State v. Rathbun

• Decision Date: 21 November 1978
• Docket Number: No. C,C
• Citation: 586 P.2d 1136,37 Or.App. 259
• Parties: The STATE of Oregon, Appellant, v. Neil Clair RATHBUN, Respondent. 77-06-07805; CA 10265.
• Court: Oregon Court of Appeals

Page 1136

586 P.2d 1136

37 Or.App. 259

The STATE of Oregon, Appellant, v. Neil Clair RATHBUN, Respondent.

No. C 77-06-07805; CA 10265.

Court of Appeals of Oregon.

Argued and Submitted Sept. 18, 1978.

Decided Nov. 21, 1978.

Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Stephen A. Houze, Portland, argued the cause for respondent. With him on the brief was Lois J. Portnoy, Portland.

Jeffrey L. Rogers, Portland, filed a brief amicus curiae for American Civil Liberties Foundation of Oregon, Inc.

Before SCHWAB, C. J., and JOHNSON, GILLETTE and ROBERTS, JJ.

GILLETTE, Judge.

The issue in this case is whether there is a constitutional bar to retrial upon double jeopardy grounds where, during the course of the first trial, the bailiff made improper remarks to the jury. We hold that, under the facts of this case, there is no bar.

Defendant was tried on a charge of First Degree Robbery, ORS 164.415, in a three-day trial which began on October 4, 1977. The jury retired to deliberate at noon on October 6. They were sequestered overnight by the court and returned to continue deliberations on the morning of October 7. As of noon that day, it became apparent that the jury was deadlocked. The trial court declared a mistrial and ordered a new trial.

Later that evening, two of the 12 jurors in the case reported to the district attorney that the trial court bailiff had made a number of remarks to the jury during recesses in the trial and during the deliberations which were of questionable propriety. Hearings were held on October 13 and 18, 1977, to inquire of the jurors what comments they might have heard and what effect the bailiffs comments might have had on their deliberations. Eight jurors testified that they had heard the bailiff comment about such matters as the sentencing practices of the judge who was sitting on the case, the penalties for armed robbery and the bailiff's own recommendation that the jurors take the time to ride in a patrol car with an officer "for the educational benefit." While each of the eight jurors indicated that the bailiff's comments had not influenced his or her own vote, at least two of the jurors felt that the remarks were very prejudicial to the defendant and might have influenced other members of the jury.

Based on the jurors' testimony as to the conduct of the bailiff, defendant moved to dismiss the case on grounds of double jeopardy. A hearing was held on that motion and the trial judge made the following pertinent findings of fact:

1. The bailiff's improper remarks necessitated the declaration of a mistrial; ¹

2. The bailiff was an officer of the court and breached her statutory duty in making the remarks;

3. The error made by the bailiff was motivated by bad faith or prejudice and could not be attributed to mere negligence.

The judge held that a second trial was barred by the double jeopardy clause. Historical findings of fact by the trial court are conclusive and will not be overturned on appeal. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968). The constitutional impact of those findings, however, are for the reviewing court to assess. State v. Warner, 284 Or. 147, 585 P.2d 681 (1978).

The double jeopardy clause protects a criminal defendant from the substantial burdens imposed by multiple prosecutions. In so doing it embraces two sometimes competing policy considerations: a defendant's "valued right to have his trial completed by a particular tribunal" and "the public's interest in fair trials designed to end in just judgments." Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). While ideally these two policies comfortably coexist, in some instances the first must be subordinate to the second. Wade v. Hunter, id. at 689, 69 S.Ct. 834; Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

Guidelines used by the courts in determining when a second prosecution is proper are designed to accommodate these two policies. On the one hand, the Supreme Court has held that where a first trial has been terminated without the defendant's request or consent, retrial will be barred unless the termination of the trial or declaration of mistrial was prompted by "manifest necessity." Arizona v. Washington, supra ; Illinois v. Summerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1975); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). See also State v. Cole, 37 Or.App. 199, 586 P.2d 386 (1978); State v. Embry, 19 Or.App. 934, 530 P.2d 99 Rev. den. (1975). On the other hand, it is ordinarily assumed that there is no bar to retrial where the mistrial is granted at defendant's request. United States v. Dinitz, 424 U.S. 600, 606-08, 96 S.Ct. 1075, 47 L.Ed.2d 267, 273-74 (1976). United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543, 556 (1971). But, if the circumstances resulting in the declaration of mistrial are attributable to prosecutorial overreaching or judicial misconduct, retrial will generally be barred in even this latter case. See Jorn, supra, at 489 n. 12, 91 S.Ct. 547. Downum v. United States, 372 U.S. 734-736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). As stated by the Supreme Court in Dinitz, supra :

"The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where 'bad faith' conduct by judge or prosecutor, (citations omitted) Threatens the '(h)arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant. Downum v. United States, 372 U.S. at 736, 83 S.Ct. 1033. See Gori v. United States, 367 U.S. (364) at 369, 81 S.Ct. 1523 (6 L.Ed.2d 901); United States v. Jorn, supra, 400 U.S. at 489, 91 S.Ct. 547 (Stewart, J., dissenting); Cf. Wade v. Hunter, 336 U.S. at 692, 69 S.Ct. 834." Dinitz 424 U.S. at 611, 96 S.Ct. at 1081. (Emphasis added).

The bailiff's improper conduct contaminated the jury's deliberations in violation of defendant's constitutional rights and necessitated the declaration of a mistrial. Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). The issue here is whether the bad faith conduct of the bailiff can be translated into bad faith conduct on the part of the judge. Defendant insists that this case presents an example of such "bad faith conduct" by the judge which must bar retrial as required by the language in Dinitz and Jorn.

We think however that this case bears a closer resemblance to those cases involving juror bias than those cases involving judicial misconduct. See e. g., Thompson v. United States, 155 U.S. 271, 274, 15 S.Ct. 73, 39 L.Ed. 146 (1894); Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891); Whitefield v. Warden, 486 F.2d 1118 (4th Cir. 1973), Cert. den., 419 U.S. 876, 95 S.Ct. 139, 42 L.Ed.2d 116 (1974); Smith v. Mississippi, 478 F.2d 88 (5th Cir.) Cert. den., 414 U.S. 1113, 94 S.Ct. 844, 38 L.Ed.2d 740 (1973); See also, S. Schulhofer, Jeopardy and Mistrials, 125 U.Pa.L.Rev. 449,...