State v. Waddell

[This opinion has been published in Ohio Official Reports at 

75 Ohio St.3d 163

.]




            THE STATE OF OHIO, APPELLANT, v. WADDELL, APPELLEE.
                      [Cite as State v. Waddell, 

1996-Ohio-100

.]
Trial procedure—Trial court has discretion to permit or prohibit note-taking by
         jurors—When note-taking is permitted, trial court should instruct jurors
         they are not required to take notes—Cautionary instructions to jurors
         about note-taking.
                                  __________________
1.       A trial court has the discretion to permit or prohibit note-taking by jurors.
         If a trial court determines that a particular case warrants note-taking, the
         court can, sua sponte, furnish jurors with materials for taking notes and
         instruct the jurors that they are permitted to take notes during the trial.
2.       When instructing jurors that note-taking is permitted, the trial court should
         also instruct the jurors that they are not required to take notes.
3.       If note-taking is permitted, the trial court should caution the jurors that their
         notes are to be confidential, that note-taking should not divert their attention
         from hearing the evidence in the case, that a juror who has not taken notes
         should not be influenced by those jurors who decide to take notes, and that
         notes taken by jurors are to be used solely as memory aids and should not
         be allowed to take precedence over their independent memory of facts.
         (Corbin v. Cleveland [1944], 

144 Ohio St. 32

, 

28 O.O. 562

, 

56 N.E.2d 214

,
         overruled to the extent inconsistent herewith.)
                                  __________________
       (No. 94-2462—Submitted January 9, 1996—Decided March 4, 1996.)
     APPEAL from the Court of Appeals for Franklin County, No. 94APA03-328.
                                  __________________
                              SUPREME COURT OF OHIO




        {¶ 1} On August 30, 1993, the Franklin County Grand Jury indicted
Ebenezer M. Waddell, appellee, for the murder of Franky A. Tention (Count One)
and for having a weapon while under disability (Count Two). Both counts of the
indictment carried a firearm specification. In addition, Count Two contained a
specification alleging that appellee had previously been convicted of a violence
offense.
        {¶ 2} The case proceeded to trial. Appellee waived his right to a jury trial
with respect to the allegations contained in Count Two of the indictment and the
matter was tried before the court. The charges contained in Count One of the
indictment were tried before a jury.
        {¶ 3} At the onset of voir dire, the trial court, sua sponte, furnished
prospective jurors with notepads and informed the jurors that they would be
permitted to take notes of the evidence during the trial, but cautioned them about
the proper use of the notes. Specifically, the trial court stated to the jurors that:
        “I’ll tell you about the pads. I permit notes to be taken. I permit it, but you
don’t have to take notes. That’s your business, whether you take notes or whether
you don’t take notes. If you find it’s distracting to take notes -- excuse me, don’t
take them. Again, as I say, that’s up to you. If you think it helps you to remember,
then take the notes.
        “Remember this, the notes are only an aid to your memory. Your memory
is what matters in here and what you remember. The notes should not take
precedence over what you remember. You remember what you remember and rely
upon your memories.
        “Those jurors who do not take notes should not be influenced by the others
simply because they take notes because as I said, they are only an assistance to
another’s memory. Besides, they might have got it wrong. So rely upon your own
memory.




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                                January Term, 1996




       “When we take -- when we recess for a break or overnight, just leave the
pad on your chair and we’ll take care of it. Nobody’s going to read them. We’ll
gather them up, lock them up in the jury room and get them distributed. When you
come back they will be -- that is overnight. Those notes, you can use them in
deliberations when you are deciding the case.
       “When the case is over, we’ll tear them up the notes and throw them away.
We’ll save the pads, that’s saving money, but other than that no one’s going to read
your notes or have anything to do with them.
       “That’s all I have preliminarily. It’s probably enough.”
       {¶ 4} Subsequently, a jury was impaneled, sworn and the case proceeded.
Ultimately, appellee was found guilty of all charges and specifications alleged in
the indictment.
       {¶ 5} On appeal, the Court of Appeals for Franklin County, in a split
decision, reversed appellee’s convictions with respect to the allegations contained
in Count One of the indictment and remanded the cause for a new trial. The court
of appeals stated that “without request of the parties, and without specifically
affording the parties a chance to object, the trial court instructed the prospective
jurors that the trial court permitted the jurors to take notes during the trial and
furnished pads for that purpose, although no juror was required to take notes.” In
this regard, the court of appeals, citing Corbin v. Cleveland (1944), 

144 Ohio St. 32

, 

28 O.O. 562

, 

56 N.E.2d 214

, and State v. Kehn (1977), 

50 Ohio St.2d 11

, 

4 O.O.3d 74

, 

361 N.E.2d 1330

, held that “it is improper for the trial court to permit
jurors to take notes without the consent of the parties * * *, and that a juror taking
notes constitutes misconduct of the juror * * *.”
       {¶ 6} The cause is now before this court pursuant to the allowance of a
discretionary appeal on the issue of juror note-taking.
                               __________________




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         Michael Miller, Franklin County Prosecuting Attorney, and Katherine
Press, Assistant Prosecuting Attorney, for appellant.
         David J. Graeff, for appellee.
                                     __________________
         DOUGLAS, J.
         {¶ 7} Appellee contends that the actions of the trial court, furnishing the
prospective jurors with notepads and instructing the jurors that they were permitted
to take notes, amounted to prejudicial error. Therefore, urges appellee, the court of
appeals was correct in reversing the judgment of the trial court and remanding the
cause for a new trial. We disagree.
         {¶ 8} As an initial matter, we note that appellee did not timely object to the
actions of the trial court. In considering this matter, the court of appeals concluded
that neither counsel for appellee nor counsel for appellant was afforded an
opportunity to object. The court of appeals determined that the trial court had
already made the determination that it would permit jurors to take notes and,
therefore, any opposition by either party would have been “fruitless.” The court,
citing Crim.R. 51,1 found that an objection by appellee was not required to preserve
the matter for appeal.
         {¶ 9} However, we have thoroughly examined the record in this case and
there is no indication that appellee was ever prevented from objecting to actions of
the trial court. In fact, the record reflects that appellee was actually afforded an
opportunity to object, but specifically declined to do so. Moreover, we find that
Crim.R. 51 is not applicable in this case. Crim.R. 51 states that an exception is not
required in order to lay a foundation for review if the matter “has been called to the


1. Crim.R. 51 states that:
         “An exception, at any stage or step of the case or matter, is unnecessary to lay a foundation
for review, whenever a matter has been called to the attention of the court by objection, motion, or
otherwise, and the court has ruled thereon.”




                                                  4
                                       January Term, 1996




attention of the court by objection, motion, or otherwise, and the court has ruled
thereon.” (Emphasis added.) The matters complained of by appellee were never
called to the attention of the trial court by objection, or otherwise, and,
consequently, the court never made a ruling thereon.
         {¶ 10} Immediately following the instructions in question, the trial court
asked counsel for both parties if “there [was] anything that counsel want me to add
about anything at this point?” Responding to this question, counsel for both parties
stated, “No.” Indeed, any error thought by appellee to be inherent in the taking of
notes by jurors could have been brought to the attention of the trial court at this
time or before the jury retired to consider its verdict. See Crim.R. 30(A).2 Thus,
we conclude that appellee’s failure to object to the actions of the trial court
constitutes a waiver of any error involved. State v. Moreland (1990), 

50 Ohio St.3d 58, 62

, 

552 N.E.2d 894, 899

; and State v. Williams (1977), 

51 Ohio St.2d 112

, 

5 O.O.3d 98

, 

364 N.E.2d 1364

, paragraph one of the syllabus, vacated in part on other
grounds, Williams v. Ohio (1978), 

438 U.S. 911

, 

98 S.Ct. 3137

, 

57 L.Ed.2d 1156

.
Therefore, our discretionary review of this issue must proceed, if at all, under the
plain-error analysis of Crim.R. 52(B), and, in order to warrant a reversal of the
convictions, appellee must establish that the outcome of the trial would clearly have
been different but for the trial court’s allegedly improper actions. 

Moreland, supra,

50 Ohio St.3d at 63

, 

552 N.E.2d at 900

.
         {¶ 11} There is nothing in the record that convinces us that but for the
actions of the trial court the jury would not have convicted appellee of the


2. Crim.R. 30(A) states, in part, that:
         “On appeal, a party may not assign as error the giving or the failure to give any instructions
unless the party objects before the jury retires to consider its verdict, stating specifically the matter
objected to and the grounds of the objection. Opportunity shall be given to make the objection out
of the hearing of the jury.”
         While note-taking by the jurors would have ceased when the jury was about to retire to
conduct their deliberations, counsel for either of the parties could have objected to any notes being
taken into the jury room by any juror.




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                              SUPREME COURT OF OHIO




allegations contained in Count One of the indictment. In fact, there is nothing in
the record which indicates, and appellee does not allege, that any notes were even
taken by the jurors during the course of the trial. Thus, we fail to see how the trial
court’s allegedly improper actions alone could have affected the outcome of the
trial if, in fact, no notes were ever taken.
        {¶ 12} Appellee, nevertheless, argues that a trial court commits reversible
error, as a matter of law, if the court, on its own initiative, supplies jurors with
materials for the taking of notes and instructs the jurors that note-taking is permitted
during the trial. In support of his position that such action by a trial court amounts
to reversible error per se, appellee cites 

Corbin, supra.

 In this regard, appellee
claims that the court of appeals was correct in concluding that “it is improper for a
trial court to permit jurors to take notes without the consent of the parties.”
        {¶ 13} In Corbin, a plaintiff sued the city of Cleveland, alleging that she
was injured when she stepped into a hole in a city sidewalk. After the jury had been
impaneled and sworn, the trial court, without the request of either party, and in fact
over their objections, suggested to the jurors that they would be permitted to take
notes during the trial. The trial court furnished the jurors with the necessary
materials for taking notes and instructed them how their notes should be kept during
the course of the trial. A verdict and judgment was rendered in favor of the city.
On appeal, the court of appeals reversed the judgment of the trial court, holding,
inter alia, that the trial court committed reversible error in encouraging jurors to
take notes over the objections of the parties. On further appeal, this court held that
the court of appeals was correct in granting the plaintiff a new trial. In reaching
this conclusion, we quoted portions of the court of appeals’ opinion in that case,
wherein the appellate court held, in part, that:
        “‘Not intending to modify the rule as set forth in the * * * earlier Ohio cases
that find that there is no prejudicial error in permitting a juror at his own discretion
to take an occasional note, and that when his conduct is discovered or observed it




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                                January Term, 1996




is within the discretion of the court whether he should be directed to stop or be
permitted to continue, yet, where the court without the request of either of the
litigants and in fact over their objections, as in the instant case, suggests to the
jurors that they may take notes and furnishes to each juror, without the juror’s
request, the necessary materials for taking notes, together with instructions as to
how they shall be kept during the trial, the court goes far beyond what is commonly
accepted as good trial practice even in those jurisdictions where the right of jurors
to take notes is fully recognized. Such conduct on the part of the court could easily
be interpreted by the jurors as indicating that it is a part of their duty as jurors to
take notes even though their personal aptitudes would disqualify them from
attempting to try a case in that fashion.’” (Emphasis added.) 

Id.,

144 Ohio St. at 35-36

, 

28 O.O. at 564

, 

56 N.E.2d at 215

.
       {¶ 14} Corbin is clearly distinguishable from the case at bar. Unlike the
defendant in Corbin, appellee in the case before us did not object to the actions of
the trial court. Further, given appellee’s failure to object at trial and his response
to the court’s inquiry immediately following the instructions in question, it could
reasonably be concluded that appellee consented, at least tacitly, to the actions of
the trial court. See, e.g., State v. Mason (Dec. 22, 1994), Franklin App. No. 94
APA03-411, unreported. In any event, insofar as Corbin might be relied upon as a
blanket prohibition that a trial court may not, as a matter of law, sua sponte, furnish
jurors with materials for taking notes and/or instruct jurors that note-taking is
permissible, or that juror note-taking is to be viewed, generally, with suspicion, we
find that Corbin no longer has any validity in this state. Indeed, Corbin has been
the subject of some criticism. See, e.g., In re Appropriation of Easements for
Highway Purposes Over Property of Hulbert (C.P. 1961), 

16 O.O.2d 465, 469-470

,

176 N.E.2d 881, 885-886

; and Note, Trial Procedure—Note Taking by Jurors—
Misconduct of Court in Instructing Jury to Take Notes Over Objections of Litigants
(1945), 43 Mich.L.Rev. 803, 804-805 (“It would seem that whether or not the court




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should voluntarily request the jury to take notes should rest in the sound discretion
of the trial judge.”).
        {¶ 15} “The rule in Ohio is that notetaking by a juror does not, by itself,
constitute unfair prejudice to the defendant.” State v. Loza (1994), 

71 Ohio St.3d 61, 74

, 

641 N.E.2d 1082, 1099

. Further, the decision whether jurors should be
permitted to take notes in a particular case is a matter better left to the sound
discretion of the trial court, and reversible error exists only if the court acts
unreasonably, arbitrarily or unconscionably. See State v. Williams (1992), 

80 Ohio App.3d 648

, 

610 N.E.2d 545

; 

Loza, supra

 (The trial court did not abuse its
discretion in allowing jurors to take notes during trial and use their notes during
deliberations.); and State v. Wilson (1996), 

74 Ohio St.3d 381, 389

, ___ N.E.2d
___, ___ (The trial court did not err in supplying jurors with notebooks and in
instructing the jury that they could take notes during the trial.). The rule that a trial
court has the discretion to permit or prohibit juror note-taking is also embodied in
the Ohio Jury Instructions. See 1 Ohio Jury Instructions (1995) 107, Section 2.52
and 4 Ohio Jury Instructions (1995) 22, Section 402.52. These jury instructions
appear to reflect the modern and majority view in this country.
        {¶ 16} Issues involving juror note-taking have received considerable
attention not only from courts in this state but also from virtually every jurisdiction.
It appears that the vast majority of jurisdictions which have considered such matters
entrust the decision of whether jurors should be permitted to take notes to the sound
discretion of the trial court. Esaw v. Friedman (1991), 

217 Conn. 553, 559

, 

586 A.2d 1164, 1167

. Indeed, this appears to be the view among virtually every federal
appellate court and numerous state courts. See 

id. at 559-560

, 

586 A.2d at 1167

-
1168, for a collection of cases. See, also, United States v. Maclean (C.A.3, 1978),

578 F.2d 64, 65

; and Annotation, Taking and Use of Trial Notes by Jury (1967 &
Supp. 1995), 

14 A.L.R.3d 831

, 834-840, and cases cited therein. We also note that
the Eighth Circuit Court of Appeals, in considering an issue strikingly similar to




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                                 January Term, 1996




that raised in this case, held in United States v. Anthony (C.A.8, 1977), 

565 F.2d 533

, that the trial court did not abuse its discretion in sua sponte furnishing the jury
with notebooks and pencils and simultaneously instructing them that they might
find it helpful to take notes, but that they were not required to do so.
       {¶ 17} Clearly, the taking of notes by jurors in an appropriate case can be
beneficial. It can be a legitimate aid in refreshing memory, enabling jurors to reach
a proper result. See People v. DiLuca (1982), 

85 A.D. 439, 443

, 

448 N.Y.S.2d 730, 733

; and Annotation, supra, 14 A.L.R.3d at 834 (“Those courts which have held
note-taking proper describe it as a legitimate aid to the memory which enables
jurors to reach a more equitable verdict, and dismiss contrary considerations as
anachronisms from times when few men were literate.”). As was cogently pointed
out by the trial court in United States v. Carlisi (E.D. N.Y. 1940), 

32 F. Supp. 479

,
483:
       “* * * There is no legal reason why such notes should not be made by jurors.
Judges and lawyers make notes, why not jurors? Certainly the making of notes
would better aid their memories and thus enable them to more intelligently consider
the evidence.
       “While it did not happen in this case I see no objection to all jurors, if they
desire, making notes which could be used by them to refresh their recollections,
when we realize that the purpose of a law suit is to do justice rather than make it a
game of chance. The Courts should make progress with the times.”
       {¶ 18} Further, the Connecticut Supreme Court, when confronted with the
issue whether jurors may be permitted to take notes during a trial, held in 

Esaw, supra,

217 Conn. at 563-564

, 

586 A.2d at 1169-1170

, that:
       “Finally, considerations of sound judicial policy and faith in the common
sense of jurors lead us to conclude that a trial judge should have the discretion to
permit such a procedure.        The human memory is fallible, and notes may
significantly aid in recalling evidence. Judges sitting as trial courts routinely take




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notes, as do students, business persons, journalists and people in all walks of life
who are intent on being able to recall later the specifics of what they see and hear.
As a matter of ordinary human experience, we usually have no compunctions about
the ability of these people to engage in the process and use its product appropriately.
There is no valid reason to treat jurors, who after all are chosen from the same pool
of experience, any differently. * * *”
       {¶ 19} We are also cognizant of the arguments against the taking of notes
by jurors. See, e.g., Maclean, supra, 

578 F.2d at 66

; 

Esaw, supra,

217 Conn. at 562

, 

586 A.2d at 1169

; and Annotation, supra, 14 A.L.R.3d at 834. For instance,
one of the arguments against note-taking is that jurors who take notes may become
distracted from the evidence and witnesses. See 

Corbin, supra,

144 Ohio St. at 34

-
35, 

28 O.O. at 563

, 

56 N.E.2d at 215

. See, also, Williams, supra, 

80 Ohio App.3d at 652

, 

610 N.E.2d at 547

. However, “[t]he risk that taking notes may distract a
juror is no greater than the possibility that taking notes may increase the juror’s
attention to the testimony.” 

Esaw, supra,

217 Conn. at 562

, 

586 A.2d at 1169

. See,
also, State v. Trujillo (Mo.App. 1994), 

869 S.W.2d 844, 849

 (“[I]t is just as likely
that note-taking will increase their [the jurors’] observation and attention to the
matters at hand rather than diminish their concentration.”). Indeed, it appears that
for each of the arguments against note-taking there is a legitimate response. See

Esaw, supra,

217 Conn. at 562

, 

586 A.2d at 1169

. In any event, we believe that the
benefits of juror note-taking “are substantial enough to allow trial judges to decide,
in each case, whether note-taking should be permitted. Since the value of note-
taking will vary according to the complexity and quantitative nature of each trial as
well as according to the abilities and desires of the jurors, the decision on whether
to permit note-taking is best left to the trial judge to make based on the
circumstances of each case. ‘It is the [trial] judge * * * who has the ultimate
responsibility for the conduct of a fair and lawful trial.’ Lakeside v. Oregon, 

435 U.S. 333, 341

[-342], 

98 S.Ct. 1091, 1096

, 

55 L.Ed.2d 319

[, 326] (1978).” Maclean,




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                                 January Term, 1996




supra, 

578 F.2d at 66

. Further, potential dangers associated with juror note-taking
“can be substantially avoided by proper instruction to the jury.” 

Id.,

578 F.2d at 66

. See, also, Esaw 

217 Conn. at 563

, 

586 A.2d at 1169

.
        {¶ 20} Based on all the foregoing, we hold that a trial court has the
discretion to permit or prohibit note-taking by jurors. If a trial court determines
that a particular case warrants note-taking, the court can, sua sponte, furnish jurors
with materials for taking notes and instruct the jurors that they are permitted to take
notes during the trial. When instructing jurors that note-taking is permitted, the
trial court should also instruct the jurors that they are not required to take notes. If
note-taking is permitted, the trial court should caution the jurors that their notes are
to be confidential, that note-taking should not divert their attention from hearing
the evidence in the case, that a juror who has not taken notes should not be
influenced by those jurors who decide to take notes, and that notes taken by jurors
are to be used solely as memory aids and should not be allowed to take precedence
over their independent memory of facts.
        {¶ 21} In the case before us, the trial court furnished prospective jurors with
notepads and informed them that they were permitted to take notes during the trial.
While the trial court’s actions could be interpreted as encouraging or promoting the
taking of notes of evidence, the court by no means mandated that the jurors take
notes or indicated to them that note-taking was part of their duty as jurors. See

Corbin, supra,

144 Ohio St. at 35-36

, 

28 O.O. at 564

, 

56 N.E.2d at 215

. The trial
court not only instructed the jurors that they could take notes, but, importantly, also
informed them that they were not required to do so. Further, and equally important,
the trial court cautioned the jurors that their notes were confidential, that the notes
were to be used as memory aids and should not take precedence over independent
memory of facts, that those jurors who chose not to take notes should not be
influenced by those who did take notes, and that note-taking should not distract
them from hearing the evidence presented.




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          {¶ 22} The trial court obviously made the determination that this particular
case was a case that might warrant note-taking. There is no indication that the trial
court acted unreasonably, arbitrarily, or unconscionably. Accordingly, we reverse
the judgment of the court of appeals and reinstate appellee’s convictions.
                                                               Judgment reversed.
          MOYER, C.J., WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
                                __________________




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