State v. Sundberg

• Citation: 247 P.3d 1213,349 Or. 608
• Decision Date: 17 February 2011
• Docket Number: (CC 05102194; CA A135487; SC S058116).
• Parties: STATE of Oregon, Respondent on Review,v.Arick Titus SUNDBERG, Petitioner on Review.
• Court: Supreme Court of Oregon

349 Or. 608

247 P.3d 1213

STATE of Oregon, Respondent on Review,

v.Arick Titus SUNDBERG, Petitioner on Review.

(CC 05102194; CA A135487; SC S058116).

Supreme Court of Oregon.

Argued and Submitted Sept. 15, 2010.Decided Feb. 17, 2011.

On review from the Court of Appeals.^*Dennis N. Balske, Portland, argued the cause and filed the brief for petitioner on review.Janet A. Klapstein, Assistant Attorney General, argued the cause and filed the brief for respondent on review. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.Walter J. Ledesma, Woodburn, filed a brief for amicus curiae Oregon Trial Lawyers Association.Before DE MUNIZ, Chief Justice, and DURHAM, BALMER, KISTLER, WALTERS, and LINDER, Justices.^**BALMER, J.

This criminal case requires us to determine the circumstances, if any, that permit a trial court to empanel an anonymous jury.¹ Defendant was charged with several sex crimes. At the outset of trial, the trial court ruled that the names and certain other personal information of prospective jurors would not be disclosed to the parties, counsel, or the public. A jury was selected and empanelled, and the jury ultimately found defendant guilty of first-degree sexual abuse ( ORS 163.427) and attempted unlawful sexual penetration ( ORS 161.405(2)(b); ORS 163.411). Although defendant had objected to the use of anonymous prospective jurors at the time of jury selection, the Court of Appeals held that his later actions constituted a waiver of that objection and affirmed defendant's conviction. State v. Sundberg, 233 Or.App. 77, 225 P.3d 89 (2009). For the reasons set out below, we conclude that defendant properly preserved, and did not waive, his objection to the anonymous jury. We further conclude that the trial court erred in using an anonymous jury without determining that withholding the names of jurors was justified on security or other grounds and without taking any steps to mitigate possible prejudice to defendant.

FACTS AND PROCEDURAL HISTORY

We take the facts from the Court of Appeals opinion and the record. In reviewing a judgment of conviction, we state the facts in the light most favorable to the state. See, e.g., State v. Gibson, 338 Or. 560, 562, 113 P.3d 423, cert. den., 546 U.S. 1044, 126 S.Ct. 760, 163 L.Ed.2d 591 (2005) (so stating).

In August 2005, the victim, along with her mother, siblings, and a friend of her mother's, visited defendant, who was the victim's uncle. The victim was 10 years old at the time. While in defendant's yard, defendant gave the victim a piggyback ride, during which he placed his fingers inside the victim's underwear and touched the victim in a sexual manner. The victim reported defendant's behavior to her stepmother, who contacted the police. As noted, defendant was indicted for various sex abuse crimes and, after a jury trial, was convicted of attempted sexual penetration and sexual abuse.

On the day of defendant's trial, another criminal trial was being held in another courtroom in the Linn County Courthouse. There were insufficient jurors at the courthouse that day to conduct voir dire simultaneously for both defendant's trial and the other trial. The two trial judges decided that voir dire for the other trial would be conducted in the morning in the courtroom where the other case was being tried, and then, in the afternoon, jurors who had not been selected for service in the other case would become part of the jury pool for defendant's trial. During voir dire in the other criminal case, prospective jurors revealed their names, addresses, and places of employment as part of the jury selection process.

During preliminary proceedings in defendant's trial, and before voir dire, the trial court told defense counsel that the court intended to use juror numbers instead of names. Defense counsel stated that this procedure was new to him but raised no objection. The court then recessed for approximately five hours while voir dire was completed in the other case. That afternoon, at the start of voir dire in defendant's case, defense counsel stated that he had been unaware that he would not receive jurors' names at all until “just a little bit ago.” Rather, defense counsel said that he thought that the trial court's earlier comments meant only that the jurors would be called by number and that he would still receive a list of the jurors' names. Defense counsel objected to the court's procedure, stating that he was concerned that he would be unable to discover sufficient information about the jurors. In response, the trial court explained:

“[W]e adopted the procedure partly in response to a concern of a number of jurors last year, over time, but it kind of culminated last year, that did not want their name known to litigants, and we checked around and quite a number of the counties in the state are doing this, not a majority, but a number of them. So we are doing it and they're referred to by numbers. And if you want to, you can ask them questions about their knowledge. A question on voir dire isn't your knowledge of them, it's their knowledge of you and your case or the type of case.”

The trial court then overruled defendant's objection. During voir dire, jurors were told not to reveal their names, addresses, or the names of their employers.² Jurors could state the type of employment in which they were engaged and describe the area in which they lived, but not give specifics. When some jurors started to identify their employers or their spouses' employers, the court cautioned them against doing so.

After the jury returned a guilty verdict, defendant filed a motion for a new trial under ORCP 64 B(1) ³ on the ground, among others, that the anonymous jury selection process was an “irregularity” at trial that denied him an impartial jury and a fair trial in violation of Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution.⁴ Defendant asserted that there was no compelling reason for the trial court to use an anonymous jury and, more specifically, that defendant was prejudiced because different procedures had been used during voir dire for the other case, where jurors' names were revealed. Defendant argued that those jurors who had participated in or watched voir dire in both courtrooms would have noticed the different procedures and might have concluded that defendant was dangerous, thus violating defendant's right to an impartial jury and to the presumption of innocence.⁵ The trial court denied defendant's motion.

Defendant appealed, assigning error, inter alia, to the trial court's denial of his motion for a new trial. The Court of Appeals affirmed, concluding that defendant had waived any right to a new trial based on jury irregularities by not objecting before the jury returned a guilty verdict. Sundberg, 233 Or.App. at 88, 225 P.3d 89. The Court of Appeals noted that defendant did not ask the trial court to make findings to justify the use of an anonymous jury, did not request any cautionary instruction to mitigate any adverse inference that the jury might draw from that procedure, and did not assert that the procedure implied any dangerousness on defendant's part. Id. As to the fact that juror names were disclosed during jury selection in the other trial, the Court of Appeals concluded that defendant knew that a number of jurors had gone through voir dire previously and should have inquired further about the procedures in that courtroom if defendant had concerns about the propriety of voir dire in his trial. In the Court of Appeals' view, defendant “knew of and failed to object to those purported irregularities,” id., and therefore waived any right to a new trial based on them. Id. at 89, 225 P.3d 89.

PRESERVATION

It is undisputed that defendant objected during jury selection when he learned that he would not receive the names of jurors, stating that he would be unable to gather sufficient information about them to conduct adequate voir dire. Although defendant did not cite the Oregon or United States constitutions at that time, his concern that the procedure would hinder his ability to obtain an impartial jury was apparent. The trial court overruled his objection. Defendant then raised the objection again in his motion for a new trial, this time asserting that the anonymous jury procedure violated state statutes and the Oregon and United States constitutions. In addition to arguing that he was prevented from conducting adequate voir dire, defendant, in his motion for a new trial, also asserted that the unexplained use of anonymous prospective jurors would cause jurors to think that defendant was dangerous, and he cited a federal case for that proposition. Thus, defendant preserved his core claim—that he was entitled to have access to juror names during jury selection—by putting the trial court on notice when that purported error occurred and providing the court an opportunity to correct it, see State v. Haugen, 349 Or. 174, 199, 243 P.3d 31 (2010) (preservation requirement intended to allow trial court to correct errors as they occur), and, in his motion for a new trial, he articulated additional reasons that he believed the use of an anonymous jury was error and cited appropriate legal authorities for that position.

The state nevertheless argues that defendant's objection was not preserved because he failed to ask the trial court to make findings to support its decision to empanel an anonymous jury. That argument ignores the trial court's statement, in response to defendant's initial objection, that the circuit judges in Linn County had “adopted the procedure” of using anonymous juries and “we are doing it.” Clearly, the trial court's view was that the procedure had been adopted as a general rule, that the court was going to follow the procedure, and that findings were not needed to justify the procedure in any particular case. Similarly, the...