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State v. Davis9/12/2003
s was subject to any outside influence after the original verdicts. However, the State's arguments miss the point.
. Davis never consented to the jury's re-deliberating the case after the jury had been discharged. His position, expressed clearly to the trial court, was that the defective verdict should be set aside, and that charge, Count VIII, should be dismissed.
. Because Davis did not waive the claimed error in the trial court, it is not plain error. It is a claim of structural error, since it challenges the regularity of the jury deliberation. Where structural error is found, prejudice is presumed; prejudice is not required to reverse a judgment tainted by structural error.
. To the extent that any procedures are set out in the civil or criminal rules, they permit a jury to deliberate further only before discharge. For example, Crim. R. 31(D) states that:
. " hen a verdict is returned and before it is accepted the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberation before the jury is discharged" (emphasis added).
. Civ. R. 48 also allows jurors to be polled after a verdict. This rule provides that if more than one-fourth of the jurors answer that the verdict is not their own, or if the verdict in substance is defective, the jurors must be sent out again for further deliberation. Significantly, the rule states that " f the verdict is defective in form only, with the assent of the jurors and before their discharge, the court may correct it" (emphasis added).
. Clearly, both rules allow action to be taken only before discharge, and neither rule permits action after discharge. This is consistent with established law, as cited above. The reason for the prohibition against deliberation after discharge was expressed many years ago in Sargent, where the Ohio Supreme Court stressed that:
. " * * * in no case can it be permitted to recall a jury to alter or amend their verdict after it has been received and the jury discharged. This would jeopardize the jealous guards with which the law has surrounded jurors, to insure the pure administration of justice and to protect the citizen." 11 Ohio at 474. See also State ex rel Csank v. Jaffe (1995), 107 Ohio App.3d 387, 391 (noting that the practice of reconvening juries has been condemned because circumstances inherent in a juror's return to the community would severely compromise a jury's integrity).
. Because the trial court erred in letting the jury deliberate after discharge, the second assignment of error is sustained. Accordingly, Davis' conviction and sentence on Count VIII must be vacated. Since this ruling fully disposes of Count VIII, we need not consider further the issue of any impropriety in the original deliberations due to the presence of two different verdict forms.
. The second assignment of error is sustained, and the third assignment of error is overruled as moot.
IV.
. In the fourth assignment of error, Davis claims his conviction on Count III was improper and a denial of due process because he was never accused of involuntary manslaughter as a proximate result of committing reckless assault. The original indictment for Count III stated that:
. "on or about September 17, 2001, at Clark County, Ohio Charles E. Davis, did cause the death of another, to-wit: Randall D. Powers as a proximate result of the offender committing or attempting to commit a misdemeanor in violation other than a violation of any Section contained on Title XLV (45) that is a
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