State v. Hutchison

• Decision Date: 03 July 1996
• Parties: STATE of Oregon, Respondent, v. Daniel Ray HUTCHISON, Appellant. 9411-37439; CA A89176.
• Court: Oregon Court of Appeals

Page 1105

920 P.2d 1105

142 Or.App. 56

STATE of Oregon, Respondent, v. Daniel Ray HUTCHISON, Appellant.

9411-37439; CA A89176.

Court of Appeals of Oregon.

Argued and Submitted March 5, 1996.

Decided July 3, 1996.

Lawrence Matasar, Portland, argued the cause for appellant. With him on the brief was Hoffman & Matasar.

Janie Burcart, Assistant Attorney General, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

De MUNIZ, Judge.

Defendant appeals his conviction for sodomy in the first degree. ORS 163.405(1). We reverse and remand for a new trial.

At trial, the state presented one witness, defendant's girlfriend, who testified that she saw defendant's penis in the mouth of her two-year-old daughter when defendant was in the shower with the child, supposedly washing the child's hair. Following instructions, the jury deliberated for about two hours, beginning at 3:05 p.m. The next morning, the jury resumed deliberations and, after about an hour and 45 minutes, it sent the trial court a note which stated:

"The jury is divided. We have moved one vote to 8-4 with little likelihood of moving 2 more to find guilty. At what point will we be declared a hung jury?"

About 45 minutes later, over defendant's objection, the trial court read the jury the uniform jury instruction on deadlocked juries. ¹ The jury resumed deliberations and in less than 15 minutes, it returned a verdict of guilty by a vote of 11-1. Defendant assigns error to the instruction, arguing that, when considered in the circumstances of this case, the instruction coerced the jury, in violation of his due process rights.

In State v. Marsh, 260 Or. 416, 490 P.2d 491 (1971), the Supreme Court reviewed case law and treatises on the giving of deadlocked jury instructions. ² The factual context and form of the instruction may result in jury coercion in violation of a defendant's rights to a fair trial and to due process. Id. at 438-439, 490 P.2d 491. The court set out several factors considered by courts in deciding whether such an instruction was coercive: the relative weight of the evidence; the trial judge's knowledge of the jury's vote; and the timing of the instruction and verdict.

A trial court has the discretion to give a deadlocked jury instruction. Marsh, 260 Or. at 443, 490 P.2d 491. However, we review as a question of law whether the instructions resulted in jury coercion.

Defendant relies mainly on the second Marsh factor--the trial court's knowledge of the jury's vote--in arguing that the instruction here was coercive. He urges us to adopt a rule in which it would be reversible error whenever a trial judge gives a deadlocked jury instruction after the judge has been informed of a jury vote that is leaning towards conviction. See Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926) (trial judge may not inquire into numerical division of jury, even if judge does not ask how many jurors are for conviction). The state argues that such a rule would invalidate a useful instruction and

"misses the point: it is the instruction itself, and not the judge's knowledge of the vote, that is the allegedly coercive element, so whether or not he or she knows that the majority are leaning towards conviction does not make the minority for acquittal any more or less a minority. As long as the instruction does not refer to a majority and a minority, and does not put pressure upon the minority to change its vote in order to reach a consensus, requesting that the jury continue does not constitute coercion to convict." (Emphasis state's.)

We decline defendant's invitation to adopt an absolute rule. The Oregon Supreme Court has admonished that the endless variations of deadlocked jury instructions, ³ as well as the factual circumstances, make it difficult, if not impossible for courts to uniformly administer the giving of such instructions. Marsh, 260 Or. at 441, 490 P.2d 491. However, we also reject the state's focus on only the language of the instruction. We do not dispute that, read in isolation, the instruction here was neutral; it did not refer to either a majority or minority position for conviction. However, whether the instruction was coercive depends largely upon the factual context in which the charge is given. Id. at 425, 490 P.2d 491. The setting in which the instruction was given here compromised the instruction's neutrality.

In Marsh, before reading a first deadlocked jury instruction, the judge told the jury that the jury's note indicated " 'that your number stands six for one side and six for the other.' " Id. at 420, 490 P.2d 491. The Supreme Court commented that that vote showed that "there was no 'minority' to be 'coerced' by the first supplemental instruction in this case." Id. at 437, 490 P.2d 491. Here, in contrast, the vote was 8 to 4. There was a minority to be coerced.

Immediately before giving the instruction, the trial court read the jury's note into the record:

"Ladies and gentlemen, I have your message that you gave us at 10:45 this morning. And I might explain [why a different deputy district attorney is present in the court].

"And at 10:45 you sent out a message and I'll simply read it so that it will be in the record.

" 'The jury is divided. We have moved one vote to eight to four with likelihood of moving two more to find guilty. At what point will we be declared a hung jury?'

"I'm going to ask you to deliberate a while longer. At the time you wrote the note, and of course it's now 45 minutes later, but at that time you had deliberated a total of about three hours and 45 minutes. Considering the seriousness...