State v. Rathbun

CourtSupreme Court of Oregon
Writing for the CourtLENT
Citation600 P.2d 392,287 Or. 421
Decision Date25 September 1979
PartiesSTATE of Oregon, Respondent, v. Neil Clair RATHBUN, Petitioner. TC C 77-06-07805; CA 10265; SC 26021.

Page 392

600 P.2d 392
287 Or. 421
STATE of Oregon, Respondent,
v.
Neil Clair RATHBUN, Petitioner.
TC C 77-06-07805; CA 10265; SC 26021.
Supreme Court of Oregon, In Banc.
Argued and Submitted July 2, 1979.
Decided Sept. 25, 1979.

Page 393

[287 Or. 422] Lois J. Portnoy, Portland, argued the cause for petitioner. With her on the brief was Stephen A. Houze, Portland.

Robert C. Cannon, Salem, argued the cause for respondent. On the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and Donald L. Paillette, Asst. Atty. Gen., Salem.

Jeffrey L. Rogers, American Civil Liberties Foundation of Oregon, Inc., Portland, filed a brief of amicus curiae in the Court of Appeals.

[287 Or. 423] LENT, Justice.

The issue in this case is whether a mistrial resulting from a bailiff's misconduct is a bar to retrial of the defendant. We find it is in the circumstances of this case.

The record discloses that trial of defendant on charges of first degree robbery (armed with a firearm) commenced on Tuesday, October 4, 1977, and that the case was submitted to the jury at midday on Thursday, October 6. The jury was unable to agree by nighttime and was sequestered for the night under the charge of the bailiff. The bailiff took the jury to breakfast on the morning of Friday, October 7, and thereafter the jury returned to the jury room and deliberated until late forenoon. The jury then informed the trial judge that it was at an impasse. Defendant's motion for a mistrial was allowed. According to a stipulation of facts two of the jurors on that evening (which was the last day of the jury term) went to the district attorney and advised him "about comments which were made by the court's bailiff to the jury during recesses in the trial and during the deliberations." Six days later in the presence of counsel the jurors were individually interrogated by another circuit judge concerning the bailiff's conduct and its effect on the jurors.

Thereafter on the basis of the stipulation and the transcript of interrogation defendant moved to dismiss the case on grounds of former jeopardy, ORS 135.470. Yet another circuit judge heard the motion on January 9, 1978, and ordered that the motion for dismissal be allowed and that the indictment be dismissed. The state appealed, ORS 138.060(1), and the Court of Appeals reversed, 37 Or.App. 259, 586 P.2d 1136 (1978). We allowed defendant's petition for review, 286 Or. 449 (1979).

The state argues that there is no causal relationship between the concededly improper remarks of the bailiff and the inability of the jury to agree upon a [287 Or. 424] verdict. We must dispose of that matter, for otherwise what we posed as the issue at the outset of this opinion is flawed.

The transcript of proceedings upon judicial interrogation of the jurors discloses that eight of the jurors overheard at least part of the bailiff's remarks concerning sentencing habits of the trial judge where a gun is involved, the range of sentences for robbery and the knowledge of the criminal element of society to be realized by riding in a patrol car with an officer. There is evidence that the bailiff's remarks were made on several occasions during the course of the trial, and one juror left the jury room during one recess to escape the bailiff's discourse upon the subjects above noted. It was stipulated by the parties that the bailiff was experienced and had had

Page 394

charge of juries on numerous criminal cases and that the trial judge had not ordered the bailiff to make these communications to the jury. (The state concedes that these remarks were "improper.") Seven of the eight denied that the remarks influenced his or her vote, but two of the jurors opined that the remarks were very prejudicial to the defendant's cause and might have influenced other jurors. One juror conceded that she might have been influenced by the remarks. She also testified that "it got pretty hostile" during deliberations and that other jurors accused her of just being "young and innocent" and suggested that she should go out and ride in a police car to get an insight "on those things." The record also discloses that the jury was particularly concerned with the weight to be given to eyewitness evidence and the matter of reasonable doubt as to defendant's guilt.

The motion judge found that the bailiff's conduct was not attributable to mere negligence. He found rather that she was motivated by "bad faith or prejudice" against the defendant. 1 Moreover he found that she violated her oath of office and her statutory duty. He apparently had reference to ORS 17.305:

[287 Or. 425] "After hearing the charge, the jury may either decide in the jury box or retire for deliberation. If they retire, they must be kept together in a room provided for them, or some other convenient place, under the charge of one or more officers, until they agree upon their verdict or are discharged by the court. The officer shall, to the utmost of his ability, keep the jury together, separate from other persons, without drink, except water, and without food, except ordered by the court. He must not suffer any communication to be made to them, nor make any himself, unless by the order of the court, except to ask them if they have agreed upon their verdict, and he shall not, before the verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed on. Before any officer takes charge of a jury, this section shall be read to him, and he shall be then sworn to conduct himself according to its provisions to the utmost of his ability."

There is evidence from which he could have so found; therefore, we treat those matters as established. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968).

The state argues, however, that there is no causal relationship between the bailiff's misconduct and the mistrial, because each and every juror upon interrogation denied being influenced by the bailiff's remarks. In State v. Kristich, 226 Or. 240, 251-253, 359 P.2d 1106 (1961) we rejected the rule that to obtain a new trial the defendant must show prejudice against him resulting from a bailiff's misconduct of the kind with which we here deal and, having done so, said, 226 Or. at 252-253, 359 P.2d at 1112:

"Our statute, ORS 17.305, specifically enjoins the bailiff from making any communication with the jury, except to inquire if they have reached a verdict. The Supreme Court of Wisconsin has held in State v. Cotter, 1952, 262 Wis. 168, 54 N.W.2d 43, 41 A.L.R.2d 222, a similar case to this one, that prejudice will be presumed and a new trial ordered when it appears that the bailiff has improperly communicated to the jury. The same rule has been followed in Georgia. King v. The State, 1955, 92 Ga.App. 616, 89 S.E.2d 585. [287 Or. 426] Cases are cited by the state from other jurisdictions which hold that a new trial will not be granted unless prejudice is shown to the defendant. The state would have us hold that defendant must show prejudice. We think that is not the best rule and has not been followed by this court. As recently as October 26, 1960, in Thomas v. Dad's Root Beer, 225 Or. 166, 356 P.2d 418 (1960), this court, speaking by JUSTICE HOWELL, said: 'Under the circumstances, therefore, we cannot say that it is clear that the "misconduct could not and did not influence the verdict." (citing cases)'

"In a felony case, particularly where the penalty, as here, can be of long duration,

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the greatest of care should be exercised to obtain a fair trial. The rule should be inviolate that the jury can consider only such evidence and instructions that it receives in the courtroom. A court cannot attempt to speculate by some method of mind reading to know whether the bailiff's conduct actually influenced the mental process of any of the jurors. Admittedly, the statements made were improper. That some of the jurors thought it was said in a humorous vein was immaterial. The same issue was made in the Wisconsin and Georgia cases. Humor can influence as readily as seriousness. When the members of the jury were in obvious doubt it is hard to say that the false belief that they had to reach a verdict...

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22 practice notes
  • State v. Kennedy
    • United States
    • Supreme Court of Oregon
    • 6 Julio 1983
    ...that Oregon law concerning retrials after prosecutor-induced mistrials, a question that first reached this court in State v. Rathbun, 287 Or. 421, 600 P.2d 392 (1979), is identical to the view of the federal double jeopardy clause expressed by the majority of the Supreme Court in this case.......
  • The City of Massillon v. Mark A. Kohler, 81-LW-2380
    • United States
    • Ohio Court of Appeals
    • 21 Octubre 1981
    ...291 NC 528, 231 SE2d 644; Johnson v State (Okla Crim) 550 P2d 984; State v Rathbun, 37 Or App 259, 586 P2d 1136, revd on other grounds 287 Or 421, 600 P2d 392; Commonwealth v Potter, 478 Pa 251, 386 A2d 918; State v Coleman, 54 SC 282, 32 SE 406; DeYoung v State, 160 Tex Crim 628, 274 SW2d ......
  • Hagez v. State, No. 902
    • United States
    • Court of Special Appeals of Maryland
    • 3 Abril 2000
    ...600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Accord, State v. Rathbun, 37 Or.App. 259, 586 P.2d 1136 (1978), reversed on other grounds, 287 Or. 421, 600 P.2d 392 Id. at 949 (parallel citations omitted). The Oregon Court of Appeals considered the prosecutor's comment that the defendant wa......
  • Oregon v. Kennedy, No. 80-1991
    • United States
    • United States Supreme Court
    • 24 Mayo 1982
    ...[96 S.Ct. 1075, 1081, 47 L.Ed.2d 267] (1976). Accord, State v. Rathbun, 37 Or.App. 259, 586 P.2d 1136 (1978), reversed on other grounds, 287 Or. 421, [600] P.2d [392] [329] (1979)." Id., at 417-418, 619 P.2d, at 949. The Court of Appeals accepted the trial court's finding that it was not th......
  • Request a trial to view additional results
22 cases
  • State v. Kennedy
    • United States
    • Supreme Court of Oregon
    • 6 Julio 1983
    ...that Oregon law concerning retrials after prosecutor-induced mistrials, a question that first reached this court in State v. Rathbun, 287 Or. 421, 600 P.2d 392 (1979), is identical to the view of the federal double jeopardy clause expressed by the majority of the Supreme Court in this case.......
  • The City of Massillon v. Mark A. Kohler, 81-LW-2380
    • United States
    • Ohio Court of Appeals
    • 21 Octubre 1981
    ...291 NC 528, 231 SE2d 644; Johnson v State (Okla Crim) 550 P2d 984; State v Rathbun, 37 Or App 259, 586 P2d 1136, revd on other grounds 287 Or 421, 600 P2d 392; Commonwealth v Potter, 478 Pa 251, 386 A2d 918; State v Coleman, 54 SC 282, 32 SE 406; DeYoung v State, 160 Tex Crim 628, 274 SW2d ......
  • Hagez v. State, No. 902
    • United States
    • Court of Special Appeals of Maryland
    • 3 Abril 2000
    ...600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Accord, State v. Rathbun, 37 Or.App. 259, 586 P.2d 1136 (1978), reversed on other grounds, 287 Or. 421, 600 P.2d 392 Id. at 949 (parallel citations omitted). The Oregon Court of Appeals considered the prosecutor's comment that the defendant wa......
  • Oregon v. Kennedy, No. 80-1991
    • United States
    • United States Supreme Court
    • 24 Mayo 1982
    ...[96 S.Ct. 1075, 1081, 47 L.Ed.2d 267] (1976). Accord, State v. Rathbun, 37 Or.App. 259, 586 P.2d 1136 (1978), reversed on other grounds, 287 Or. 421, [600] P.2d [392] [329] (1979)." Id., at 417-418, 619 P.2d, at 949. The Court of Appeals accepted the trial court's finding that it was not th......
  • Request a trial to view additional results

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