State v. Imlah

• Decision Date: 06 April 1955
• Citation: 281 P.2d 973,204 Or. 43
• Parties: STATE of Oregon, Respondent, v. Donald Dwaine IMLAH, Appellant.
• Court: Oregon Supreme Court

Page 973

281 P.2d 973

204 Or. 43

STATE of Oregon, Respondent, v. Donald Dwaine IMLAH, Appellant.

Supreme Court of Oregon.

Argued March 2, 1955.

Decided April 6, 1955.

Floyd D. Hamilton, Portland, argued the cause for appellant. With him on the brief was John N. Mohr, Hood River.

Kenneth M. Abraham, Dist. Atty. for Hood River County, Hood River, argued the cause for respondent. With him on the brief was Charles A. Phipps, The Dalles.

Before WARNER, C. J., and TOOZE, ROSSMAN, LUSK, BRAND and LATOURETTE, JJ.

LUSK, Justice.

In this case the defendant, Donald Dwaine Imlah, was found guilty by a jury of murder in the first degree, without recommendation of life imprisonment, and was sentenced to death. He has appealed on the sole ground that the verdict was not the unanimous verdict of the jury.

There are five assignments of error, but they all raise the single question in different ways. There is no claim that the defendant was not fairly tried, or that any error of law in the admission or rejection of evidence, or in the instructions, was committed by the trial judge. Indeed, there is no claim here that the defendant was not guilty as charged. The defendant took the stand and his own testimony would have warranted the verdict. The defense of insanity was interposed, but was not sustained, as the expert witnesses called by the defense would go no farther than to express the opinion that the defendant was a psychopathic personality but that he did know the difference between right and wrong. A psychiatrist called by the state was of a like opinion. Nevertheless, the question of the defendant's guilt and of the degree of his guilt, and of the penalty if he was found guilty of murder in the first degree, was for the jury. And, if it is established by competent evidence and in a manner sanctioned by the law that the verdict rendered and received by the court was not the verdict of all twelve of the jurors, the conviction cannot stand. In view of the judgment of death which hangs over the prisoner, his plea is entitled to receive from this court, and has been given, the most careful and serious consideration.

The record upon which the question arises is as follows: At 2:20 P.M. on Saturday, December 12, 1953, the judge having completed his charge, the jury retired to deliberate upon their verdict. At 5:10 P.M. the jury returned into court and the foreman announced that they had reached a verdict. The judge thereupon read the verdict which found the defendant guilty as charged. It was signed by the foreman. The judge proceeded to poll the jury, asking each of them whether he or she concurred in the verdict. When he put the question to Juror No. 9, Mr. Allen M. Clark, the following occurred:

'The Court: Mr. Clark.

'Juror No. 9: Yes; with reluctance.

'The Court: What was it? State your answer, please?

'Juror No. 9: With reluctance.

'The Court: Answer the question?

'Juror No. 9: With reluctance.

'The Court: Well, do you or do you not concur? I want to know, yes or no?

'Juror No. 9: Yes.'

All the other jurors having answered the question in the affirmative, the court then asked counsel if they were satisfied with the poll, whereupon one of the attorneys for defendant stated that he was not. After a brief colloquy between court and counsel the court directed the jury to retire to the jury room. Further discussion ensued in which the district attorney insisted that the verdict be received, and counsel for the defendant objected. The court concluded the discussion by directing the jury to be returned to the court room and again polled the jury. This time all the jurors except Mr. Clark answered 'Yes' to the question. He answered 'No'. Counsel for defendant then moved the court to discharge the jury on the ground that the juror Clark did not concur in the verdict, and that to continue the deliberations 'may result in forcing a verdict'. The motion was denied. The district attorney moved that the verdict be received. That motion was likewise denied, and the jury retired for further deliberation.

Some two and one-half hours later the jury again returned to the court room with their verdict of 'Guilty as charged.' The jurors were polled, the court stating that he wanted an 'unqualified answer' from them. Each of them answered 'Yes' to the question, and the court received the verdict, filed it with the clerk, and discharged the jury. Thereafter in chambers counsel for the defendant stated to the court that in his opinion Mr. Clark 'very decidedly hesitated before he answered the question 'yes", and moved the court 'to interrogate Mr. Clark to determine if he actually and truly agrees with the verdict', and 'to instruct Mr. Clark that he is not bound to concur in any verdict that the other jurors feel is proper, and that he is at liberty to arrive at any verdict which he deems to be fit and proper.' Counsel for the defendant also renewed his motion to discharge the jury and objected to the court's failure previously to discharge the jury when requested to do so. The court denied the motions.

After sentence had been passed the defendant moved for an order setting aside the verdict and granting a new trial on the grounds of 'irregularity in the proceedings of the jury' and the court's denial of defendant's motion to discharge the jury. The motion proceeds:

'Specifically the irregularity in the proceedings of the jury consists of the failure of the jury to render a valid or any verdict and the error of the Court consisted of the failure of the Court to allow the defendant's motion to discharge the jury after the jury failed to arrive at an unanimous verdict and in requiring the jury to further deliberate thereby forcing and coercing a purported verdict.'

The motion is supported by the affidavit of Mr. John N. Mohr, one of the attorneys for the defendant, but it is not necessary to set forth its contents because it adds nothing to the showing otherwise made.

Upon the hearing of the motion for a new trial counsel for defendant produced an affidavit of the juror Allen M. Clark, sworn to on January 9, 1954, but the court refused to consider it on the ground that it was an attempt by the juror to impeach his own verdict. The court permitted the affidavit to be received as 'an offer of proof.' It is not, however, a part of the bill of exceptions. We set forth the affidavit in full, save for the first part of it, which is merely a recital of the record as given above, down to the point where the jury retired after the second poll:

'That the jury was then sent out for further deliberation; that the other jurors sought to have me change my verdict and brought to bear on me such pressure that I finally agreed to concur in the verdict of the other jurors, even though it was not my verdict, and at approximately 8:30 P.M. of said day the jury again returned to the courtroom and returned a verdict finding the defendant guilty of murder in the first degree without a recommendation for leniency.

'That the Court again polled the jury, and When I was asked whether the verdict returned was my verdict I said 'yes', after hesitation, although it was not my verdict.

'That the verdict returned and filed in said case was not my verdict, is not my verdict, and never has been my verdict.

'That I stated that said verdict was my verdict only because the other jurors brought great pressure to bear upon me and prevailed upon me to agree with their verdict, even though it was not my verdict and even though I did not and do not believe that it was or is a proper verdict in said case.

'That except for the pressure brought to bear upon me by the other jurors, and their insistence that I say that the verdict returned was my verdict, when in fact it was not, I would not have said that the verdict returned was my verdict.

'That I make this affidavit at the request of John N. Mohr and Floyd D. Hamilton, Counsel for defendant.

'That in making this affidavit I have not been threatened or coerced in any manner, and I have not received anything or been promised anything for making this affidavit.

'That I make this affidavit solely because the matters stated herein are true and because I do not think is right that the defendant should be executed, since the verdict returned in said case, and upon which judgment was rendered, was not and is now my verdict.'

Defendant's first assignment of error is based on the court's denial of the motion for a new trial. We are met at once with the question whether the well-established rule that a juror will not be permitted to impeach his own verdict is to be followed in this case. From a strictly procedural standpoint the affidavit is not before the court in any view of the matter, for 'this court has uniformly held that affidavits, or other matters dehors the judgment roll as defined by the statutes, [ORS 18.330] are not part of the record, and cannot be considered on appeal from the judgment unless incorporated into a bill of exceptions'. Shaughnessy v. Kimball, 106 Or. 484, 486-489, 212 P. 483, 484. See, also, Megler v. Tarabochia, 115 Or. 666, 239 P. 829. The State, however, has not urged the objection, and, in view of the gravity of the issue, we consider it our duty to examine the affidavit and the contention based upon it.

In Winters v. Bisaillon, 152 Or. 578, 580, 54 P.2d 1169, 1170, we said:

'* * * Beginning with the case of Cline v. Broy, 1 Or. 89, and proceeding through an unbroken line of decisions to the same effect, this court has held that the affidavits of jurors as to what occurred during their deliberations may not be received to impeach their verdict,' citing Oregon cases.

The line is still unbroken, the latest decision apparently being Parmentier v. Ransom, 179 Or. 17, 25, 169 P.2d 883. The rule has been applied equally in criminal as in civil cases. See, e. g., State v. Wilson, 177 Or. 637, 643-644, 164 P.2d 722.

The defendant argues that in view of the record above stated and the fact that...