Brooks v. GladdenBrooks v. Gladden
- Reporters:
- , ,
- Before:
- O'Connell
This proceeding was initiated in the circuit court for Marion county under the Post-Conviction Hearing Act (
“* * * (2) When a verdict is given, and before it is filed, the jury may be polled on the request of either party, for which purpose each shall be asked whether it is his verdict * *
Although the statute is east in language indicating that the polling of the jury is discretionary with the trial judge, it is firmly established by our previous decisions that the right to have the jury polled is absolute. Rodgers Insurance Agency v. Andersen Machinery, 211 Or 459, 316 P2d 497 (1957); Freeman v. Wentworth & Irwin, Inc., 139 Or 1, 7 P2d 796 (1932).
The state concedes that prejudicial error was committed and that a right of appeal from the judgment of conviction arose when the trial judge denied plaintiff’s request to have the jury polled. The state contends, however, that the plaintiff’s sole remedy for this error is by way of appeal and that post-conviction relief is not available to him.
Plaintiff’s petition for post-convietion relief attacks the judgment of conviction on the ground that it is void. He charges:
“My imprisonment, incarceration and restraint was and is illegal on the ground and for the reason that there were substantial denials in the proceedings resulting in my conviction of my rights under the Constitution of the Hnited States and the Constitution of the state of Oregon, which rendered the conviction void.”
Among the “substantial denials in the proceedings” recited in the petition is the refusal of the trial judge
“138.530 When relief must he granted; executive clemency or pardon powers and original jurisdiction of Supreme Court in habeas corpus not affected. (1) Post-conviction relief pursuant to OBS 138.510 to 138.680 shall be granted by the court when one or more of the following grounds is established by the petitioner:
“(a) A substantial denial in the proceedings resulting in petitioner’s conviction, or in the appellate review thereof, of petitioner’s rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.
“(b) Lack of jurisdiction of the court to impose the judgment rendered upon petitioner’s conviction.
“(c) Sentence in excess of, or otherwise not in accordance with, the sentence authorized by law for the crime of which petitioner was convicted; or unconstitutionality of such sentence.
“(d) Uneonstitutionality of the statute making criminal the acts for which petitioner was convicted.”
Plaintiff’s prayer for relief is based upon and confined to OBS 138.530 (1) (a), the petition alleging in effect that his conviction was rendered void as a result of the trial court’s refusal to poll the jury.
The sole question on this appeal, then, is whether, under the circumstances recited, plaintiff’s constitutional rights were denied. More specifically, the question is whether the right of the accused to poll the jury is so essential in assuring him a fair trial that the refusal to permit the poll is a “substantial denial”
The scope of subsection (1) (a), OBS 138.530 can best be described in relation to subsection (1) (b). The latter subsection states the ground for relief in habeas corpus as that extraordinary remedy was known at common law. The scope of the writ of habeas corpus was expanded, however, by Congress and the United States Supreme Court (see, Darr v. Burford, 339 US 200, 221, 70 S Ct 587, 94 L Ed 761 (1950), dissenting opinion; Hawk v. Olson, 326 US 271, 274-275, 66 S Ct 116, 90 LEd 61 (1945)), to afford relief where the trial court had jurisdiction initially but lost it by departing from due process of law, thus rendering the judgment void. United States v. Hayman, 342 US 205, 210-212, 72 S Ct 263, 96 L Ed 232 (1952); Johnson v. Zerbst, 304 US 458, 468, 58 S Ct 1019, 82 L Ed 1461, 146 ALR 357 (1938); Frank v. Mangum, 237 US 309, 330-331, 336, 35 S Ct 582, 59 L Ed 969 (1915), and see dissenting opinion by Justice Holmes, 237 US 345, 346, et seq. The function of the writ was similarly extended by our own eases to reach violations of the Oregon Constitution. Huffman v. Alexander, 197 Or 283, 313-314, 251 P2d 87, 253 P2d 289 (1953).
Subsection (1) (a) of OBS 138.530 states in substance the principle announced in these latter cases, providing a post-conviction remedy where there is a substantial denial of rights protected by either the federal or state constitutions. Petitioner, to qualify for post-conviction relief on this ground, has the burden of showing that he has been denied due process of law.
Hawk v. Olson,
supra;
Smallman v. Gladden,
Relief has been granted in similar cases decided under the Illinois Post-Conviction Hearing Act, Smith-Hurd Ann. St., ch 38, §§ 826-832. McKeag v. The People, 7 Ill2d 586, 131 NE2d 517 (1956) (plea of guilty induced by promise of prosecutor to recommend light sentence); The People v. Morris, 3 Ill2d 437, 121 NE2d 810 (1954) (incompetency of appointed counsel) ; The People v. Wakat, 415 Ill 610, 114 NE2d 706 (1953) (coerced confession and perjured testimony); The People v. Evans, 412 Ill 616,107 NE2d 839 (1952) (confession allegedly obtained by coercion and promises) ; The People v. Reeves, 412 Ill 555, 107 NE2d 861 (1952) (incompeteney of appointed counsel); The People v. Jennings, 411 Ill 21, 102 NE2d 824 (1952) (coerced confession and perjured testimony).
On the other hand: “The writ of
habeas corpus
is not the equivalent of an appeal or writ of error. It is not a proceeding to correct errors which may have occurred in the trial of the case below. It is an attack directly upon the validity of the judgment, and, as has been frequently said, it cannot be transformed into a writ of error.”
Whitney v. Dick,
202 US 132, 136, 26 S Ct 584, 50 L Ed 963 (1906).
Smallman v. Gladden,
supra. Thus the writ is not available where the defendant has received a sentence of both fine and imprisonment, although the two punishments are alternative rather than cumulative,
Ex Parte Mooney,
26
W
Va 36, 53 Am Rep 59 (1885); where incompetent evidence has been admitted in a fair hearing,
Tisi v. Tod,
264 US 131, 44 S Ct 260, 68 L Ed 590 (1924) ; where impaneling of the grand jury is ordered by a judge outside of the judicial district,
Harlan v. McGourin,
218 US 442, 451, 31 S Ct 44, 54 L Ed 1101
Whether the denial of a defendant’s request to poll the jury in a criminal case is, on the one hand, a “substantial denial” of a constitutional right falling below the standard of due process as illustrated by the first group of eases above, or, on the other hand, a mere irregularity in the procedure, as illustrated in the cases last cited, has not been passed upon in any reported case brought to our attention.
The concept of due process cannot be expressed in precise terms. Broadly speaking, it denotes our sense of what constitutes fair play in the legal procedures under which a man is tried.
Galvan v. Press,
347 US 522, 74 S Ct 737, 98 L Ed 911 (1954). Expressed in terms of the relief provided by the writ of habeas corpus it is said that the scope of the writ “is largely a reflection of our contemporary attitudes towards an ideal of fairness in the administration of justice.” Note, 61 Harv L Rev 657 (1948). What minimum safeguards these procedures must provide, as well as the scope of the judiciary’s function in determining whether the minimum has been met, are questions upon which there is considerable disagreement. See, for example,
Hannah v. Larche,
363 US 420, 80 S Ct 1502,
We come, then, to the question of whether the procedure adopted by the trial judge was unfair as judged by that standard. Since the standard is expressed in terms of our legal traditions of fairness, an inquiry into the early law relating to the right to poll the jury is appropriate. Neither the origin nor the purpose of the procedure for polling the jury is clear. The source
“Now touching the giving up of their verdict, if the jury say they are agreed, the court may examine them by poll, and if in truth they are not agreed, they are fineable.”
The ambiguous “may” in the statement of the principle has spawned three conflicting lines of authority. Annotation, Accused’s Eight to Poll of Jury, 49 ALR2d 619 (1956). In some states it is held that the defendant has no right to poll the jury.
State v. Tucker,
146 Conn 410, 151 A2d 876 (1959);
Fellow’s Case,
5 Me 333 (1828);
Commonwealth v. Goldenberg,
338 Mass 377, 155 NE2d 187, 70 ALR2d 814 (1959), Cert. Den., 359 US 1001, 79 S Ct 1143, 3 L Ed2d 1032. See, Comment, Defendant’s Right to Poll the Jury in Criminal Cases, 6 De Paul L Rev 92, 93 (1956). At the other extreme is the view of the great majority of cases which hold that defendant has an absolute right to such a poll.
Rodgers Insurance v. Andersen Machinery,
211 Or 459, 316 P2d 497 (1957);
Freeman v. Wentworth & Irwin, Inc.,
139 Or 1, 7 P2d 796 (1932);
Wilson v. The State,
93 Ga App 375, 91 SE2d 854 (1956);
Carver v. Commonwealth,
256 SW2d 375, 49 ALR2d 616 (Ky 1953);
State v. Dow,
246 N C 644, 99 SE2d 860 (1957);
State v. Butler,
27 N J 560, 143 A2d 530 (1958);
Reed v. Kinnik,
389 Pa 143, 132 A2d 208, 71 ALR2d 635 (1957). See cases collected in 49 ALR2d at 621. A middle ground is taken by some courts, holding that it is within the discretion of the trial court to determine whether a poll is necessary to protect the interest of the defendant.
Ryan v. People,
50 Colo 99, 114 P 306, Ann Cas 1912B 1232 (1911);
State v. Grierson,
96 N H 36, 69 A2d 851 (1949);
State v. Sousa,
43 R I 176,
As we have pointed out above, this court is committed to the rule which assures the accused the right to poll the jury if he so requests. We do not now propose to re-examine that rule. Since an inquiry addressed individually to each of the members of the jury may, in some instances, disclose an error in re
It must be remembered that defendant may obtain relief upon appeal if he is denied the right to a poll of the jury. He is not, therefore, without a means of redress if his right is violated. The Supreme Court of the United States informs us,
“habeas corpus
is increasingly denied in case an appellate procedure was available for correction of the error.”
Sunal v. Large,
332 US 174, 179, 67 S Ct 1588, 91 L Ed 1982 (1947). Further, the rule requiring resort to appellate procedure for correction of errors will be relaxed only in cases involving “exceptional circumstances.” Ibid., 332 US at 180;
Bowen v. Johnston,
306 US 19, 27, 59 S Ct 442, 83 L Ed 455 (1939). If, as the Sunal case holds, an erroneous denial of a proper defense is not such an “exceptional circumstance,” we certainly cannot say that a denial of the right to poll the jury is otherwise. We recognize that relief through the avenue of appeal is oftentimes open where constitutional rights are violated in the course of the trial; but where a denial of procedural due process is urged, the fact that a remedy by way of appeal is provided is a factor to be
Ultimately the question is, as we have already suggested, one for our judicial sense of fairness, guided by our knowledge of the traditions which have shaped procedural rights and by our understanding of the mechanics of trial procedures, including the functioning of the jury in our present day practice. Viewing the denial of the trial judge to permit a poll of the jury against this background, we are of the opinion that defendant was not denied due process of law under our Constitution or under the Constitution of the United States.
Defendant argues that
The judgment of the lower court is reversed and the cause is remanded with directions to dismiss the petition.