State v. Garrett, A160389

• Decision Date: 18 July 2018
• Docket Number: A160389
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Yasmin Renee GARRETT, Defendant-Appellant.
• Court: Oregon Court of Appeals

292 Or.App. 860
426 P.3d 164

STATE of Oregon, Plaintiff-Respondent,
v.
Yasmin Renee GARRETT, Defendant-Appellant.

A160389

Court of Appeals of Oregon.

Argued and submitted June 29, 2017.
July 18, 2018

Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jacob Brown, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Garrett, Presiding Judge, and Lagesen, Judge, and Edmonds, Senior Judge.

GARRETT, P.J.

292 Or.App. 862

Defendant appeals a judgment of conviction for assaulting a public safety officer. We write to address defendant's first and second assignments of error, and reject her third assignment without discussion. In her first assignment, defendant contends that the trial court erred in issuing a supplemental jury instruction after the jury disclosed during deliberations that it was divided. In her second assignment, defendant challenges the trial court's denial of her motion for a mistrial after the supplemental instruction was issued. We affirm.

Defendant was an inmate at Coffee Creek Correctional Facility. While she was under "suicide watch," she engaged in an altercation with a corrections officer that resulted in an injury to the officer's hand. She was charged with assaulting a public safety officer, ORS 163.208.¹

After closing arguments, the trial court instructed the jury, in part:

"Do not allow anything I've said or done during the course of this trial to suggest that I have formed any opinion about this case.

"* * * * *

426 P.3d 166

"*** [D]o not tell anyone, including me, how many of you are voting not guilty or guilty until you have reached a lawful verdict or have been discharged."

The jury began deliberations around 11:30 a.m., and, at some point, took a lunch break for an unknown amount of time. Sometime before 4:00 p.m.,² the court received the following note from the jury:

292 Or.App. 863

"Your Honor,

"The jury is in a situation where each of us have a strong opinion regarding the second element of the charge (knowledge) beyond a reasonable doubt.

"We agree the actions prior to the struggle were with knowledge and intent. We also agree that she knowingly engaged in a physical struggle.

"We disagree with the fact that she had knowledge that a specific application of force was causing the officer's injury.

"We have 8 jurors in favor of guilt and four in favor of acquittal.

"Could you please provide guidance on our next steps?"

Shortly after 4:00 p.m., the court delivered the following supplemental instruction:

"Please recall that the instructions on Page 2 inform you not to inform anyone, including me, of how you are voting until you have reached a verdict or have been discharged.

"On that basis, I urge you to review all the instructions and remember to view the instructions as a whole. I'm not able to provide further direction. Please continue your deliberation, having considered the instructions.

"And it being a little after 4:00 [p.m.], I—I am informed that my staff will check in on—on the jury before 5:00 p.m. if you have not communicated further."

Defendant objected to the supplemental instruction and moved for a mistrial. The trial court denied the motion. At 5:30 p.m., the jury returned with a unanimous verdict finding defendant guilty.

On appeal, defendant first assigns error to the issuance of the supplemental jury instruction, contending that the additional instruction to a "deadlocked" jury was coercive in violation of her constitutional rights to a fair trial. Defendant separately assigns error to the denial of her motion for a mistrial under two theories: first, that the court's supplemental instruction was coercive, and second, that the jury demonstrated that it was unable to follow the court's instructions when it improperly revealed its voting

292 Or.App. 864

posture to the court. See State v. Arreola , 250 Or. App. 496, 501-03, 281 P.3d 634, rev. den. , 353 Or. 103, 295 P.3d 50 (2012) (defendant was denied a fair trial because the case presented an overwhelming probability that the jury failed to follow instructions).

We review for legal error whether a supplemental instruction³ resulted in jury coercion and violated a defendant's constitutional rights to a fair trial and due process. State v. Hutchison , 142 Or. App. 56, 59, 920 P.2d 1105, rev. den. , 324 Or. 395, 927 P.2d 600 (1996). If we conclude that defendant's rights were violated, then we must reverse and remand for a new trial. Id. at 61, 920 P.2d 1105. Defendant's appeal of the denial of her motion for a mistrial is reviewed for abuse of discretion. State v. Smith , 310 Or. 1, 24, 791 P.2d 836 (1990).

As a general matter, trial courts have discretion as to whether, and how, to issue

426 P.3d 167

supplemental instructions after deliberations have begun. State v. Marsh , 260 Or. 416, 443, 490 P.2d 491 (1971), cert. den. , 406 US 974, 92 S.Ct. 2420, 32 L.Ed.2d 674 (1972). Defendant's first assignment of error concerns what is known as a "deadlocked" jury instruction.⁴ The "central idea" behind deadlocked jury instructions is to encourage jurors to reach agreement by reminding them of their duty to decide the case and also by encouraging them to remain open to other jurors' opinions without abandoning their own conscientiously held opinions for the sake of reaching a verdict. See id. at 423, 490 P.2d 491. In Marsh , the Supreme Court observed that even "balanced" deadlocked jury instructions (expressly directed at neither the majority nor minority voting factions of a jury) carry "a substantial potential for coercion" because such instructions risk influencing jurors in the minority to

292 Or.App. 865

abandon their conscientiously held opinions and vote with the majority for the sake of reaching a verdict. Id. at 441-44, 490 P.2d 491. We consider both the form of the instruction and the factual context to determine whether the instruction was coercive. See id. at 425-29, 490 P.2d 491.

With respect to the wording of the instruction, the probability of coercion increases when the instruction: (1) encourages the minority of the jury to reconsider its views in light of the majority's position; (2) is not balanced by an emphasis on adhering to conscientiously held opinions; (3) refers to the necessity or expense of a retrial; and, most of all, (4) informs the jury that it has an obligation to continue deliberating until it reaches a verdict or that the court will not declare a mistrial as the result of a deadlocked jury. See id. at 425-27, 490 P.2d 491.

With respect to the factual context in which the instruction is given, we may consider: (1) the relative weight of the evidence,⁵ (2) the jury's knowledge that the trial court was aware of the numerical split and which way the jury was leaning when the court gave the instruction,⁶ and (3) the amount of time that the jury deliberated before and after the instruction was issued. See id. at 428-29, 490 P.2d 491.

In this case, the trial court's supplemental instruction did not include the kind of language that Marsh considered to be coercive. The court did not implore the jury to reach a verdict, did not encourage any jurors to reconsider their positions, and said nothing about avoiding the time and expense of retrial. See id. at 435-37, 490 P.2d 491 ("The reference to a retrial if the jury did not reach a verdict was improper ***. Also improper was the statement that ‘it is incumbent upon

...