Oregon Supreme Ct - June 19, 2014
by: Abassos and Lisa Fitzgerald • June 19, 2014 • no comments
Accomplice Testimony May Be Corroborated by Evidence “Tending to Connect” Defendant to Offense
Accomplice testimony under ORS 136.440 may be corroborated by evidence that, taken as a whole, connects the defendant to the offense; it can be circumstantial and does not need to corroborate all elements of the offense. In this case accomplice testimony was found to be sufficiently corroborated by evidence of motive, cell phone data, a prior assault of the same victim, and descriptions from two additional witnesses generally matching the defendant. Affirmed. State v. Washington, 355 Or 612 (2014).
Defendant’s History of Violence, Gang Affiliation, and Physical Ability Justified Order to Wear Stun-Belt during Trial
The requirement that the defendant wear a stun-belt is justified where defendant is considered dangerous and restraint is the least visible and least intrusive means to provide security. In this case, the defendant was facing a serious sentence, had a history of violence and gang affiliation, and was physically capable of overcoming a deputy. Also, the defendant failed to show that the stun-belt impeded his defense in any way. Affirmed. State v. Washington, 355 Or 612 (2014).
Empaneling Anonymous Jury—Court Must Consider Particular Security Concerns and Take Precautions to Protect Impartiality of Jury
Jury anonymity is permissible where, based on the particular circumstances of the case, it is found necessary for the protection of the jurors. The court must then take precautions to protect the impartiality of the jury. In this case, the trial court empanelled an anonymous jury due to the defendant’s history of violence, gang affiliation, and the seriousness of charges. The trial court minimized the possible prejudicial effects of the anonymity by telling every group of jurors in voir dire that jury names are not used as a matter of policy, in all trials. Affirmed. State v. Washington, 355 Or 612 (2014).
Questioning the Jury—Only if there is Reason to Believe Process has been Compromised
In order to question the jury there must be a showing of jury misconduct or similar reason to believe that the process has been compromised. The policy of protecting the deliberation process applies even when request is made before deliberations occur. In this case, before the jury began deliberations, defendant was denied the opportunity to question jurors because a “mere possibility” that the additional security in the courtroom had an influence on some jurors was not enough of a basis. Affirmed. State v. Washington, 355 Or 612 (2014).
Jury Instructions—Mercy Alone cannot be the Basis of Jury Decision
A jury instruction that permits jury to decide based on “mercy alone” is not legally correct. Sympathy or mercy must be based on the evidence. In this case, the trial court refused to deliver the following instruction: “any individual juror may base a decision to impose a sentence less than death on mercy alone.” Affirmed. State v. Washington, 355 Or 612 (2014).
Victim Impact Evidence in Guilt Phase is Harmless if Minimal or Similar to other Admitted Testimony
In the guilt phase of trial the admission of victim impact evidence is harmless error if brief or similar to other testimony admitted without objection. Here, the testimony of the victim’s uncle left jurors “visibly shaken” and some in tears. The court found that the brief statements were not unduly prejudicial and were unlikely to have affected the verdict. Affirmed. State v. Washington, 355 Or 612 (2014).
