
    The State of Ohio, Appellee, v. Lane, Appellant.
    
      (No. C-870238
    Decided May 25, 1988.)
    (Reconsideration granted June 20, 1988.)
    
      Arthur M. Ney, Jr., prosecuting attorney, and Christian J. Schaefer, for appellee.
    
      H. Fred Hoefle, for appellant.
    
      
       Following oral argument, Presiding Judge Lee Hildebrandt indicated from the bench that he would not participate in this decision for the reason that the bailiff in the instant case is now the bailiff for his wife, Municipal Court Judge Dolores Hilde-brandt. The parties agreed to submit the case to a third judge of this court on the briefs. Judge Klusmeier was selected to review the case.
    
   Per Curiam.

This cause came on to be heard upon an appeal from the Court of Common Pleas of Hamilton County.

Over a period of time appellant, William Lane, a thirty-nine-year-old black man, was subjected to racial slurs by a group of young men, including sixteen-year-old James Hughes. Appellant also suspected that the group had burglarized his apartment. In addition, there was some dispute over money which appellant allegedly owed Hughes. On September 30, 1986, appellant was confronted by the group as he returned to his apartment. In the course of the altercation that followed, appellant opened the door to his apartment, obtained a gun, and fired five shots, four of which entered the body of James Hughes. Hughes died of the wounds inflicted by appellant.

Following the shooting, appellant walked to a police station, discarding the gun on the way. The gun was never recovered. One police officer transported appellant to the homicide department in downtown Cincinnati, and during the drive the officer secretly recorded a conversation with appellant about the incident. When he was later interrogated formally at the homicide department, appellant gave a taped statement to police. The record reveals that the tape was erased and restarted twice because appellant asked about an attorney. The police officer testified, however, that appellant did not request the assistance of an attorney while his statement was being taken; according to the officer, appellant only wanted to be sure he would be represented by an attorney at trial.

Appellant was charged with voluntary manslaughter, in violation of R.C. 2903.03, with a firearm specification. A motion to suppress the statements appellant made to police was filed. The trial court overruled appellant’s motion, and following a jury trial, appellant was found guilty as he stood charged. Appellant filed a motion for a new trial based upon the alleged misconduct of the bailiff in communicating with the jury during its deliberations. A second judge heard and overruled appellant’s motion for a new trial. Subsequently, the original trial judge sentenced appellant as appears of record, and this timely appeal followed.

Appellant’s first' assignment of error alleges that the trial court erred in failing to suppress appellant’s initial, secretly taped statement. The record reveals that although the secretly taped statement ' was not transcribed, the tape itself was played for the jury. We have listened to the tape and we find it to be completely unintelligible. We determine that the trial court abused its discretion in admitting an unintelligible tape into evidence. The prejudice to appellant is palpable in that even though the tape is unintelligible, the jury may have believed it contained incriminating statements by appellant solely because it was introduced into evidence by the prosecution. Appellant’s first assignment of error is sustained.

Appellant’s second assignment of error, which alleges that the trial court erred in overruling appellant’s motion to suppress the second statement given at the homicide department, is overruled. We find no prejudice to appellant in the admission of the second statement into evidence as the statement was exculpatory, supporting fully appellant’s claim of self-defense. In addition, the record reveals that appellant was fully advised of his Miranda rights prior to making the statement. When appellant mentioned an attorney, the tape was stopped and the police officers explained to the appellant that if he wanted an attorney they could not take a statement from him. At that point, appellant chose to continue with the statement. We do not approve of the actions of the police officers in erasing and restarting the tape during appellant’s statement; however, under the circumstances of this case, we find no prejudice to appellant in the admission of his second taped statement into evidence.

Appellant alleges as his third assignment of error:

“The trial court erred to the prejudice of appellant in denying to him the use of the decedent’s prior history of juvenile adjudications to establish self-defense, in violation of appellant’s right to due process of law under the Fourteenth Amendment, and to due process of law under Art. I. Sec. 10 of the Ohio Constitution.”

Appellant’s third assignment of error is overruled because no proper foundation was laid for the admission of the victim’s juvenile record into evidence, as there was no showing that appellant was aware of the juvenile record of the deceased. If appellant had no knowledge of the juvenile record of the victim, then it was immaterial to appellant’s claim of self-defense.

Appellant’s fourth assignment of error alleges:

“The trial court erred in denying appellant’s motion for new trial because of the misconduct of the bailiff in answering [a] juror’s questions.”

At the hearing on appellant’s motion for a new trial, appellant presented the testimony of one of the jurors concerning a conversation she had had with the bailiff after the jury had been deliberating for a few hours. At that time, the jury had voted twice and was divided. The juror testified that she asked the bailiff, “What would happen in the event of a hung jury?” The bailiff replied that she should not consider that possibility, but that she should “just deliberate the evidence.” The juror again questioned the bailiff, who stated that she should not consider a hung jury. Further the bailiff told the juror just to consider the evidence. From that point on, the juror stated, she felt rushed and pressured to come to a verdict. In addition, the juror indicated that she would have “held out for a hung jury” if she had felt that was an alternative. The juror also testified that when questioned about the possibility of a lesser offense, the bailiff “answered with gestures.”

R.C. 2945.33 provides:

“When a cause is finally submitted the jurors must be kept together in a convenient place under the charge of an officer until they agree upon a verdict, or are discharged by the court. The court, except in cases where the offense charged may be punishable by death, may permit the jurors to separate during the adjournment of court overnight, under proper cautions, or under supervision of an officer. Such officer shall not 'permit a communication to be made to them, nor make any himself except to ask if they have agreed upon a verdict, unless he does so by order of the court. Such officer shall not communicate to any person, before the verdict is delivered, any matter in relation to their deliberation. Upon the trial of any prosecution for misdemeanor, the court may permit the jury to separate during their deliberation, or upon adjournment of the court overnight.

“In cases where the offense charged may be punished by death, after the case is finally submitted to the jury, the jurors shall be kept in charge of the proper officer and proper arrangements for their care and maintenance shall be made as under section 2945.31 of the Revised Code.” (Emphasis added.)

Misconduct by the court’s bailiff in communicating to the jury during its deliberations, a violation of R.C. 2945.33, is presumptively prejudicial to a defendant who is later found guilty by the jury. See State v. Adams (1943), 141 Ohio St. 423, 25 O.O. 570, 48 N.E. 2d 861, 146 A.L.R. 509; State v. King (1983), 10 Ohio App. 3d 93, 10 OBR 116, 460 N.E. 2d 1143, paragraph two of the syllabus. Appellant’s fourth assignment of error is sustained.

Appellant’s fifth assignment of error alleges the trial court erred in sustaining the prosecutor’s objection, during the hearing on appellant’s motion for a new trial, to the testimony of the juror concerning whether the bailiff’s conduct led the juror to vote for conviction.

Evid. R. 606(B) provides:

“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 his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his 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. His affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying will not be received for these purposes.” (Emphasis added.)

We find the trial court did not abuse its discretion in prohibiting testimony by the juror as to the effect of the bailiff’s misconduct upon the juror’s mind in influencing her to assent to the verdict. Appellant’s fifth assignment of error is overruled.

Appellant’s sixth and seventh assignments of error allege that his conviction is against the manifest weight of the evidence and based upon insufficient evidence. Following a complete review of the record, we find the evidence was such that reasonable minds could have reached different conclusions as to whether each element of the offense had been proved beyond a reasonable doubt. See State v. Thomas (1982), 70 Ohio St. 2d 79, 24 O.O. 3d 150, 434 N.E. 2d 1356; State v. Eley (1978), 56 Ohio St. 2d 169, 10 O.O. 3d 340, 383 N.E. 2d 132; State v. Black (1978), 54 Ohio St. 2d 304, 8 O.O. 3d 296, 376 N.E. 2d 948; State v. Swiger (1966), 5 Ohio St. 2d 151, 34 O.O. 2d 270, 214 N.E. 2d 417, certiorari denied (1966), 385 U.S. 874. Further, we find the jury did not lose its way and create such a manifest miscarriage of justice that appellant’s conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App. 3d 172, 20 OBR 215, 485 N.E. 2d 717, paragraph three of the syllabus. Appellant’s sixth and seventh assignments of error are overruled.

Appellant alleges for his final assignment of error:

“The trial court erred to the prejudice of appellant’s right to a fair trial and to due process in overruling defense objections to prejudicial arguments and committed plain error in not correcting insinuations of the prosecutor.”

The only objection by defense counsel to the prosecutor’s closing argument was made when the prosecutor characterized appellant’s description of the victim’s grasp as a “bear hug.” The prosecutor is normally entitled to a certain degree of latitude in his concluding remarks. See State v. Liberatore (1982), 69 Ohio St. 2d 583, 23 O.O. 3d 489, 433 N.E. 2d 561. “The test regarding prosecutorial misconduct * * * is whether the remarks were improper and, if so, whether they prejudicially affected [the] substantial rights of the defendant. * * *” State v. Smith (1984), 14 Ohio St. 3d 13, 14, 14 OBR 317, 318, 470 N.E. 2d 883, 885. We have reviewed the record and we find that the remarks of the prosecutor were not an improper characterization of the evidence presented.

Appellant additionally points out two instances of allegedly improper remarks by the prosecutor to which defense counsel did not object. We find that neither rises to the level of plain error. Appellant’s eighth assignment of error is overruled.

The judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with law and with this decision.

Judgment reversed and cause remanded.

Shannon, Klusmeier and Utz, JJ., concur.  