563 P.2d 1239 | Or. Ct. App. | 1977
Defendant appeals from his jury conviction of "robbery in the third degree” (ORS 164.395). He assigns as error both the admission into evidence of testimony elicited at the preliminary hearing from a witness who was unavailable at the time of trial, and the refusal of the court to declare a mistrial when, after some five-and-one-half hours of deliberation, the jury indicated that it was at an apparent deadlock.
Although ORS 41.900(8)
The testimony in question was obtained from the robbeiy victim while he was still hospitalized and recovering from a stab wound inflicted in the course of the robbery. Contrary to defendant’s contentions, however, the record indicates that the cross-examination of the witness conducted by attorneys representing
Immediately prior to defendant's trial tne state discovered for the first time that the victim — the missing witness — had previously been convicted of robbery in the first degree and was being sought as a parole violator by the State of California. Defendant argues that as a consequence of the unavailability of this information at the time of the preliminary hearing his cross-examination was necessarily ineffective "since information of the prior conviction may have had a significant impact on the jury’s verdict.” The fact is, however, that the jury ¿¿’as informed of not only the witness’ prior conviction in California but also additional prior convictions in Arkansas and Texas
After approximately five-and-one-half hours of deliberation the jury in the case at hand informed the court, without revealing how it was aligned, that it had apparently reached a stalemate. The jury was at that time asked by the court whether any progress had been made towards a verdict in the last two hours of deliberation. The jury foreman responded that some progress had in fact been made during that period. The court then inquired as to whether any advances had occurred in the preceding hour of discussion, and was informed by the foreman that some developments had taken place in that interval. In effect the jury was simply requested, over defendant’s objections, to continue its deliberations until it was convinced "it would be pointless to go on.”
A trial court is not required to declare a mistrial at a jury’s first indication that it cannot agree upon a verdict but may make a fair attempt at encouraging agreement. The foreman’s responses to the court’s initial inquiries indicated that the jury had been at an apparent impasse for something less than an hour after deliberating for approximately five-and-one-half hours, not an inordinately long period following a trial of two-and-one-half days’ duration. Although the jury foreman expressed doubt that further deliberation would be fruitful, under the circumstances — i.e., the relatively short period between the jury’s arrival at an apparent deadlock and its appearance before the
Affirmed.
"Evidence may be given of the following facts:
* * * *
"(8) The testimony of a witness, deceased, or out of the state, or unable to testify, given in a former action, suit, or proceeding, or trial thereof, between the same parties, relating to the same matter.” ORS 41.900(8).
State v. Rawls, 252 Or 556, 451 P2d 127 (1969); State v. Crawley, 242 Or 601, 410 P2d 1012 (1960); State v. Meyers, 59 Or 537, 117 P 818 (1911). Cf, State v. Bryant, 20 Or App 562, 532 P2d 815, Sup Ct review denied (1975). See also California v. Green, 399 US 149, 165-67, 90 S Ct 1930,26 L Ed 2d 489 (1970); Pointer v. Texas, 380 US 400, 407, 85 S Ct 1065, 13 L Ed 2d 923 (1965).
In the course of his cross-examination of the witness defendant’s attorney had, in fact, elicited an admission that the witness had previously been convicted of embezzlement in the state of Arkansas.
In State v. Marsh, 260 Or 416, 490 P2d 491 (1971), cert denied 406 US 974 (1972), the Supreme Court specifically disapproved the use of supplemental instructions characterized by an emphasis on a jury’s duty to decide a case if it can possibly do so, the expenses to be incurred by the parties and the public if a retrial is to be required, or a specific directive to those members of a jury holding a minority view to reconsider the reasonableness of their position. While arguing that the refusal of the court to declare a mistrial was inherently coercive defendant concedes that no "supplemental instruction” of any kind was given in this case.