State v. Lewis
Decision Date | 01 October 1974 |
Parties | STATE of Oregon, Respondent, v. Richard Christopher LEWIS, Appellant. |
Court | Oregon Court of Appeals |
J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and THORNTON and TANZER, JJ.
Defendant was indicted for the crime of burglary in the first degree, ORS 164.225, and rape in the first degree, ORS 163.375. The jury returned a verdict of not guilty to the charge of rape and a verdict of guilty to the charge of burglary. Defendant appeals. The only assignment of error we need reach is the use of an anonymous jury poll, that is, a form of polling by which the individual vote of each juror was not disclosed. We hold this was improper and necessitates a new trial.
During the course of its deliberations, the jury sent out two notes dealing with the subject of a jury poll. The first note asked, The court returned the note with the statement, 'Secret ballot in writing without name disclosure.' The second note stated, 'We meant, will we be polled in the courtroom after we return a verdict (and give each person's vote).' The court responded in open court:
The defendant moved for a mistrial, which motion was denied.
The jury later returned a 10--2 guilty verdict on the burglary charge, and the defendant asked that the jury be polled. The court then polled the jury anonymously. Each juror was given a piece of paper and was asked to write 'Yes' or 'No' in response to the question whether his own verdict was guilty. The ballots were collected and the 10--2 vote confirmed. The defendant made a motion for a new trial, but, again, the motion was denied.
Jury polls in Oregon are provided by ORS 17.355(2):
The right to have the jury polled is absolute. Brooks v. Gladden, 226 Or. 191, 193, 358 P.2d 1055, cert denied 366 U.S. 974, 81 S.Ct. 1942, 6 L.Ed.2d 1263 (1961). Neither the statute nor Oregon case law states explicitly how the jury poll is to be taken although certain terms in the statute, e.g., 'asked' and 'answer,' suggest that it is to be taken orally. In the absence of a direct statement of the method of polling, we must look to the purpose of the jury poll to determine whether an anonymous poll is proper.
ORS 17.355(2), cited above, indicates that one purpose of the poll is to assure that there was a sufficient number of jurors voting for the verdict to enter a judgment. Brooks v. Gladden, supra, while noting that the purpose of the jury poll is unclear, also indicates that one purpose is to make sure that the jury is agreed in the verdict. This purpose is an evidentiary one. The poll provides evidence that the jury, in fact, voted as reported. See Humphries v. District of Columbia, 174 U.S. 190, 194, 19 S.Ct. 637, 43 L.Ed. 944, 12 ADC 122 (1899); Ruffin v. State, 11 Terry 83, 50 Del. 83, 123 A.2d 461 (1956). If the sole purpose of the poll is evidentiary, then the anonymous poll would suffice for it confirms the vote taken in the jury room.
However, we believe that there is an additional purpose, namely, the assumption of individual responsibility by each juror:
'The polling of the jury is a procedure whereby the jurors are asked individually the finding they have arrived at, as denoted by the question posed by the clerk: State v. Cleveland, 6 N.J. 316, 322, 78 A.2d 560, 563, 23 A.L.R.2d 907 (1951).
See, Heinze v. State, 184 Md. 613, 42 A.2d 128, 132 (1945); State v. Boger, 202 N.C. 702, 163 S.E. 877, 878 (1932); 21 Am.Jur.2d 395, Criminal Law § 371; Comments, 6 DePaul L.Rev. 92 (1956). This second purpose is not met by the use of an anonymous poll. If each juror must assume individual responsibility for the verdict, the marking of an anonymous ballot enables him to avoid that responsibility. In effect, it enables the jury to maintain the same secrecy that existed during the deliberations in the jury room.
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