Brooks v. Gladden

Decision Date25 January 1961
Citation358 P.2d 1055,226 Or. 191
PartiesToliver Carlton BROOKS, Respondent, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Appellant.
CourtOregon Supreme Court

Robert G. Danielson, Asst. Atty. Gen., argued the cause for appellant. With him on the brief was Robert Y. Thornton, Atty. Gen.

Thomas B. Brand, Salem, argued the cause and submitted a brief for respondent.


O'CONNELL, Justice.

This proceeding was initiated in the circuit court for Marion county under the Post-Conviction Hearing Act (ORS 138.510-138.680). Plaintiff was convicted in the circuit court for Lane county for the crime of uttering a forged bank check. He was sentenced to a term of 20 years. When the verdict of guilty was returned the trial judge announced it in open court; at that time plaintiff requested that the jury be polled. The trial judge denied the request for the reason that the ten members of the jury who had voted for conviction had signed the verdict form and that, therefore, there was no reason to poll the jury. Plaintiff did not appeal from the judgment of conviction.

In the post-conviction proceeding the circuit court for Marion county set aside the conviction and sentence and remanded plaintiff to the custody of the sheriff of Lane county for a new trial.

ORS 17.355(2) provides, in part:

'* * * (2) When a verdict is given, and before it is filed, the jury may be polled on the request of either party, for which purpose each shall be asked whether it is his verdict * * *.'

Although the statute is cast in language indicating that the polling of the jury is discretionary with the trial judge, it is firmly established by our previous decisions that the right to have the jury polled is absolute. Rodgers Insurance Agency v. Andersen Machinery, 1957, 211 Or. 459, 316 P.2d 497; Freeman v. Wentworth & Irwin, Inc., 1932, 139 Or. 1, 7 P.2d 796.

The state concedes that prejudicial error was committed and that a right of appeal from the judgment of conviction arose when the trial judge denied plaintiff's request to have the jury polled. The state contends, however, that the plaintiff's sole remedy for this error is by way of appeal and that post-conviction relief is not available to him.

Plaintiff's petition for post-conviction relief attacks the judgment of conviction on the ground that it is void. He charges:

'My imprisonment, incarceration and restraint was and is illegal on the ground and for the reason that there were substantial denials in the proceedings resulting in my conviction of my rights under the Constitution of the United States and the Constitution of the state of Oregon, which rendered the conviction void.'

Among the 'substantial denials in the proceedings' recited in the petition is the refusal of the trial judge to poll the jury. This is the only ground we need consider in our inquiry as to the validity of the judgment. Relief is available under the Post-Conviction Hearing Act (ORS 138.510-138.680) upon the following grounds:

'138.530 When relief must be granted; executive clemency or pardon powers and original jurisdiction of Supreme Court in habeas corpus not affected. (1) Post-conviction relief pursuant to ORS 138.510 to 138.680 shall be granted by the court when one or more of the following grounds is established by the petitioner:

'(a) A substantial denial in the proceedings resulting in petitioner's conviction, or in the appellant review thereof, of petitioner's rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.

'(b) Lack of jurisdiction of the court to impose the judgment rendered upon petitioner's conviction.

'(c) Sentence in excess of, or otherwise not in accordance with, the sentence authorized by law for the crime of which petitioner was convicted; or unconstitutionality of such sentence.

'(d) Unconstitutionality of the statute making criminal the acts for which petitioner was convicted.'

Plaintiff's prayer for relief is based upon and confined to ORS 138.530(1)(a), the petition alleging in effect that his conviction was rendered void as a result of the trial court's refusal to poll the jury.

The sole question on this appeal, then, is whether, under the circumstances recited, plaintiff's constitutional rights were denied. More specifically, the question is whether the right of the accused to poll the jury is so essential in assuring him a fair trial that the refusal to permit the poll is a 'substantial denial' of a fundamental right protected by the Constitutions of Oregon or of the United States. Our answer to this question will depend upon the scope of the relief contemplated by ORS 138.530(1)(a) and the character of the right which ORS 17.355(2) affords the accused.

The scope of subsection (1)(a), ORS 138.530 can best be described in relation to subsection (1)(b). The latter subsection states the ground for relief in habeas corpus as that extraordinary remedy was known at common law. The scope of the writ of habeas corpus was expanded, however, by Congress and the United States Supreme Court (see, Darr v. Burford, 1950, 339 U.S. 200, 221, 70 S.Ct. 587, 94 L.Ed. 761, dissenting opinion; Hawk v. Olson, 1945, 326 U.S. 271, 274-275, 66 S.Ct. 116, 90 L.Ed. 61), to afford relief where the trial court had jurisdiction initially but lost it by departing from due process of law, thus rendering the judgment void. United States v. Hayman, 1952, 342 U.S. 205, 210-212, 72 S.Ct. 263, 96 L.Ed. 232; Johnson v. Zerbst, 1938, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461, 146, A.L.R. 357; Frank v. Mangum, 1915, 237 U.S. 309, 330-331, 336, 35 S.Ct. 582, 59 L.Ed. 969, and see dissenting opinion by Justice Holmes, 237 U.S. 345, 346, et seq., 35 S.Ct. 594. The function of the writ was similarly extended by our own cases to reach violations of the Oregon Constitution. Huffman v. Alexander, 1953, 197 Or. 283, 313-314, 251 P.2d 87, 253 P.2d 289.

Subsection (1)(a) of ORS 138.530 states in substance the principle announced in these latter cases, providing a post-conviction remedy where there is a substantial denial of rights protected by either the federal or state constitutions. Petitioner, to qualify for post-conviction relief on this ground, has the burden of showing that he has been denied due process of law. Hawk v. Olson, supra; Smallman v. Gladden, 1956, 206 Or. 262, 269, 291 P.2d 749; The People v. Alden, 1959, 15 Ill.2d 498, 502, 155 N.E.2d 617. Since subsection (1)(a) embodies as a condition to post-conviction relief what has been deemed to constitute the ground for relief under the writ of habeas corpus in its expanded form, we may interpret subsection (1)(a) in light of the extended remedy afforded under habeas corpus prior to the enactment of the Post-Conviction Hearing Act. However, it should be noted that the expansion of the writ has not converted it into a method of appealing from a judgment of conviction. McNally v. Hill, Warden, 1934, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238; Note, 24 Iowa L.Rev. 170 (1938). A review of the cases in which the writ of habeas corpus was sought discloses that relief is granted in a great variety of situations. See, for example, Kwock Jan Fat v. White, 1920, 253 U.S. 454, 40 S.Ct. 566, 64 L.Ed. 1010 (evidence suppressed); Ex parte Bain, 1887, 121 U.S. 1, 12-13, 7 S.Ct. 781, 30 L.Ed. 849 (indictment amended without resubmission to grand jury); Moore v. Dempsey, 1923, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (trial allegedly held under mob pressure and community coercion); Wade v. Mayo, 1948, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647 (refusal to appoint counsel for youthful defendant in non-capital case); Waley v. Johnston, 1942, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (plea of guilty allegedly coerced); Smith v. O'Grady, 1941, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859 (plea of guilty allegedly obtained by trick); Hawk v. Olson, supra (defendant allegedly denied counsel after arraignment and before trial); Pyle v. State of Kansas, 1942, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (allegations of use of perjured testimony and suppression of evidence); Commonwealth ex rel. Sheeler v. Burke, 1951, 367 Pa. 152, 79 A.2d 654 (conviction based upon coerced confession or self-incriminating testimony).

Relief has been granted in similar cases decided under the Illinois Post-Conviction Hearing Act, Smith-Hurd Ann.St., ch. 38, §§ 826-832. McKeag v. People, 1956, 7 Ill.2d 586, 131 N.E.2d 517 (plea of guilty induced by promise of prosecutor to recommend light sentence); People v. Morris, 1954, 3 Ill.2d 437, 121 N.E.2d 810 (incompetency of appointed counsel); People v. Wakat, 1953, 415 Ill. 610, 114 N.E.2d 706 (coerced confession and perjured testimony); People v. Evans, 1952, 412 Ill. 616, 107 N.E.2d 839 (confession allegedly obtained by coercion and promises); People v. Reeves, 1952, 412 Ill. 555, 107 N.E.2d 861 (incompetency of appointed counsel); People v. Jennings, 1952, 411 Ill. 21, 102 N.E.2d 824 (coerced confession and perjured testimony).

On the other hand: 'The writ of habeas corpus is not the equivalent of an appeal or writ of error. It is not a proceeding to correct errors which may have occurred in the trial of the case below. It is an attack directly upon the validity of the judgment, and, as has been frequently said, it cannot be transformed into a writ of error.' Whitney v. Dick, 1906, 202 U.S. 132, 136, 26 S.Ct. 584, 586, 50 L.Ed. 963. Smallman v. Gladden, supra. Thus the writ is not available where the defendant has received a sentence of both fine and imprisonment, although the two punishments are alternative rather than cumulative, Ex parte Mooney, 1885, 26 W.Va. 36, 53 Am.Rep. 59; where incompetent evidence has been admitted in a fair hearing, Tisi v. Tod, 1924, 264 U.S. 131, 44 S.Ct. 260, 68 L.Ed....

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