Parks v. Cupp

• Decision Date: 23 March 1971
• Parties: Cleo PARKS, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.
• Court: Oregon Court of Appeals

Page 372

481 P.2d 372

5 Or.App. 51

Cleo PARKS, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

Court of Appeals of Oregon, Department 1.

Argued and Submitted Jan. 18, 1971.

Decided Feb. 25, 1971.

Rehearing Denied March 23, 1971.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Jim G. Russell, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

Before SCHWAB, C.J. and LANGTRY and FORT, JJ.

FORT, Judge.

Petitioner's postconviction petition alleges that in 1950 he was convicted by a Klamath County jury of the crime of kidnapping and sentenced to 25 years, and that three members of his jury were at that time active police officers, two being Klamath County deputy sheriffs, and one a Klamath Falls city policeman, who also served as the jury foreman. Attached as an exhibit to the petition is a page of the court journal containing the names of the jurors and the witnesses who testified. One of these witnesses is described thereon as 'sheriff' and another as 'state policeman.' The defendant demurred to the amended petition. The trial court sustained the demurrer and dismissed the petition. Petitioner appeals.

Oregon Constitution, Art. I, § 11, states: 'In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * * *.'

In Garrison v. City of Portland, 2 Or. 123, decided in 1865, the Oregon court said:

'The Code, section 184, Subdivision 4, leaves the question of what is a disqualifying interest to the common law rule, and it must therefore be interpreted in the light of adjudicated cases. The theory of a trial by jury is, that the jurors shall stand absolutely indifferent between the parties litigant; that they shall be as free from interest or prejudice as it is possible for humanity to be. The authorities are numerous and uniform to the effect that an interest in the event of the suit, though small and remote disqualifies the juror * * *.' 2 Or. at 124.

47 Am.Jur.2d 708, Jury § 98 (1969), under the title 'Law enforcement officers as jurors,' discusses the rules which have been applied in various states, as does an Annotation, 'Police officers or other law enforcement officers as qualified grand or petit jurors in criminal cases,' in 140 A.L.R. 1183--88 (1942). In the absence of particular statutory provisions disqualifying them, we conclude it is the general rule that a police officer is not disqualified from jury service on that ground alone, but his employment may well serve in a particular case as a proper basis for challenge on the ground of implied bias. State v. Lewis, 50 Nev. 212, 255 P. 1002 (1927); Clubb v. State, 230 Ark. 688, 326 S.W.2d 816 (1959); The People v. Ward, 32 Ill.2d 253, 204 N.E.2d 741, cert. denied 384 U.S. 1022, 86 S.Ct. 1947, 16 L.Ed.2d 1026 (1965); State v. Jackson, 275 Minn. 462, 147 N.W.2d 689 (1967); ORS 136.220(2)(c). Petitioner here, however, does not allege that he challenged any of the three jurors on that ground.

Petitioner contends that the Sixth Amendment guarantee to an 'impartial jury' in the United States Constitution requires a different rule. In Cavness v. United States, 187 F.2d 719 (9th Cir.), cert. denied 341 U.S. 951, 71 S.Ct. 1019, 95 L.Ed. 1374 (1951), the court considered an identical challenge and said:

'Since the challenge was made upon motion for a new trial, our inquiry upon review is limited to whether being a reserve police officer was 'so obvious a disqualification or so inherently prejudicial as a matter of law * * * to require the court * * * to set the verdict aside and grant a new trial.' Frazier v. United States, 1948, 335 U.S. 497, 513, 69 S.Ct. 201, 210, 93 L.Ed. 187.

'Membership in a police force is no disqualification for jury duty. 28 U.S.C.A. § 1861; Hawaii Rev.Laws 1945, §§ 9791, 9792; United States v. Wood, 1936, 299 U.S. 123, 141, 57 S.Ct. 177, 81 L.Ed. 78. No actual bias or prejudice on the part of the juror was shown, and none will be presumed from the mere fact of being a reserve police officer. Dennis v. United States, 1950, 339 U.S. 162, 171, 70 S.Ct. 519, 94 L.Ed. 734, and see United States v. Wood, supra, 299 U.S. at page 140, note 9, 57 S.Ct. 177.' 187 F.2d at 722--723.

Accordingly, we conclude the fact that there were three police officers on the jury which convicted the petitioner does not alone entitle him to a new trial under either Oregon Constitution, Art. I, § 11, or U.S.Const. Amend. VI.

One count of the petition charges, in addition to the foregoing allegations, incompetence of counsel, because, though requested by the petitioner at the time to do so, he failed and refused to exercise an otherwise unused peremptory challenge to exclude the twelfth juror, who was the last of the three police officers to be impaneled. It further alleges the fact of such employment was established during the Voir dire examination of the juror. ¹

The state urges that this case is governed by Cole v. Cupp, Or.App., 91 Adv.Sh. 535, 475 P.2d 428, Sup.Ct. review denied (1970), and Wheeler v. Cupp, Or.App., 90 Adv.Sh. 1503, 470 P.2d 957, Sup.Ct. review denied (1970). Here the petition expressly alleges that the petitioner requested his counsel to challenge the third police officer impaneled and that counsel failed and refused to do so. No such allegation was present in Cole v. Cupp, supra, nor, in sharp contrast to this case, was there any allegation there of facts from which an inference of prejudice might be drawn.

In Wheeler v. Cupp, supra, we said:

'* * * (I)t is not enough to claim in a post-conviction proceeding that a ruling, duly objected to and preserved on appeal, was of constitutional dimension, when the direct appeal was dismissed upon the motion of his attorney made with the written consent of the defendant. We hold the petitioner must allege facts sufficient to show fraud, coercion or such gross incompetence of counsel as to amount in law to a denial of the right to counsel guaranteed by the Sixth Amendment. No such allegations were contained in the first cause of action. The demurrer was...