State v. Gardner

• Decision Date: 16 May 1962
• Citation: 371 P.2d 558,230 Or. 569
• Parties: STATE of Oregon, Respondent, v. Donald Ray GARDNER, Appellant.
• Court: Oregon Supreme Court

Page 558

371 P.2d 558

230 Or. 569

STATE of Oregon, Respondent, v. Donald Ray GARDNER, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted March 6, 1962.

Decided May 16, 1962.

Marvin E. Hansen, Eugene, argued the cause for appellant. With him on the briefs were Johnson, Johnson & Harrang, Eugene.

John W. Osburn, Deputy Dist. Atty., Eugene, argued the cause for respondent. With him on the brief was William F. Frye, Dist. Atty., for Lane County.

Before McALLISTER, C. J., and WARNER, SLOAN and O'CONNELL, JJ.

O'CONNELL, Justice.

Defendant appeals from a judgment of conviction for the crime of entering a motor vehicle with the intent to steal. The appeal is based upon the alleged error of the trial court in refusing to grant a new trial which was requested on the ground that the misconduct of a juror during the jury's deliberation resulted in an unfair trial.

Zachary Gilpin, the state's principal witness, testified that he saw the defendant remove automobile tires from the back of a pick-up truck. He described in detail the circumstances under which the tires were stolen. This testimony was contradicted by defendant and two other witnesses called by him. During the course of the trial and in the jury room when the jury was deliberating, juror Charmalee Schram commented upon the credibility of witness Gilpin. Defendant produced the affidavits of two members of the jury which, in substance, stated that juror Schram had stated that she was acquainted with witness Gilpin, that he was a truthful boy and that anyone who would make a statement contrary to that made by Gilpin would not be telling the truth. Juror Schram also made the statement that 'They certainly have cleaned up the Gardner boy [defendant]. He has a haircut and a job.' Defendant moved for a new trial contending that the foregoing statements made by juror Schram constituted misconduct which resulted in depriving defendant of a fair trial. The motion was denied and defendant has appealed from the judgment of conviction.

We have repeatedly said that affidavits of jurors as to what occurred during their deliberations will not be received to impeach their verdict. ¹ We have, however, held that a verdict may be impeached by affidavits that a juror made an unauthorized inspection of the premises involved in the action. ² In some of the latter cases the affidavits not only described the juror's misconduct outside of the jury room (i. e., in viewing the premsies), but also his misconduct in communicating to other jurors during the course of their deliberations his observations relating to the premises. ³ Affidavits have also been received in other cases. ⁴

It is seen then, that there is no absolute rule in this state prohibiting the use of a juror's affidavit to impeach a verdict; the affidavit may be considered but its significance in determining whether a new trial will be ordered is for the court to decide in each case. In each case the court must choose between two conflicting interests; on one hand the interest of the individual who claims that the misconduct deprived him of a fair trial, and on the other hand the interest of the public in protecting the verdict from attack. The choice is described in Kollert v. Cundiff, 50 Cal.2d 768, 773, 329 P.2d 897, 900 (1958), as follows:

'* * * The problem involves the balancing of two conflicting policies. It is, of course, necessary to prevent instability of verdicts, fraud, and harassment of jurors, and, on the other hand, it is desirable to give the losing party relief from wrongful conduct by the jury.' ⁵

Since, after weighing these competing interests, we do in fact permit a verdict to be impeached under some circumstances, it is better that we dispense with the 'consecrated rubric' that a juror may not impeach his verdict and that we state the rule in its accurate form by declaring that a verdict is impeachable if justice demands that it be set aside. ⁶ In doing so we need not depart from the view taken in State of Oregon v. Imlah, 204 Or. 43, 54-55, 281 P.2d 973, 979 (1955) that verdict should not be set aside except in those cases of 'utmost gravity and importance' where it is 'manifest that enforcement of the rule would violate 'the plainest principles of justice' [McDonald v. Pless, 238 U.S. 264, 269, 55 S.Ct. 783, 59 L.Ed. 1300 [1915].' ⁷

The principal reasons for strictly limiting the use of evidence of a juror's misconduct are set out in the Imlah case. The overriding consideration is the necessity of giving finality to litigation. ⁸ If verdicts could be readily set aside there would be an open invitation to disappointed litigants and their counsel to contest the verdict. The invitation would carry in its wake the temptation to tamper with jurors and it would open the way for pressures and fraudulent practices to induce members of the jury to repudiate their decisions. ^{9 9} We wish to emphasize therefore, that although we recognize that evidence of a juror's misconduct may be used, the verdict will stand unless the evidence clearly establishes that the misconduct constitutes a serious violation of the juror's duty and deprives complainant of a fair trial. There is no way of stating the principle in more definite form; the limits must be set on a case-by-case basis. ¹⁰

One limitation can definitely be set. The limitation is best expressed in Rule 41 of the Uniform Rules of Evidence, as follows:

'Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.' Handbook of the National Conference of Commissioners on Uniform State Laws, p. 188 (1953). ¹¹

The burden is upon the complainant to show by clear and convincing evidence that he was deprived of a fair trial as a result of the misconduct. ¹²

The question before us is, then, whether juror Schram's misconduct was of such a serious nature as to deprive defendant of a fair trial. A comparison of the misconduct in this case with that involved in other adjudicated cases where verdicts have been attacked will afford some basis for judgment. In our own cases we have sustained verdicts where the juror's misconduct was of a serious character. ¹³ Cases from other jurisdictions tend, for the most part, to reflect this same judicial attitude of keeping within narrow limits the type of conduct which will warrant disturbing the verdict. ¹⁴

The fact that juror Schram was acquainted with witness Gilpin and was convinced of his honesty certainly did not constitute grounds for setting aside the verdict. In many, if not in most, of the communities in this and other states jurors frequently listen to witnesses known to them and concerning whom they have formed opinions, favorable or unfavorable. In the smaller communities it would be virtually impossible to draw a jury entirely free from the various influences which grow out of the jurors' knowledge and appraisal of the parties or their witnesses. The jury is not such a delicate instrument of justice that it can be expected to function only when wholly free from these influences.

In the present case Mrs. Schram's evaluation of Gilpin's credibility was communicated to the other jurors. This she should not have done. But we do not regard this misconduct as a violation of 'the plainest principles of justice,' adopting the test stated in State of Oregon v. Imlah, supra, and McDonald v. Pless, supra. Since jurors are instructed that they are the judges of the credibility of witnesses it is reasonable to assume that they will exchange their opinions as to the credibility of particular witnesses. The expression by one juror of the strong conviction that a witness was telling the truth was, after all, only a statement of one juror's opinion supported by nothing more than that juror's impression formed through an acquaintance with the witness. But for that acquaintance, each of the jurors had the same opportunity to observe Gilpin on the stand and to form an opinion as to his credibility. It is not, then, as if the only source of the jurors' judgment was found in Mrs. Schram's communication of her opinion.

We are of the opinion that defendant received a fair trial. The judgment must, therefore, be affirmed.

McALLISTER, C. J., concurs in the result.

1 State v. Gordon, 208 Or. 455, 302 P.2d 214 (1956) (while in jury room one juror stated that the defendant had been convicted of a similar crime in California); State of Oregon v. Imlah, 204 Or. 43, 281 P.2d 973 (1955) (juror's affidavit indicated that he concurred in the verdict only because of 'pressure' from the other jurors); State v. Morrow, 158 Or. 412, 75 P.2d 737, 76 P.2d 971 (1938) (osteopath-juror stated that it was her professional opinion that defendant was father of a child in prosecution for statutory rape); Winters v. Bisaillon, 152 Or. 578, 54 P.2d 1169 (1936) (jurors' affidavits indicated that jury had disregarded instructions given by the trial judge); Schmalz v. Arnwine, 118 Or. 300, 246 P. 718 (1926) (juror's affidavit showing computation of the amount of the total verdict broken down into the amount which the jury allocated for each item); State v. Ausplund, 86 Or. 121, 167 P. 1019 (1917), rehearing denied 87 Or. 649, 171 P. 395 (1918) (in trial for manslaughter committed while producing an abortion, juror's affidavit indicated that one juror had told other juror that defendant had performed criminal abortions on previous occasions); Hinkel v. Oregon Chair Co., 80 Or. 404, 156 P. 438, 157 P. 789 (1916) (affidavit disclosed statements made by one juror with reference to a former injury of plaintiff); State v. Smith, 43 Or. 109, 71 P. 973 (1903) (juror's affidavit indicated his verdict resulted from a feeling that if he delayed the proceedings further the delay...