appellate court must conduct a two-tier analysis: (1) determine whether there was juror misconduct and (2) if juror misconduct is found, determine whether it materially affected the defendant's substantial rights. State v. Fowler, 2d Dist. Clark No. 2015-CA-95, 2016-Ohio-5867, ¶ 8; State v. Hopfer, 112 Ohio App.3d 521, 543, 679 N.E.2d 321 (2d Dist.1996), citing State v. Taylor, 73 Ohio App.3d 827, 833, 598 N.E.2d 818 (4th Dist.1991). Consistent with this law, the federal district court instructed that the trial court's evidentiary hearing on remand was to "concern questions of what the jury foreperson said about McGail and/or his family's church attendance and/or participation and its impact on the jury and its members."

{¶ 28} The burden is on the party alleging juror misconduct to establish prejudice. State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 42, citing Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) ("the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias"); State v. Montgomery, 2d Dist. Montgomery No. 26014, 2014-Ohio-4108, ¶ 9. This requirement to demonstrate prejudice is reflected in Crim.R. 33(A)(2), which provides that a new trial may be granted based on misconduct of the jury that materially affects the defendant's substantial rights. Fowler at ¶ 9; State v. Gunnell, 2d Dist. Clark No. 09-CA-0013, 2010-Ohio-4415, ¶ 77.

{¶ 29} We review the trial court's determination on whether a defendant has established juror misconduct and prejudice for an abuse of discretion. State v. Fricke, 2016-Ohio-2747, 64 N.E.3d 300, ¶ 52 (2d Dist.). The term "abuse of discretion" implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 30} "An appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence." State v. Gideon, Ohio Slip Opinion No. 2020-Ohio-6961, ___ N.E.3d ___, ¶ 22, quoting State v. Hawkins, 158 Ohio St.3d 94, 2019-Ohio-4210, 140 N.E.3d 577, ¶ 16.

III. Hearing Evidence and Trial Court's Ruling

{¶ 31} The evidence at the hearing indicated that deliberations occurred over three days. After an initial vote that first day, the jury was split approximately 50/50 on McGail's guilt. When the jury returned the next morning, a few jurors had changed their minds from not guilty to guilty. Spiers testified that she changed her vote from not guilty to guilty in the final minutes of deliberations. (Evid.Hrg.Tr. at 64.) Other jurors, however, indicated that toward the end of deliberations, there was one hold-out; that person was not Spiers.

{¶ 32} During the hearing, the trial court questioned the jurors on three topics: whether the jury foreman bullied other jurors, whether the foreman permitted other jurors to ask questions of the court, and whether the foreman made a comment about church attendance. All jurors who appeared for the hearing, other than Spiers, testified that there was no bullying. Seven jurors testified that every juror could request that questions be asked to the court; only Spiers said that they could not. All of the jurors, except Spiers, testified that they followed the trial court's instruction to consider only the evidence at trial in reaching their verdicts, and they believed the other jurors had followed those instructions as well.

{¶ 33} The primary focus of the questioning was Westgerdes's alleged comment about church attendance. The court's inquiry extended to what was said, whether the comment was discussed by the group, and the comment's impact on the jurors' verdicts. Westgerdes and Spiers faced the most extensive questioning.

{¶ 34} Westgerdes, the jury foreman, acknowledged that he made a comment about McGail's church attendance to the entire jury room. Westgerdes testified:

After reviewing testimony pertaining to church and what the Defendant had done in his previous times before this case came to fruition, he was in

church and very was evident [sic] with the testimony given by Ms. Minges [sic]. The only comment I made after we deliberated, the fact that that was a long time ago. I did make a comment that I had not seen him in church as I go to St. Pat's.

(Evid.Hrg.Tr. at 10.) Westgerdes clarified that he had said that he had not seen McGail "in church lately," explaining that it was evident that McGail had been in church because "there was evidence that he was in the choir and such." (Id. at 10, 15-17.) Westgerdes noted that there were different mass times and that he and McGail could have gone at different times; Westgerdes did not recall if he said that out loud to the other jurors. (Id. at 16, 24.) Westgerdes stated that McGail's participation at church was "two, three, five years" before the crime happened, and the jury thought that his participation in church was not relevant to whether he (McGail) participated in the offense. (Id. at 11.) Westgerdes testified that his personal knowledge of McGail's church attendance did not cause him to have any bias against McGail and had no effect on his verdict. (Id. at 13.)

{¶ 35} On cross-examination, Westgerdes stated that he had spoken with Detective Taylor about a week before the hearing by telephone, while Westgerdes was at work. Westgerdes did not recall whether he used the word "lately" when describing his comment to the jury. (Id. at 20.) Westgerdes emphasized that he could not say that he had never seen McGail in church, because he had seen McGail at church when McGail was younger. (Id. at 20.)

{¶ 36} Spiers initially testified that she followed the trial court's instruction to consider only the evidence presented at trial, but she stated that Westgerdes failed to follow that instruction. (Evid.Hrg.Tr. at 26.) At the time of trial, however, she did not think Westgerdes's comment was outside information that he should not have been saying. (Id. at 27.) Spiers did not report the alleged violation.

{¶ 37} Spiers characterized Westgerdes's statement as "Patrick McGail does not go to St. Patrick's because I go there, and I've never seen him and his family there not one time ever." (Id. at 30.) Spiers testified that Westgerdes accused the family of being liars. (Id. at 32.) Spiers stated that the comment was "directed at me" but was made to the entire room, and the comment was discussed by the entire jury. (Id. at 30.) Spiers did not recall any evidence at trial regarding McGail's church attendance. (Id. at 31.)

{¶ 38} When asked about the impact of Westgerdes's statement, Spiers testified:

Well, like I just tried to explain, the defense is painting an upstanding citizen here, and that's all I have to go off of. I'm just supposed to be listening to the things that are said to me in this room, and when he said that, they're liars, they don't go to that church, it made me wonder in my head if he's lying about that, are they lying about all these other things. It made me wonder, so it had a large impact on.

(Evid.Hrg.Tr. at 33.) Asked if Westgerdes's comment made her form a bias against McGail, Spiers answered:

When I only know the things that I'm being told about someone, everything that I'm being told is going to have somewhat of a bearing, but that - when I'm sitting here questioning to myself what kind of person he is and whether or not I think he would be capable of partaking in that, it had a large - that statement had a large impact on me.

(Id.) Spiers acknowledged that there was "a lot" of testimony and physical evidence presented at trial, but she stated that Westgerdes's comment "just kept ringing in my head." (Id. at 34.) Spiers stated that, contrary to her initial testimony at the hearing that she followed the court's instructions, she did consider the comment as part of her verdict. (Id. at 35.)

{¶ 39} Spiers described how she came to file her first affidavit. She testified that McGail's trial counsel came to her house, unexpectedly, about five days after the trial. (Id. at 28.) They spoke on her porch, and trial counsel asked her a variety of questions, including whether anyone had said anything they should not have said. (Id. at 29.) Spiers told trial counsel about Westgerdes's church comment. (Id.) Spiers stated that comment occurred to her, because it was one of the last things discussed and Westgerdes was rude when he said it. (Id. at 30.) Spiers testified that she wrote a rough draft of the affidavit and told trial counsel what she wanted it to include. (Id. at 37.) Trial counsel typed up the affidavit using "lawyery" language, they reviewed it together, and she signed it. (Id.)

{¶ 40} Spiers testified that she met with McGail's trial counsel three times: when he came unannounced to her home, when she went to his law firm to have the affidavit typed, and when she went to his law firm after the prosecutor's office repeatedly called her. (Evid.Hrg.Tr. at 37.) When asked how often she had spoken with or communicated with trial counsel by text or other means, Spiers stated that she had talked with trial counsel a couple of times and would text to ask him if he had heard anything about the McGail case. (Id. at 39-40.) Spiers stated that the last conversation with trial counsel occurred sometime in 2014. Spiers denied that she had received payment for her affidavit or was directed as to its contents. (Id. at 40.)

{¶ 41} On cross-examination, the prosecutor asked Spiers if she recalled talking to Detective Taylor on December 13, 2018. At that time, Spiers told Taylor that Westgerdes did not accuse the McGails of being liars; rather, that was the conclusion she had reached. Spiers also acknowledged that, in 2014, she told Taylor and others that two paragraphs of her first affidavit were inaccurate (id. at 48-49); Spiers denied at the evidentiary hearing that two other paragraphs were inaccurate (id. at 49).

{¶ 42} The prosecutor also questioned Spiers about her contacts with McGail's trial counsel. Spiers attended a protest at the courthouse, at which trial counsel was also present; the protest partially concerned McGail's case. Spiers denied that she was "glued to [counsel's] side." (Evid.Hrg.Tr. at 51.) The prosecutor presented telephone records for McGail's trial counsel's cell phone, which showed 14 calls between Spiers and trial counsel between August 26 and September 10, 2014. (State's Ex. 5, Evid.Hrg.Tr. at 53.) The prosecutor also showed Spiers a listing of trial counsel's text messages; there were approximately 180 text messages between Spiers and McGail's trial counsel between August 23 and September 11. (State's Ex. 6; Evid.Hrg.Tr. at 53.) The prosecutor highlighted that ten text messages were exchanged on August 23 between 10:44 p.m. and 11:20 p.m. (Evid.Hrg.Tr. at 54.) Spiers testified that she did not know trial counsel before McGail's trial and all the communications were related to McGail's case. (Id. at 56.)

{¶ 43} The prosecutor also asked Spiers about a visit that she had with H.F., Juror #10, at H.F.'s home on August 27, 2014, which was shortly after the trial concluded. Spiers agreed that McGail's trial counsel arrived at H.F.'s home soon after Spiers arrived (Spiers stated 20 minutes later). Spiers denied that she berated H.F. and tried to get her to file an affidavit on McGail's behalf; Spiers stated that she could not speak for trial counsel. (Id. at 57.) Spiers also denied that she was acting "extremely flirty" with trial counsel, saying "I am a nice person, so maybe you would think I was extremely flirty with you if you ever had the chance to talk to me." (Id. at 57.)

{¶ 44} The prosecutor told Spiers that the other jurors had said that Westgerdes was not unkind, that he did not yell, and that he did not say anything about the McGails being liars. When asked if the other jurors were wrong, Spiers said yes. (Id. at 58.)

{¶ 45} Upon questioning from McGail's defense counsel,³ Spiers stated that there was evidence about McGail's good character at trial, that the criminal charges did not "match up" with that character evidence, and that Westgerdes's comment about church attendance affected her evaluation of McGail's credibility. (Evid.Hrg.Tr. at 65-66.) Spiers testified that Westgerdes's church comment "kind of ruined" McGail's character evidence. (Id. at 67.)

3 To be clear, McGail's defense counsel at the evidentiary hearing was a different person than McGail's trial counsel.

{¶ 46} Spiers thought that Westgerdes disregarded what she had to say, because she was younger. (Id. at 68) Spiers was about 24 years old when the trial occurred. (Id.)

{¶ 47} Upon additional questioning by the court, Spiers testified that she attended a rally for injustices at the courthouse at the invitation of a friend. (Id. at 69.) Spiers stated that she saw trial counsel there for "a couple of seconds" and left after about 15 minutes, after she realized one of the issues was McGail's trial. (Id. at 70.)

{¶ 48} R.R. (Juror #2), who also submitted an affidavit, testified that he received a call from McGail's trial counsel, and R.R. went to trial counsel's office and spoke with him. (Evid.Hrg.Tr. at 73.) Trial counsel wrote and printed the affidavit, and R.R. signed it. (Id. at 74.) R.R. believed trial counsel used the information from their conversation to draft the affidavit. (Id. at 75.) R.R. testified that he was not promised any compensation for his affidavit. (Id. at 77.)

{¶ 49} R.R. did not recall any statement by Westgerdes regarding church. (Id. at 76.) R.R. recalled that there was some testimony at trial regarding church, but he did not remember any specific deliberations. (Id.) When asked what impact Westgerdes's statement, as reflected in his affidavit, had on him, R.R. responded, "little to none." (Id. at 77.) When asked if the statement had any impact on his decision to vote guilty, R.R. testified, "No, I don't recall, but I would have to say no that it did not." (Id.)

{¶ 50} Upon questioning by the prosecutor, R.R. testified that he told Detective Taylor that he (R.R.) told trial counsel that Westgerdes's comment had no impact on his (R.R.'s) verdict. (Evid.Hrg.Tr. at 79.) R.R. acknowledged that his statement regarding the lack of impact was not included in his affidavit. (Id.)

{¶ 51} H.F. (Juror #10) did not recall Westgerdes's specifically discussing his attendance at St. Patrick's Church. (Id. at 84.) H.F. further testified that such a statement would not have had any impact on her verdict. (Id.) H.F. explained, "It doesn't matter if he went to church with them or not, I mean, we weren't supposed to be looking at that, we were looking at the evidence." (Id. at 85.)

{¶ 52} H.F. testified that she met Spiers during the trial and had given Spiers a stuffed animal for her children. After the trial ended, Spiers came to H.F.'s house; Spiers had said that she wanted H.F. to meet her children, and Spiers brought lunch. H.F. testified that the lunch date initially was alright, but then McGail's trial counsel knocked on her door. H.F. stated that trial counsel started asking her questions, and she felt uncomfortable. (Id. at 86.) H.F. believed that Spiers had told trial counsel to come to H.F.'s house (H.F. stated that her home does register on GPS), and H.F. testified that Spiers participated in the questioning and acted like "buddies; best friends" with trial counsel. (Id. at 87.) H.F. testified that she felt that the two were ganging up on her and she told them to leave. (Id.)

{¶ 53} K.S. (Juror #7) did not recall Westgerdes or if he made any comments about attending church. (Evid.Hrg.Tr. at 90.) K.S. stated that her guilty verdict was not based on any evidence outside of what was presented at trial. (Id. at 91.) Upon additional questioning by the prosecutor, K.S. stated that she was 18 years old during deliberations; she did not recall any bullying.

{¶ 54} D.L. (Juror #12) recalled that Westgerdes made a comment about attending St. Patrick's Church. (Id. at 94.) When asked to describe the conversation, D.L. testified: "I believe the conversation was talking about a lot of some of the volunteer work that Patrick did that the defense had presented, and that included volunteering in a food line at the church, at St. Patrick's, and what he said was that in the Catholic church a lot of the young people or youth are encouraged by their parents to do that in preparation for confirmation, I think, but he said he attended the church, and he himself had never seen him." (Id. at 95.) Asked what impact this statement had, D.L. responded, "Nothing; none whatsoever." (Id.)

{¶ 55} The judge asked D.L. whether Westgerdes made one statement or had a discussion with the jury, D.L. testified:

No, I don't believe it was a discussion. I mean, the best I remember, at times there were multiple conversations going on, but I do remember that. We talked about him. I think he was an Eagle Scout, and he did another type of volunteer work, and I don't even remember what the purpose of that. It was probably looking at both sides; the defense.

(Evid.Hrg.Tr. at 95.)

{¶ 56} M.R. (Juror #8) recalled that there was testimony about McGail's going to church during the trial (id. at 101), but she did not recall hearing any juror provide information about attending St. Patrick's Church (id. at 99). M.R. testified that her verdict was based solely upon the evidence presented at trial. (Id. at 99.)

{¶ 57} T.H. (Juror #9) testified that he recently was contacted regarding this case and was reminded about a comment regarding church attendance, although he did not recall who on the jury had said it. (Id. at 103.) T.H. testified that "[i]t was a comment that he hadn't been seen in church; this person had not seen McGail in church, but that, when I was reminded of it, my comment was that it didn't affect me at all." (Id.) T.H. did not recall any discussion about the specific comment by the jury. (Id. at 104.) When asked what impact the comment had on him, T.H. replied:

It didn't mean anything to me. I know I go to church, and I don't see people in there that are there. I mean, I go in, attend the service and leave, and I don't always see everybody that's there, and I'm sure they don't see me.

(Id.) T.H. stated that the church comment had no impact on how he evaluated the evidence. (Id. at 105.)

{¶ 58} D.G. (Juror #6) heard the comment by the jury foreman "along the line of going to church at St. Patrick's before and not seeing the McGail family." (Id. at 108.) D.G. did not recall if the comment was made to the entire jury or if there was any discussion of the comment afterward. (Id.) D.G. stated that the comment "didn't have any impact" on his verdict or on how he viewed the evidence. (Id. at 109.)

{¶ 59} J.O. (Juror #3) did not hear any juror make a comment about attending church. (Evid.Hrg.Tr. at 113.) J.O. stated that nothing regarding the testimony at trial about church affected his decision. (Id. at 114.) J.O. further testified that it would not have mattered if anyone made a comment about McGail's or his family's church attendance or lack thereof. (Id. at 115.)

{¶ 60} L.S. (Juror #4) testified that she did not hear anyone make a comment about attending St. Patrick's Church. (Id. at 117.) She stated that her verdict was not based on whether McGail attended church. (Id. at 118.) L.S. further stated that a statement about McGail's and his family's church attendance would not have affected her decision. (Id.)

{¶ 61} D.P. (Juror #1) did not testify at the hearing. Defense counsel represented that there was a three-minute recorded conversation between D.P. and Detective Taylor prior to the evidentiary hearing, in which D.P. stated that he did not recall a conversation in terms of church attendance and evidence. Defense counsel indicated that D.P.'s testimony would not be dispositive of the issue before the trial court. The recorded conversation between Taylor and D.P. was submitted into evidence as Joint Ex. 1. Consistent with counsel's representation, D.P. stated on the recording that he did not recall a conversation about church attendance during deliberations. D.P. further stated that no other juror influenced him to change his vote. (Joint Ex. 1.)

{¶ 62} Detective Taylor testified that, after Spiers's original affidavit was filed, he received an assignment from the prosecutor's office to talk to the jurors; Taylor spoke with 10 jurors. Taylor stated that he was asked to talk to jurors again after the district court's decision was rendered, and he spoke with all 12 jurors.

{¶ 63} Taylor had three conversations with Spiers in December 2018. During the first conversation, Spiers told Taylor that she wanted to refer to her affidavit and that she would call him back. Spiers called back Taylor on the same day and left a message. When the two spoke on December 13, they discussed Spiers's affidavit about Westgerdes's church comment. Spiers told Taylor that Westgerdes did not say that McGail was lying; she explained that she reached that conclusion as part of her thought process. (See State's Ex. 3, 1:44 to 2:58.)

{¶ 64} Defense counsel questioned Taylor about his conversation with Westgerdes. Taylor testified that Westgerdes and he spoke about a week before the hearing, and Westgerdes described his statements as that he did not think he had ever seen McGail's family at church. (See Defense Ex. 1, 6:15 to 6:25.) Taylor agreed that Westgerdes did not use the word "lately."

{¶ 65} On redirect examination, Taylor testified that Westgerdes's comment was not inconsistent with his (Westgerdes's) testimony at the hearing. In the phone conversation with Taylor, Westgerdes referred to not seeing McGail's family, as opposed to McGail, at church.

{¶ 66} The trial court issued a 30-page decision, finding that McGail was not prejudiced by juror misconduct. In ruling on McGail's motion, the trial court broke down paragraph three of Spiers's affidavit into three parts: (1) when or if McGail was seen in church by the foreman, (2) did the statement apply to McGail, his family, or both, and (3) whether McGail "must be lying."

{¶ 67} The trial court addressed the third part first. It found that no juror, including Spiers, testified that the foreman said that McGail "must be lying." The trial court pointed to Spiers's own testimony and recorded statements, which indicated that the foreman did not accuse McGail of being a liar, but that was what was in Spiers's mind. (Feb. 19, 2020 Dec. at 4.) Thus, the trial court found that the jury foreman did not state that McGail must be lying. Id. at 5.

{¶ 68} The trial court noted that the primary allegation centered around whether the foreman stated that he "had never seen McGail or his family at that church." (Emphasis sic.) On this issue, the trial court found Westgerdes, D.G. (Juror #6) and D.L. (Juror #12) to be credible and found that Westgerdes had said that he had not seen the Defendant in church "lately," rather than never. The court noted that, with the passage of more than four years since the trial, it was "hard to believe * * * that any of the jurors can accurately recall the exact statement made as all agreed it was a single comment that was not discussed by the entire jury." (Feb. 19, 2020 Dec. at 7.)

{¶ 69} The trial court then evaluated whether that statement was prejudicial to McGail. Citing to State v. Gunnell, 2d Dist. Clark No. 09-CA-13, 2010-Ohio-4415, and other authority, the court held that the burden was on McGail to establish prejudice and that the court was to consider the matter from the perspective of a rational juror, not the individual juror in the case. With that standard in mind, the trial court concluded that "it defies logic to indicate that the single statement that the foreman had not seen the Defendant in church would have influenced any juror in his or her decision." The court continued:

As already indicated, the jurors testified that there was a witness who testified to the Defendant's church involvement and photographs showing the Defendant in church. The testimony and photographs presented during trial was uncontested. The photographs were available to the jury during deliberations. To believe the foreman over the witness and the photographs to the extent it caused a juror to influence his verdict is absurd. This would require a conclusion that no juror has common sense. It would require the ordinary and hypothetical juror to believe that a single parishioner sees every church goer, that the [foreman] attends every Sunday and/or every time of mass, and that the foreman knew the Defendant in order to be able to say whether or not he had seen him. There was no evidence that there was any discussion of when or how often the foreman attended church or that he knew the Defendant. What was agreed on was not all jurors heard the comment and that the jury as a whole did not discuss the foreman [sic] attending the same church as the Defendant.

If the foreman's comment as alleged by Spiers was believed, it would contradict the factual conclusions of the evidence. Additionally, the Court would have to conclude that the rational juror allowed the single comment that was not discussed to influence his determination of the Defendant's credibility. The Court declines to make this finding. The jurors demonstrated throughout that [sic] their testimony that they were rational

and not influenced by any comment made by the foreman. Again, at least six jurors did not hear any comment. Jurors further testified that it did not matter if the Defendant attended church or not as what mattered was the evidence. Tr. 85, 96, 105. In ordering this hearing, the Southern District partially based its decision on the fact that the emphasis was not on whether the Defendant actually attended church but whether the foreman's statement influenced the credibility of the Defendant.

While such a statement could influence the Defendant's credibility, this Court concludes that Defendant's credibility was not called into question based on the specific factual findings of the hearing: (1) the comment consisted of one sentence that was not discussed by the jury as a whole; (2) the comment was made in passing when reviewing the photographic evidence showing the Defendant participating in church; and (3) no juror other than Spiers testified that the comment influence[d] their decision in any way[;] in fact they testified to the exact opposite that they made their finding based on the evidence, which was extensive and outcome determinative.

First is the testimony of Juror [T.H./Juror #9] who heard the comment. [T.H.] testified that the comment meant nothing to him as he attends church and doesn't always see everyone. Tr. 104. That the comment had no impact on the evidence. Id. The Court finds this testimony to be that of a reasonable and a rationale [sic] juror, who found that common sense dictates that a person who attends church does not see

every person attending. Juror [L.S./Juror #4] testified that the case was not based on whether the Defendant attended church. Tr. 117-118.

Furthermore, the Court puts weight to the testimony of the remaining jurors who were found to be reasonable jurors. It is the Defendant's burden to establish otherwise; a burden he did not satisfy. Jurors [D.G./Juror #6] (Tr. 108-109), [R.R./Juror #2] (Affidavit, Tr. 76; 78-79), and [T.H./Juror #9] (Tr. 103; 100) testified that they heard the comment but there was no discussion about it and the comment did not impact the evidence or their decision. Jurors [L.S./Juror #4], [J.O./Juror #3], [D.L./Juror #12], [H.F./Juror #10], [L.S./Juror #4] [sic] and [D.P/Juror #1] testified they did not hear the comment but if they had, it would not have impacted their decision. Tr. 113-115, 104, 95-96, 84, 117-118. Jurors [K.S./Juror #7] and [M.R./Juror #8] did not recall any discussion about church in deliberations. Tr. 90-91, 99, 101. In examining the foreman on the potential impact of the comment, the following exchange took place as to the context of the comment and why there was no impact:

JUDGE: During this conversation did you express any opinion as to what you were thinking because of your information that you had not seen the Defendant in church?

MR. WESTGERDES: Absolutely not. The issues were what had happened two, three, five years before this happened were not relevant to the facts of today, and that's basically what those two reviews were about with the cadet and the choir; things changed;

that's what we thought.

Tr. 11.

JUDGE: Can you tell the court what your personal knowledge of attending church had on your decision to vote guilty?

MR. WESTGERDES: Absolutely nothing. As I stated, we talked about the testimonies provided by the cadets, [sic] leader and Ms. Minges [sic], and how those things had happened several years before this happened, and how people change, and what happened in that year is not the same person that was in those two situations provided. That's why we deliberated those two things and basically what happened then was not important now. Those two things were never brought back up the second day when we deliberated the verdict.

Tr. 13.

This testimony established the context of the discussion, which the Court finds to be reasonable and of a rational juror, i.e. finding that a rational juror would evaluate the evidence to establish the weight it should be given; which is the role of the jury.

(Italics sic; footnotes omitted.) (Feb. 19, 2020 Dec. 13-16.)

{¶ 70} The trial court addressed Spiers's testimony, particularly Spiers's statement that Westgerdes's comment impacted her decision. In so testifying, Spiers had indicated that Westgerdes called McGail a liar. The court found "no truth" to Spiers's statement, finding that Spiers herself had testified that Westgerdes did not call McGail a liar, contrary to her affidavit, and Spiers acknowledged that several statements in the affidavit were untrue.

{¶ 71} Acknowledging that having one juror influenced by the foreman's statement could cause prejudice, the trial court extensively discussed Spiers's credibility and concluded that Spiers was not credible. The court emphasized that Spiers testified that paragraphs 7, 9, and 11 of her affidavit were inaccurate, as well as a portion of paragraph three, which was the basis for the hearing. Paragraphs 7, 9, and 11 alleged that she did not remember any testimony regarding McGail's not providing his password to the police, that T.H. admitted to her that he read newspaper articles about the case, and that T.H.'s representation also influenced her decision to find McGail guilty. Spiers further admitted that the foreman did not say "so he must be lying," as stated in her affidavit. The court stated, "The admission that the affirmations are not accurate demonstrate that Spiers is not credible." The court found that Spiers's allegation in her affidavit as to the content of Westgerdes's statement also to be inaccurate, that the foreman's statement was brief, and that the statement was to the effect that he had not seen McGail in church lately. (Feb. 19, 2020 Dec. at 23.) The court found that the allegation that Westgerdes called McGail a liar "did not happen." (Id.)

{¶ 72} The trial court further found that the circumstances surrounding the creation of Spiers's affidavit contributed to the court's conclusion that Spiers was not credible. Spiers testified that she did not know McGail's trial counsel prior to the trial. When approached by McGail's trial counsel and asked whether there was any outside evidence considered by the jury, Spiers allegedly told him about the foreman's church comment. The court noted that while Spiers apparently recalled the single comment by the foreman about church attendance, which was made in passing and not discussed by the jury as a whole, she testified that she had no recollection of the physical evidence presented at trial showing McGail's church involvement. Although Spiers indicated that she had reviewed the affidavit with trial counsel, she did not personally read it. The trial court questioned why Spiers "would attest to facts written by a lawyer she did not know, the Defense lawyer, days after she had voted guilty."

{¶ 73} The trial court also questioned the circumstances of Spiers's communications with trial counsel regarding the affidavit and highlighted trial counsel's cell phone records. The cell phones records reflected "an excessive number of text message between them in to [sic] the late night, in which Spiers wanted the Court to believe they were only about the affidavit." The trial court stated that it "cannot and does not make that leap. The texting would go through 11:00 p.m. on some nights, clearly beyond any rational business hour." (Feb. 19, 2020 Dec. at 24.)

{¶ 74} The trial court further found Spiers to be "manipulative." The court pointed to the encounter between H.F. (Juror #10), Spiers, and trial counsel at H.F.'s home, Spiers's participation in a rally after she had been talking with trial counsel, and Spiers's "collusion" with trial counsel to "ambush" H.F.

{¶ 75} The court found that the evidence created an inference of some type of relationship between Spiers and trial counsel. The court cited to H.F.'s description of Spiers's conduct with trial counsel, i.e., that she was flirtatious and acted like they were "best buddies." The court also referenced Spiers's body language and demeanor at the hearing:

[Spiers] appeared to be defensive and squirmish and quick to attempt to

explain an answer. For example, when asked about text messages to defense counsel at 11:00 p.m. being about business, she suddenly said there could have been a text message asking about his wife. This Court does not believe that a juror who did not know the defense lawyer prior to his direct and personal contact with her immediately after the criminal trial is texting him to ask about his wife; a question one would ask when they are family friends or one has known each other for a period longer than two weeks and in more than what is alleged to have been a business relationship.

(Feb. 19, 2020 Dec. at 25.)

{¶ 76} Finally, the trial court found Spiers to have no credibility based on her testimony's "being opposite of all other jurors on every aspect." Spiers's testimony differed from the other jurors on whether Westgerdes's comment was discussed by the jury as a group, Westgerdes's overall demeanor, whether Westgerdes disregarded her due to her youth (Juror #7 was even younger yet reported no problems), and whether Westgerdes refused to have other jurors' questions submitted to the court. The trial court summarized, "None of the other jurors substantiated any of Spiers's claims." (Feb. 19, 2020 Dec. at 26.) The court further stated, "Finding Spiers had no credibility is with the greatest certainty of this Court." (Id. at 28.)

{¶ 77} Having found Spiers to have no credibility, the court concluded that the foreman's statement had no impact on the jury and thus McGail was not prejudiced by the foreman's statement.

IV. Review of Trial Court's Ruling

{¶ 78} In his sole assignment of error, McGail claims that the trial court "erred in finding that McGail was not prejudiced when his constitutional right to an impartial jury and to confront the evidence against him was violated." McGail argues that the reasons given by the trial court for determining that McGail was not prejudiced by the foreman's statement had already been rejected by the federal courts that reviewed this case. McGail asserts that Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966), is dispositive and requires reversal of the trial court's judgment.

{¶ 79} We review the trial court's decision with the district court's mandate in mind. The first question before the trial court was what the jury foreperson said about McGail and/or his family's church attendance and/or participation. Noting that it was unlikely that the jurors could recall Westgerdes's exact wording, the trial court found that Westgerdes had said that he had not seen the Defendant in church "lately."

{¶ 80} In his appellate brief, McGail notes that five jurors testified to hearing a statement regarding the foreman's not seeing McGail at St. Patrick's Church. McGail points out that all of those jurors, including Westgerdes, testified that Westgerdes had said that he had never seen McGail in church. McGail does not specifically ask us to find that the trial court's factual finding was not supported by competent, credible evidence. (Westgerdes, whom the court believed, testified that he had commented that he had not seen McGail in church lately and would not have said that he "never" saw McGail, because he had seen McGail at St. Patrick's previously.) Rather, he emphasizes that the evidence at the hearing confirmed that the foreman made an extrajudicial statement. McGail states, "The fact that a constitutional error occurred in McGail's case is beyond dispute."

{¶ 81} Having concluded that the foreman made a statement regarding McGail's church attendance, the court next had to consider the statement's "impact on the jury and its members."

{¶ 82} McGail argues that, having found a constitutional violation, the trial court should have concluded that prejudice existed based on the conclusions of the district court, under the law of the case doctrine. We disagree with McGail's contention that the federal magistrate judge's report and recommendations or the district court's decision was dispositive as to whether Westgerdes's statement about church attendance was harmless.

{¶ 83} There is no question that the federal magistrate judge and the district court had grave concerns about the impact on the jurors' decision-making. The federal decisions emphasized that a cornerstone of McGail's defense was his good character, which the defense attempted to establish, in part, through evidence of his involvement at St. Patrick's Church. As succinctly put by the magistrate judge, the purpose of presenting evidence of McGail's involvement in church activities "was clearly to show McGail was a a [sic] good boy." McGail, S.D.Ohio No. 3:17-CV-251, 2018 WL 950184, at *14.

{¶ 84} But the federal decisions did not state that the foreman's statements were irrefutably prejudicial, as a matter of law. Rather, the magistrate judge stated that our conclusion regarding prejudice "was a decision based on an unreasonable determination of the facts in light of the evidence presented." (Emphasis added.) Id at *13. In responding to the Warden's argument that Spiers may not represent a "reasonable or hypothetical juror," the magistrate judge stated:

But there is no basis in the record for concluding her reaction was somehow idiosyncratic. If it were shown, for example, that she was a devout Catholic and had some particular sensibility over this type of evidence, that would be a different case. It is a commonplace of American culture that religious hypocrites (of whatever denomination) suffer serious negative judgment. The average juror, upon learning that evidence of church activity was manufactured or exaggerated, would be likely to disbelieve not just the character evidence given in trial, but the whole case it was given to support.

Id. at *14.

{¶ 85} In requiring the trial court's hearing to concern the impact of foreman's statement on the jury and its members, the district court did not frame the issue of prejudice in hypothetical or objective terms. The fact that the district court required a hearing on the statement's impact on the jury and its members, by its language, indicates that the effect on the actual jurors in this case was relevant to whether prejudice occurred. Accord Smith, 455 U.S. at 216, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (defendant must show actual bias by juror in post-verdict hearing on alleged juror bias).

{¶ 86} The only information before the federal court about the foreman's statement and its impact was Spiers's affidavit. Spiers's affidavit averred that Westgerdes told the jury that "he had never seen Patrick or his family at that church, so he must be lying." The accusations that McGail had "never" seen McGail and that McGail "was lying" played a significant role in the district court's conclusion that the foreman's statement was prejudicial. As the district court stated:

The foreman's statement to the jury that McGail "was lying" because the

foreman attended McGail's church and never saw McGail or his family there, was, in fact, prejudicial. McGail, as the defendant in a criminal case, testified in order to explain an alibi that was clearly at odds with the testimony of his alleged accomplices, Jason Sowers and Brendon Terrel, as well as the physical evidence in the case. * * * Because testimony concerning McGail's church involvement was obviously used to establish his good character and bolster his credibility with the jury, and interestingly was never challenged by the prosecution, the importance of the foreman stating privately to the jury that he "goes to St. Patrick's church" but that "he had never seen Patrick or his family at that church, so he must be lying" cannot be overstated.

McGail v. Noble, S.D.Ohio No. 3:17-CV-00251, 2018 WL 5984055, at *6-7.

{¶ 87} At this juncture, we have the benefit of the evidence from the evidentiary hearing and the trial court's factual findings to inform us of the nature of Westgerdes's statement, the context that the statement was made, the credibility of Spiers and the allegations in her affidavit, and the effect of Westgerdes's statement on the jurors. Most notably, Spiers acknowledged at the evidentiary hearing that portions of her affidavit were incorrect, including the "so he must be lying" portion of her allegation regarding Westgerdes's church comment. In short, given that we are presented with a different factual landscape, we conclude that the federal court's evaluation of prejudice under more limited facts is not dispositive.

{¶ 88} Again, the federal district court remanded for a hearing on (1) what was said and (2) its impact on the jurors, including Spiers. On remand, the trial court found that (1) what Spiers said in her affidavit, and on which the federal court partially based its remand, was not true, and (2) when she said Westgerdes's comment influenced her decision, she was not credible. If all that was needed to obtain a new trial was for a juror to merely sign an affidavit saying that another juror "introduced" improper evidence during deliberations and that the affiant was influenced to vote guilty because of that, there would be no need for a hearing and very few verdicts would ever be final.

{¶ 89} We therefore turn to whether the trial court reasonably concluded that McGail was not prejudiced by Westgerdes's comment, given the evidence presented at the evidentiary hearing. Leaving Spiers (Juror #11) aside, the trial court found that the jurors represented the typical rational juror and that the foreman's comment had no impact on those jurors' decisions at trial.

{¶ 90} The trial court's conclusion that the foreman's statement did not have any effect on the decisions of those eleven jurors was amply supported. All of those jurors testified that they had followed the trial court's instruction to consider only the evidence at trial. Six jurors - H.F. (Juror #10), K.S. (Juror #7), M.R. (Juror #8), J.O. (Juror #3), L.S. (Juror #4), and D.P. (Juror #1) -- testified that they did not hear a comment about McGail's church attendance. Four of those jurors testified that, if they had heard Westgerdes's comment, it would not have had any impact of their verdict. (Evid.Hrg.Tr. 84, 99, 115, 118.) K.S. (Juror #7) and D.P. (Juror #1) affirmatively stated that their verdicts were based solely on the evidence at trial. (Evid.Hrg.Tr. 91; Joint Ex. 1.) Westgerdes (Juror #5), R.R. (Juror #2), D.L (Juror #12), T.H. (Juror #9), and D.G. (Juror #6), who heard (or in Westgerdes's case, made) the comment, similarly were unequivocal that the comment had no effect on their verdicts. (Id. at 13, 77, 79, 95, 103-104, 109.)

{¶ 91} The trial court correctly noted that prejudice may be established if even one juror was improperly influenced by the extrinsic evidence. McGail emphasizes that Spiers testified that she heard Westgerdes's comment about McGail's church attendance, that the comment made her question his credibility, and that it influenced her to vote that McGail was guilty. As stated above, the trial court discussed Spiers's testimony and her credibility at great length and concluded that she was not credible. In short, the trial court did not believe Spiers's testimony that Westgerdes's comment affected her decision in this case and that she voted guilty because of the comment.

{¶ 92} It is well established that when the trial court assumes the role of the trier of fact, the trial court "is in the best position to resolve questions of fact and evaluate the credibility of the witnesses." State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994) (addressing when trial court rules on motion to suppress). Similar to a bench trial, when reaching its decision following an evidentiary hearing, the trial court, as the finder of fact, was free to believe all, part, or none of the testimony of each witness and to draw reasonable inferences from the evidence presented. See State v. Baker, 2d Dist. Montgomery No. 25828, 2014-Ohio-3163, ¶ 28.

{¶ 93} On this record, the trial court's conclusion that Spiers's testimony was not credible was not unreasonable, arbitrary, and unconscionable. The trial court cited numerous reasons why it found, "with the greatest certainty," that Spiers was not credible. Spiers admitted that portions of her affidavit were not accurate, including portions where she stated that Westgerdes had called McGail a liar and where Spiers stated that her verdict was influenced by information received from another juror regarding news reports. Spiers's testimony as to the demeanor of Westgerdes as foreman and about what occurred in the jury room (bullying, ability to ask questions, timing of discussion of McGail's church involvement, when Spiers decided to vote guilty) were inconsistent with, if not directly contradicted by, the other jurors. Spiers's behavior toward McGail's trial counsel during her post-trial visit with H.F. (Juror #10), Spiers's apparent joint effort with trial counsel to procure an affidavit from H.F., and the communications between Spiers and trial counsel as reflected on trial counsel's cell phone records reasonably suggested that Spiers had attempted to minimize or hide her true relationship with trial counsel and raised significant questions about the veracity of her allegations. The trial court reasonably found that Spiers's claim that the foreman's statement impacted her verdict was not credible.

{¶ 94} Given the trial court's factual findings, which are supported by the record, the trial court reasonably concluded that none of the jurors' verdicts was affected by Westgerdes's statement. As stated above, only Spiers testified that the foreman's statement had an effect on her decision, and the trial court found that testimony not to be credible. The trial court further concluded that the actual jurors were representative of rational jurors, and we find no error in that conclusion.

{¶ 95} We recognize that there are some circumstances in which the extrinsic evidence is inherently prejudicial and the incendiary nature of the outside evidence is such that no reasonable jury could possibly disregard it, despite the jurors' assurances to the contrary. We found that to be the case in the appeals from the third joint jury trial of Toneisha Gunnell and Mahogany Patterson, who were found guilty of felony murder and aggravated robbery after they (along with two additional co-defendants) hit and killed a pedestrian in the parking lot while fleeing from the security guard of the store where they had shoplifted. State v. Patterson, 188 Ohio App.3d 292, 2010-Ohio-2012, 935 N.E.2d 439; State v. Gunnell, 2d Dist. Clark No. 2009-CA-0013, 2010-Ohio-4415. During deliberations, the jury inadvertently received an exhibit that had been introduced at a prior trial, but not the third trial. The exhibit consisted of a written witness statement that read:

"[Renada Manns] and [Mahogany Patterson] where [sic] up in pod 3 east laughing about hitting and killing that guy at the mall[.] [T]hey said that fat m****r-fu**er hit the windshield and rolled off the car[.] [T]hey also stated that [Renada's] sister[']s boyfriend is the one that picked them up when they abanded [sic] their car. [Renada] stated that she was the one driving the car when Mr. Deselem was hit."

This witness did not testify at the third trial, nor was her statement offered as an exhibit.

{¶ 96} They jury discussed the exhibit for approximately 45 minutes before alerting the court to the possible error. Upon discussion with the court about the exhibit, the prosecutor informed the court that it had investigated the witness and found the witness statement to be false. Subsequently, the trial judge questioned each juror separately regarding whether they had read and examined the exhibit. Each juror indicated that he or she had, in fact, seen and discussed the document with the other jurors. The court questioned the jurors about whether they could disregard the witness statement and instructed the jurors to disregard it. The court subsequently denied the defendants' motion for a mistrial.

{¶ 97} In reversing the denial of the motion for a mistrial, we stated:

In the present case, State's Exhibit 227B was never marked and identified during Patterson's third trial, and no one disputes that the

document should not have been admitted into evidence. Likewise, its prejudicial effect is clear and compelling. All of the jurors on the panel separately informed the trial judge that they had read and discussed the contents of State's Exhibit 227B with each other. [The witness] statement was clearly prejudicial and shocking to the senses. The statement tended to support a conclusion that Patterson possessed the mens rea element of recklessness with regard to the infliction of serious physical harm for the charged offenses of aggravated robbery and felony murder. The disparaging words and joking attributed to Patterson and Manns, if true, would demonstrate a callous disregard for human life. In our view, we cannot say that the state presented overwhelming evidence of the mens rea element of recklessness required for aggravated robbery and murder.

* * *

We also note that State's Exhibit 227B impeached testimony from Patterson in regard to the identity of the person who had provided her with a return ride to Columbus after abandonment of the rental car in which she was a passenger. Although not necessarily a key point at trial, it certainly undermined Patterson's credibility on that point without the benefit of cross-examination.

We recognize the trial judge's attempts to cure the prejudicial effect of the inclusion of State's Exhibit 227B by instructing the jury "to disregard [the] exhibit and the contents of [the] statement." During the individual meetings with each juror, the trial judge pointed out that since [the witness]

was not called by the state to testify at trial, her statement was "unreliable," and he advised a few, but not all, of the jurors that the statement could not "be considered truthful," as it was not the subject of cross-examination. None of the jurors were told unequivocally that the statement had been determined to be false. We also recognize that each juror individually told the trial judge that he or she would be able to disregard the exhibit during deliberations. Significantly, however, some of the jurors expressed a degree of hesitation by using words such as "I believe" and "I think so."

* * *

Simply put, [the] statement vilified Patterson and was devastating to her defense to aggravated robbery and murder, both of which require proof of recklessness beyond a reasonable doubt. We find that the trial judge's instructions to the jurors were insufficient as a matter of law to cure the prejudicial effect of State's Exhibit 227B. We noted earlier that the repeated references to State's Exhibit 227B, an incendiary statement, may have served only to highlight it further. "We will not blindly assume that a jury is able to follow a * * * court's instruction to ignore the elephant in the deliberation room." United States v. Morena (C.A.3, 2008), 547 F.3d 191, 197. The fact that jurors believed that they could disregard State's Exhibit 227B does not convince us that they did so, given its inherent prejudice. When the jurors were given the opportunity to impeach their own verdict before its announcement in open court, it is no surprise that not a single juror did so. The decision on the motion for mistrial should have been

made on a wholly objective basis and not on the questioning of individual jurors regarding their deliberative process. We are not willing to conclude that State's Exhibit 227B is something that can simply be erased from a juror's mind. The jurors' good faith in deliberations cannot counter the effect of such an injurious and false hearsay statement. Its inclusion among the exhibits was especially egregious given its known falsity. It violated Patterson's rights under the Sixth Amendment Confrontation Clause. Despite the jurors' efforts to decide this case solely on the facts and the law, State's Exhibit 227B readily arouses passion against Patterson and her accomplices.

Patterson at ¶ 73, 77-78, 80; see Gunnell at ¶ 22-29.

{¶ 98} In this case, all of the jurors who testified, except Spiers, testified that they reached their decisions based solely on the evidence at trial, that they followed the trial court's instruction to do so, and that Westgerdes's statement either would not have influenced their decision or actually did not influence their decision. Unlike the witness statement in Patterson and Gunnell, we do not conclude that the foreman's one-line comment was so inflammatory that, viewed objectively, no rational juror could have disregarded it. Stated differently, even if prejudice were presumed in this case, this is not a circumstance where the presumption of prejudice was irrefutable due to the incendiary nature of the extrinsic evidence. In short, the trial court did not abuse its discretion in determining that a rational hypothetical juror could have reached his or her decision without being influenced by the foreman's comment and that the jurors in McGail's case represented those rational jurors who were not influenced by Westgerdes's comment.

{¶ 99} We also conclude that Parker, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420, does not require reversal in this case. In Parker, the defendant was convicted of murder after 26 hours of deliberations. Parker sought post-conviction relief based on misconduct during deliberations by the jury and bailiff. After a hearing on Parker's petition, the trial court found that a court bailiff assigned to shepherd the sequestered jury said to one of the jurors in the presence of others, "Oh that wicked fellow, he is guilty," and at a different time said to another juror under similar circumstances, "If there is anything wrong [in finding petitioner guilty] the Supreme Court will correct it." The trial court found the statement to be erroneous and prejudicial and reversed the conviction; the Oregon Supreme Court reversed. See Parker v. Gladden, 245 Or. 426, 407 P.2d 246 (1965).

{¶ 100} On review, the United States Supreme Court found that the bailiff's statement violated Parker's Sixth Amendment rights. Parker, 385 U.S. at 364-365, 87 S.Ct. 468, 17 L.Ed.2d 420. The Court noted that there was no dispute as to what the bailiff said or that he was not subject to confrontation when he said it. The Court further concluded that the communication was not harmless. It rejected the State's argument that no prejudice was shown and that no harm could have resulted because 10 members of the jury testified that they had not heard the bailiff's statements and Oregon law permits a verdict of guilty by 10 affirmative votes. Instead, the Court noted that the status of the bailiff as an officer of the court, that the length of the jury deliberations demonstrated disagreement over the guilt of the defendant, and that one of the jurors testified that she was prejudiced by the statement. The Court further stated, "Aside from this, we believe that the unauthorized conduct of the bailiff 'involves such a probability that prejudice will result that it is deemed inherently lacking in due process[.]' " Id. at 365.

{¶ 101} We find Parker to be factually distinguishable. Most significantly, the improper extrinsic statement in Parker was made by an officer of the court and there was evidence, after a hearing, that a juror was influenced by the statement. In contrast, the hearing in this case revealed that the improper statement, made by the jury foreman, was that the foreman had not seen the defendant at church lately. All of the credible jurors affirmatively stated that the evidence either did not have an impact on their verdict or would not have had an impact on their verdict. Here, there was no credible evidence to support a conclusion that the foreman's statement affected the outcome of the trial. Accord State v. Dukes, 4th Dist. Scioto No. 16CA3745, 2017-Ohio-7204 (affirming the denial of a post-conviction motion for a new trial where, although it was undisputed that jurors engaged in misconduct by looking up a legal definition on the internet, each juror testified that he or she did not rely on the internet definition in making a decision).

{¶ 102} With the record before us, the trial court did not abuse its discretion in determining that "there was no prejudice to the Defendant based on the foreman's statement." Accordingly, McGail's assignment of error is overruled.

V. Conclusion

{¶ 103} The trial court's judgment will be affirmed. DONOVAN, J. and WELBAUM, J., concur. Copies sent to: Anthony E. Kendell
Eric G. Eckes
Stephanie F. Kessler
Hon. Stacy M. Wall