State v. Garrett

In deciding whether an instruction is coercive, the court reviews the words to determine whether it: “(1) encourages the minority of the jury to reconsider its views in light of the majority’s position; (2) is not balanced by an emphasis on adhering to conscientiously held opinions; (3) refers to the necessity or expense of a retrial; and, most of all, (4) informs the jury that it has an obligation to continue deliberating until it reaches a verdict or that the court will not declare a mistrial as the result of a deadlocked jury.” State v. Marsh, 260 Or 416, 443, 490 P2d 491 (1971), cert den, 406 US 974 (1972).

Defendant appealed a judgment conviction for assaulting a public safety officer. Defendant assigned error to the trial court’s issuance of a supplemental jury instruction and the trial court’s denial of her motion for a mistrial. On appeal, Defendant argued the trial court’s supplemental instruction to a “deadlocked jury” was coercive and in violation of her constitutional right to a fair trial. Additionally, Defendant argued the jury could not follow the court’s instructions when it revealed its voting posture after the court told them not to, so a mistrial should be granted. In response, the State argued that the trial court’s instructions did not contain any language that would encourage a juror to change their mind or want to avoid the time and expense of a retrial and the fact that the jury revealed their voting posture does not suggest they did not understand the rest of the instructions. In deciding whether an instruction is coercive, the court reviews the words to determine whether it: “(1) encourages the minority to reconsider its views in light of the majority’s position; (2) is not balanced by an emphasis on adhering to conscientiously held opinions; (3) refers to the necessity or expense of a retrial; and, most of all, (4) informs the jury that it has an obligation to continue deliberating until it reaches a verdict or that the court will not declare a mistrial as the result of a deadlocked jury.” State v. Marsh, 260 Or 416, 443, 490 P2d 491 (1971), cert den, 406 US 974 (1972). The Oregon Court of Appeals concluded that Defendant failed to show an “overwhelming probability” that the jury was unable to follow instructions and that the trial court did not abuse its discretion when it denied Defendant her motion for mistrial. Affirmed.