State v. Vann
| Decision Date | 13 January 1999 |
| Citation | 158 Or.App. 65,973 P.2d 354 |
| Parties | STATE of Oregon, Respondent, v. Cornelius Dale VANN, Appellant. State of Oregon, Respondent, v. Demond Lewis Clark, aka Crane Antawan Niblack, Appellant. State of Oregon, Respondent, v. Rhonda A. Smith, aka Rhonda Evans, Appellant. State of Oregon, Respondent, v. Samuel Lamont Lewis, Appellant. 9607-35291, 9607-35294, 9607-35292 and 9607-35293; CA A96684 (Control), CA A96685, CA A96686 and CA A96687. |
| Court | Oregon Court of Appeals |
Eric Johansen, Deputy Public Defender, argued the cause for appellants. With him on the brief was Sally L. Avera, Public Defender.
Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before De MUNIZ, Presiding Judge, and EDMONDS and HASELTON, Judges.
De MUNIZ, P.J.
In a joint trial to a jury, defendants were convicted of robbery in the second degree. 1 ORS 164.405. At a hearing after the trial, defendants moved for a mistrial based on an irregularity in the verdict. The trial court denied the motion and this appeal followed. We reverse.
The undisputed facts are taken from the trial and hearing record and the trial court file. After the jury returned its verdicts, the court asked the jury if its verdicts were unanimous. The presiding juror replied, "Not all of them." Defendant Smith then requested a poll of the jury, which the jury asked to be done in writing. The court directed the jurors to get paper from their juror notebooks and informed them as to how they should record their verdicts. The court then collected the jurors' polling slips and asked, "[Do] I have everybody's slip?" After pausing, it read aloud the results of the written poll, concluding that a sufficient number of jurors had concurred in the guilty verdicts on the second count--robbery in the second degree--as to defendants Clark, Vann, Smith, and Lewis. The court further noted: The court then discharged the jury, telling the jurors that their "jury service is over" and thanking them for their service. The court set a sentencing date for January 3, 1997 and signed trial orders reflecting the verdicts.
At the hearing on January 3, the court did not proceed to sentencing but, rather, advised defendants that there was "an irregularity in the jury verdict." It explained that the day after the conclusion of the trial, it had reviewed the polling slips and "discovered * * * that only 11 jurors returned slips." The court summarized how its discovery affected the verdicts:
The court then stated that it believed that juror Marquez had failed to return a polling slip, that it knew where Marquez was living, and that it had attempted to contact her. The court wanted to "make an inquiry * * * [as to] whether [Marquez] turned in a slip" and "to poll [Marquez] like we did all the other jurors." The court also noted that it intended to do so without the parties and their lawyers present. However, as of January 3, Marquez had not responded to written requests to contact the court. The court then set another hearing for January 14 and continued its effort to locate Marquez.
At the hearing on January 14, the court still had not found Marquez. The court asked the investigator who was working on the case to testify. He explained that Marquez had been out of town and had been expected to return on January 13, the day before the hearing, and that he had no other information. Defendant Lewis then moved for a mistrial and defendants Clark, Vann and Smith joined in that motion. The court asked for written motions from all parties and set another hearing for February 5.
On January 24, Marquez appeared in court and testified under oath about her verdicts. Marquez testified that she did not turn in a polling slip because she was not given a piece of paper. Marquez's testimony then went as follows:
At the hearing on February 5, the parties argued the merits of defendants' mistrial motion. The trial court denied the motion.
Preliminarily, the state suggests that "defendants' motions for mistrials may not have been timely." An irregularity in the verdict must normally be raised at the time the verdicts are received. State v. Kelley, 114 Or.App. 262, 265, 835 P.2d 145 (1992), rev. den. 315 Or. 312, 846 P.2d 1161 (1993). That requirement allows the trial court to remedy the error. See State v. Shafer, 222 Or. 230, 235, 351 P.2d 941 (1960) (). Here, however, the alleged error was not known by defendants until three weeks after the trial had ended and, thus, could not have been raised at trial. Moreover, when the trial court made the irregularity known, it encouraged the lawyers "to start thinking" about the polling problem and whether a mistrial was necessary, and, after receiving written motions, the court ruled on that issue. Because defendants did not learn of the irregularity until after trial, and because the trial court opened the error for consideration and argument, we hold that defendants' motion is subject to review.
In defendants' first assignment of error, 2 they argue that the court never received a "complete" verdict as to Vann, Lewis and Smith on the second count--robbery in the second degree--and that, after discharging the jury, the court had no authority even to recall one of them for questioning. Defendants argue that, because a "complete" verdict was not received by the court, they are entitled to a mistrial. We agree.
The determination of whether to grant a mistrial is committed to the sound discretion of the trial court. State v. Larson, 325 Or. 15, 22, 933 P.2d 958 (1997); State v. Neal, 143 Or.App. 188, 192, 922 P.2d 717, rev. den. 324 Or. 488, 930 P.2d 852 (1996). Thus, we review the trial court's ruling for abuse of that discretion. Id. We will deem a denial of a mistrial as error only when a defendant's ability to obtain a fair trial has been impaired. State v. White, 303 Or. 333, 342, 736 P.2d 552 (1987); State v. Grenawalt, 86 Or.App. 96, 98, 738 P.2d 232, rev. den. 304 Or. 405, 745 P.2d 1225 (1987).
In a felony criminal action in which there are 12 jurors seated, at least 10 jurors must concur to render a legally sufficient verdict of guilty or not guilty. Or Const, Art I, section 11; ORS 136.450. After the verdict is given, a defendant "may request that the jury be polled[,]" ORCP 59 G(3), 3 which "is a procedure designed to test the numerical validity of a verdict at the time it is rendered." State v. Mendez, 308 Or. 9, 15, 774 P.2d 1082 (1989). In polling the jury, the trial court asks each juror whether the verdict is his or hers, and, to receive a legally sufficient verdict in a felony case, the court must observe 10 of 12 answers "in the affirmative." ORCP 59 G(3). If fewer than 10 jurors affirm the verdict, the court "shall" send the jury out for further deliberations. ORCP G(3). Further, in a criminal action, the jury "may, in the discretion of the court, be polled in writing." ORS 136.330(1). If a written poll occurs, the court similarly must receive at least 10 individual written votes that affirm the jury's verdict.
It is the trial court's obligation to see that the verdict is in proper form. On a request for a poll, the court's duty includes confirming that the verdict is supported by a proper number of assenting votes. That procedure is essential to the integrity of the jury process because it "eliminat[es] any uncertainty as to the verdict announced by the [jury] foreman." State v. Lewis, 18 Or.App. 206, 209, 524 P.2d 1231 (1974) (internal quotations and citations omitted). That is so because polling requires each juror to assume individual responsibility for the verdict, id., which...
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