State v. Vogh

• Decision Date: 20 February 2002
• Citation: 179 Or. App. 585,41 P.3d 421
• Parties: STATE of Oregon, Respondent, v. James Daniel VOGH, Appellant.
• Court: Oregon Court of Appeals

41 P.3d 421

179 Or. App. 585

STATE of Oregon, Respondent, v. James Daniel VOGH, Appellant.

000140180; A109942

Court of Appeals of Oregon.

Argued and Submitted April 24, 2001.

Decided February 20, 2002.

Garrett A. Richardson, Portland, argued the cause and filed the brief for appellant.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

LINDER, J.

Defendant appeals his conviction of criminal trespass in the second degree. ORS 164.245. We write to address only defendant's assignment of error regarding the trial court's failure to administer the jury oath. We affirm.

The relevant facts are procedural in nature and are undisputed. The case was tried to a jury on March 21, 2000. The jury returned a guilty verdict, which the trial court received without objection. The jury was discharged the same day. The case came before the trial court for sentencing on March 28, 2000. At sentencing, defense counsel stated that he had "thought about it after trial" and he had a "suspicion" that "the court never swore the jury on this case." Although the trial judge could not recall whether the jury was sworn, the clerk said that she remembered swearing the jury. In light of that uncertainty, the trial judge rescheduled sentencing for the following week. At the scheduled sentencing hearing, defense counsel reported that he had obtained and reviewed the audiotape transcript of the trial and that it did not disclose that the jury had been sworn.¹

Defense counsel suggested that either "a new trial be ordered [or] that the jury that actually heard the case be reassembled and sworn and sent back to deliberate a second time." The court declined to do either. Defense counsel then moved for a mistrial, relying on State v. Barone, 329 Or. 210, 986 P.2d 5 (1999), cert. den. 528 U.S. 1086, 120 S.Ct. 813, 145 L.Ed.2d 685 (2000). The trial court denied that motion as untimely, and sentenced defendant.

On appeal, defendant asserts that the trial court "erred by failing to swear the jury." Defendant's assignment of error is not directed at a particular ruling, contrary to what our rules require.² Defendant's argument and the portions of the record that he sets forth, however, reveal that the trial court made three distinct rulings with which he takes issue. Defendant does not discuss those rulings separately but, rather, addresses them as though each is subject to the same analysis. Defendant's generic assignment of error and his approach to the trial court's rulings are, ultimately, telling. Correctly and precisely framed, defendant's arguments encompass three claims of error: (1) the trial court erred in failing to grant a new trial sua sponte; (2) the trial court erred in denying defendant's request to reassemble the jury and administer the oath to it two weeks after it had returned its verdict and had been released from the court's control; and (3) the trial court erred in denying defendant's motion for mistrial based on the court's refusal to grant a new trial or its refusal to reassemble the jury and administer the oath after it had dispersed. As those correct framings of defendant's assignments of error suggest, and as our discussion below explains, defendant failed to raise his claim below in a timely fashion.

We begin with defendant's argument that the trial court should have granted a new trial based on its failure to swear the jury at the outset of the trial. ORS 136.535 provides that a motion for a new trial "shall be filed within five days after the filing of the judgment sought to be set aside." The only point at which defendant suggested that the trial court should order a new trial, without formally making a motion to that effect, was before sentencing and before the judgment was filed. The trial court commented that the issue was premature. Defense counsel agreed, stating: "There's not a motion for new trial before the Court in this context because one hasn't been filed yet because a judgment hasn't been entered." On that record, any request defendant may have made for a new trial was effectively withdrawn. Defendant did not file a motion for new trial after the judgment was entered. Under the circumstances, the trial court's failure to grant a new trial, effectively sua sponte, was not error.

Defendant also argues that the trial court should have reassembled the jury, administered the oath to it, and asked it to deliberate anew. In urging the trial court to take that action, defendant relied on Barone, in which the trial court administered the oath to the jury immediately after it returned its verdict and then directed the jury to redeliberate. 329 Or. at 215, 986 P.2d 5. The posture of this case, however, differs significantly from that of Barone. Here, the jury had returned its verdict, the trial court had received the verdict without objection, the court had released the jury from its control, and the jury had dispersed. Seven days then passed. For the first time at sentencing, defendant raised his concern that the trial court may have failed to swear the jury. Approximately seven more days passed while defendant obtained and reviewed the audiotape record of the proceedings. Only then did defendant ask to have the jury reassembled so that it could be sworn and could deliberate anew. Defendant makes no effort to demonstrate that the trial court had the authority to grant him such relief at that point. Nor does defendant discuss how that relief would have been meaningful. State v. Vann, 158 Or. App. 65, 973 P.2d 354 (1999), is closely analogous in that regard. There, the day after the trial court received the verdict and discharged the jury, the trial court discovered that one juror had not returned a written polling slip. To confirm that the requisite number of jurors voted for the verdict, the trial court recalled that juror. This court held that the trial court could not cure the irregularity in that way. We reasoned:

"Where a jury has left the court's control and been subjected to outside influences, the reliability of any poll on recall, as well as the integrity of the resulting verdict, is undermined by the possibility, however remote, that the recalled juror was affected by improper influences. * * * That possibility unduly weakens the integrity of the jury process, and the rule [foreclosing any action regarding the verdict once it has been received and the jury has dispersed] safeguards the system from having to bear that strain."

Id. at 74, 973 P.2d 354 (citations omitted).

Defendant's request that the trial court reassemble the jury, administer the oath, and have the jury deliberate anew asked the trial court to do something that it lacked the power to do. No statute gives a trial court the authority to reassemble a jury after it has been discharged from the court's control. Nor is there a basis for concluding that the court inherently has that power. As Vann observes, such a remedy comes too late in the day and injects new uncertainties into the reliability of any verdict the jury might return. To be sure, when the verdict is adverse to the defendant, as it was here, the defendant has nothing to lose by seeking a new verdict, however lacking that verdict may be in integrity. But a defendant is not entitled to insist on an unreliable verdict. Defendant's requested relief came too late, and the trial court correctly declined to grant it.³

The next issue is whether the trial court correctly denied defendant's motion for mistrial. Defendant moved for a mistrial only after the trial court declined defendant's alternative requests to order a new trial or to reassemble the jury. Thus defendant made that motion, too, after the verdict had been accepted and the jury had been discharged.

Defendant argues that, under Barone, if a trial court fails to administer the oath to the jury at the outset of the trial as ORCP 57 E requires, it must at least swear the jury later in the proceedings or, if it does not, it must grant a defendant a mistrial. Barone does not stand for that broad proposition, however. There, the court stated that, if the failure to swear the jury in a timely manner "results in unfair prejudice or affects a substantial right of a party, the trial court is without discretion to deny a motion for mistrial." Barone, 329 Or. at 225, 986 P.2d 5. The court did not hold that a failure to swear the jury at all necessarily amounts to unfair prejudice or infringes a substantial right of a party. To the contrary, the court treated even an untimely administration of the oath as error and refused to analyze it as "structural error," that is, an error requiring automatic reversal. Id. at 226, 986 P.2d 5. Barone did not involve, and thus the court did not consider, whether a failure to administer the oath at all is per se prejudicial and requires granting a motion for mistrial as a matter of law.

More to the point, however, Barone involved a timely motion for mistrial, that is, one made before the jury returned its verdict. Barone contains no suggestion that a defendant is entitled to a mistrial when the defendant first alerts the trial court to its failure to swear the jury after the verdict has been accepted and after the jury has been released. A motion for mistrial at that late stage is untimely. As the Oregon Supreme Court has held, "the only post-verdict motions authorized by statute in criminal cases are a motion for a new trial and a motion in arrest of judgment." State v. Peekema, 328 Or. 342, 347, 976 P.2d 1128 (1999); see also State v. Metcalfe, 328 Or. 309, 313-14, 974 P.2d 1189 (1999)

. In all events, we review a trial court's denial of a motion for mistrial for abuse of discretion. State v. Lotches, 331 Or. 455, 496, 17 P.3d 1045 (2000). When, as here, a defendant does not call the matter to the...