VAN HOOMISSEN, J.
Defendant Mendez and his co-defendants Martinez and Contreras were indicted and jointly tried for murder, felony murder, and first degree kidnapping in connection with the death of Carlos Sevilla. This case is Mendez’s appeal of his conviction of felony murder. He contends that the trial court erred in denying his motion for a new trial and in excluding certain hearsay evidence.
The issues are whether a less than unanimous verdict on a separately charged underlying felony is necessarily inconsistent with a unanimous verdict for felony murder, and whether exclusion of the hearsay evidence was error. The Court of Appeals affirmed without opinion.
State v. Mendez,
93 Or App 429, 762 P2d 1069 (1988). We affirm.
At trial, prosecution witness Warren testified that she was present when Sevilla and Carl Moen came to a house where she lived with the three defendants. While Moen was in the bathroom, the three defendants seized Sevilla and took him to the basement, where they questioned him about his drug activities in competition with Contreras. Later, they brought Sevilla out of the basement wrapped in a blanket. Defendants left together, returning to the house more than an hour later without Sevilla. The following day Sevilla’s body was found. He had been shot five times. The jury convicted defendant of felony murder and first degree kidnapping, but it acquitted him of murder. The jury had voted 12-0 for conviction of felony murder, 11-1 for conviction of first degree kidnapping, and 11-1 for acquittal of murder.
Defendant moved to set aside the felony murder verdict, arguing that the less than unanimous kidnapping verdict was inconsistent with the unanimous felony murder verdict. The trial court deferred ruling on that motion until sentencing. Defendant then asked the court to consider interviewing the jurors
in camera
“as to whether they understood the Court’s instructions that a unanimous vote must be reached on Felony Murder, and that in order to do that, all 12 of them would have to have reached a unanimous verdict on the Kidnap, before considering a unanimous verdict on the Felony
Murder.” The court refused to do so and discharged the jury. At sentencing the court denied a motion by defendant for a new trial and entered judgment accordingly.
I.
Defendant first contends that the trial court erred in denying his motion for a new trial. He argues that because Oregon’s Constitution and statutes require that murder verdicts be unanimous, there must be unanimity on the underlying felony before a verdict of felony murder may be returned. He argues that it was a logical and legal impossibility for one of the jurors to find that he had not committed the underlying crime of kidnapping
while finding him guilty of felony murder because the felony murder verdict necessarily required a unanimous finding of guilt on the kidnapping. He argues further that the “inconsistent” verdicts show that the jury was confused by the prosecutor’s closing argument
and by the
trial court’s instructions.* ***
Standing alone, each verdict is valid on its face. The question is whether, when taken together, the verdicts require a new trial. We conclude that they do not.
The indictment charged three separate crimes. It was the jury’s duty to consider each separately and to render a verdict on each. The trial court instructed the jury as to the elements of each crime and the number of votes required to convict or acquit on each. The court also instructed the jury that the state was required to prove each of the material elements of felony murder beyond a reasonable doubt, including that defendant, either alone or with one or more persons, committed the crime of kidnapping in the first or second degree and that in the course of and in furtherance of the
crime of kidnapping in the first or second degree which defendant was committing, defendant or another participant caused Sevilla’s death.
The verdicts in this case are subject to more than one interpretation. Defendant suggests that the dissenting juror on the 11-1 first degree kidnapping vote may have found that defendant was not guilty of either first or second degree kidnapping, a finding inconsistent with the dissenter’s felony murder vote. Another interpretation, harmonious with the felony murder verdict, is that the dissenting juror believed defendant not guilty of first degree kidnapping but guilty of the lesser included crime of second degree kidnapping, a felony sufficient to sustain a felony murder verdict. The 11 jurors who voted guilty of first degree kidnapping of necessity had to find defendant guilty of all the elements of second degree kidnapping.
See supra,
note 3. The dissenting juror may have disagreed with the other 11 solely on the element that distinguishes first and second degree kidnapping. In denying defendant’s motion for a new trial, the trial court recognized that this interpretation would harmonize the verdicts.
Since they can be harmonized, the verdicts are not necessarily inconsistent.
Defendant argues that a mere numerical poll was inadequate and, therefore, the trial court should have talked to the jurors
in camera
to determine whether they understood the court’s instructions. He relies on ORCP 59G, ORS 136.330,136.480 and 136.485. Defendant did not ask the trial
court to direct the jury to reconsider its verdicts under ORS 136.480 or 136.485. Further, the trial court complied with ORCP 59G and ORS 136.330 by numerically polling the jury. Polling is a procedure designed to test the numerical validity of a verdict at the time it is rendered.
Sandford v. Chev. Div. of Gen. Motors,
292 Or 590, 614, 642 P2d 624 (1982). Defendant cites no authority, and we are aware of none, authorizing a trial court to question jurors concerning their thought processes, their understanding of the law, or the reasons for their verdicts. Inquiry is limited to whether each juror agrees with the verdict. The trial court did not err in refusing to talk to the jury
in camera
for the purposes suggested by defendant.
II.
Defendant next contends that the trial court erred in excluding certain hearsay evidence. During cross-examination of prosecution witness Baldón, defendant made an offer of proof that Baldón would testify that two weeks before his murder Sevilla asked her for a weapon, stating that he feared Moen would kill him for his drugs, money, and girlfriend.
Free access — add to your briefcase to read the full text and ask questions with AI
VAN HOOMISSEN, J.
Defendant Mendez and his co-defendants Martinez and Contreras were indicted and jointly tried for murder, felony murder, and first degree kidnapping in connection with the death of Carlos Sevilla. This case is Mendez’s appeal of his conviction of felony murder. He contends that the trial court erred in denying his motion for a new trial and in excluding certain hearsay evidence.
The issues are whether a less than unanimous verdict on a separately charged underlying felony is necessarily inconsistent with a unanimous verdict for felony murder, and whether exclusion of the hearsay evidence was error. The Court of Appeals affirmed without opinion.
State v. Mendez,
93 Or App 429, 762 P2d 1069 (1988). We affirm.
At trial, prosecution witness Warren testified that she was present when Sevilla and Carl Moen came to a house where she lived with the three defendants. While Moen was in the bathroom, the three defendants seized Sevilla and took him to the basement, where they questioned him about his drug activities in competition with Contreras. Later, they brought Sevilla out of the basement wrapped in a blanket. Defendants left together, returning to the house more than an hour later without Sevilla. The following day Sevilla’s body was found. He had been shot five times. The jury convicted defendant of felony murder and first degree kidnapping, but it acquitted him of murder. The jury had voted 12-0 for conviction of felony murder, 11-1 for conviction of first degree kidnapping, and 11-1 for acquittal of murder.
Defendant moved to set aside the felony murder verdict, arguing that the less than unanimous kidnapping verdict was inconsistent with the unanimous felony murder verdict. The trial court deferred ruling on that motion until sentencing. Defendant then asked the court to consider interviewing the jurors
in camera
“as to whether they understood the Court’s instructions that a unanimous vote must be reached on Felony Murder, and that in order to do that, all 12 of them would have to have reached a unanimous verdict on the Kidnap, before considering a unanimous verdict on the Felony
Murder.” The court refused to do so and discharged the jury. At sentencing the court denied a motion by defendant for a new trial and entered judgment accordingly.
I.
Defendant first contends that the trial court erred in denying his motion for a new trial. He argues that because Oregon’s Constitution and statutes require that murder verdicts be unanimous, there must be unanimity on the underlying felony before a verdict of felony murder may be returned. He argues that it was a logical and legal impossibility for one of the jurors to find that he had not committed the underlying crime of kidnapping
while finding him guilty of felony murder because the felony murder verdict necessarily required a unanimous finding of guilt on the kidnapping. He argues further that the “inconsistent” verdicts show that the jury was confused by the prosecutor’s closing argument
and by the
trial court’s instructions.* ***
Standing alone, each verdict is valid on its face. The question is whether, when taken together, the verdicts require a new trial. We conclude that they do not.
The indictment charged three separate crimes. It was the jury’s duty to consider each separately and to render a verdict on each. The trial court instructed the jury as to the elements of each crime and the number of votes required to convict or acquit on each. The court also instructed the jury that the state was required to prove each of the material elements of felony murder beyond a reasonable doubt, including that defendant, either alone or with one or more persons, committed the crime of kidnapping in the first or second degree and that in the course of and in furtherance of the
crime of kidnapping in the first or second degree which defendant was committing, defendant or another participant caused Sevilla’s death.
The verdicts in this case are subject to more than one interpretation. Defendant suggests that the dissenting juror on the 11-1 first degree kidnapping vote may have found that defendant was not guilty of either first or second degree kidnapping, a finding inconsistent with the dissenter’s felony murder vote. Another interpretation, harmonious with the felony murder verdict, is that the dissenting juror believed defendant not guilty of first degree kidnapping but guilty of the lesser included crime of second degree kidnapping, a felony sufficient to sustain a felony murder verdict. The 11 jurors who voted guilty of first degree kidnapping of necessity had to find defendant guilty of all the elements of second degree kidnapping.
See supra,
note 3. The dissenting juror may have disagreed with the other 11 solely on the element that distinguishes first and second degree kidnapping. In denying defendant’s motion for a new trial, the trial court recognized that this interpretation would harmonize the verdicts.
Since they can be harmonized, the verdicts are not necessarily inconsistent.
Defendant argues that a mere numerical poll was inadequate and, therefore, the trial court should have talked to the jurors
in camera
to determine whether they understood the court’s instructions. He relies on ORCP 59G, ORS 136.330,136.480 and 136.485. Defendant did not ask the trial
court to direct the jury to reconsider its verdicts under ORS 136.480 or 136.485. Further, the trial court complied with ORCP 59G and ORS 136.330 by numerically polling the jury. Polling is a procedure designed to test the numerical validity of a verdict at the time it is rendered.
Sandford v. Chev. Div. of Gen. Motors,
292 Or 590, 614, 642 P2d 624 (1982). Defendant cites no authority, and we are aware of none, authorizing a trial court to question jurors concerning their thought processes, their understanding of the law, or the reasons for their verdicts. Inquiry is limited to whether each juror agrees with the verdict. The trial court did not err in refusing to talk to the jury
in camera
for the purposes suggested by defendant.
II.
Defendant next contends that the trial court erred in excluding certain hearsay evidence. During cross-examination of prosecution witness Baldón, defendant made an offer of proof that Baldón would testify that two weeks before his murder Sevilla asked her for a weapon, stating that he feared Moen would kill him for his drugs, money, and girlfriend. Defendant argued that the evidence was admissible under OEC 803 (3)
or OEC 804(3) (b),
or as circumstantial evidence that defendants were not the only persons with a motive to kill Sevilla. The prosecutor objected on the ground that the evidence was hearsay not subject to any exception. The trial court sustained the objection and excluded the evidence.
Sevilla’s statement to Baldón was hearsay.
Hearsay
is inadmissible except as provided in OEC 801-806 or as otherwise provided by law. OEC 802. Defendant argues that Baldon’s testimony is admissible under OEC 803(3) as evidence of Sevilla’s state of mind or emotions.*
The trial court found that
Sevilla’s
state of mind or emotions was too remote to be relevant to any fact in issue at the trial.
We agree.
Defendant argues in the alternative that Baldon’s testimony is admissible under OEC 804(3)(b) as a statement Sevilla made in belief of his impending death
i.e.,
a “dying declaration.” The trial court found that the statement was not a dying declaration.
Again, we agree. Sevilla did not speak “while believing that [his] death was imminent.” He may have feared his death was imminent, but in attempting to obtain a weapon, he showed that he intended to defend himself and to live. OEC 804(3)(b)’s plain language establishes its inapplicability here.
Defendant argues that Baldon’s testimony is “circumstantial evidence relating to the issue of motive, [i.e.,] that somebody else could have had an equal motive [to kill Sevilla]. It undercuts the State’s theory that [defendants] killed [Sevilla].” The trial court conceded that if offered to prove the truth of the matter asserted,
i.e.,
that Moen wanted to kill
Sevilla, Baldon’s testimony may have been relevant.
However, even if relevant, the hearsay was inadmissible unless it came within some OEC exception or other basis for admissibility, and the court found none. Neither do we.
Defendant argues that Baldon’s testimony should have been admitted because it has reliability equivalent to that of evidence falling within other hearsay exceptions. He notes that Sevilla’s statement was specific as to the person he feared and as to the reason he feared Moen wanted to kill him. Specificity alone, however, does not establish truthfulness. Sevilla’s statement was uncorroborated and it was accompanied by no other indicia of reliability. The hearsay has no equivalent circumstantial guarantees of trustworthiness as do other recognized hearsay exceptions. Thus, it provides no basis for giving it any greater reliability than hearsay in general.
Defendant points to Baldon’s status as a key prosecution witness as weighing in favor of the reliability of her testimony. In making that argument, defendant misunderstands the hearsay rule. As we stated in
Sheedy v. Stall,
255 Or 594, 596-97, 468 P2d 529 (1970):
“It is not the untrustworthiness of the testimony of the witness on the stand who is asked to testify to what the declarant said that causes the exclusion of hearsay testimony. The credibility of the witness can be tested by cross-examination. The problem of the trustworthiness of the witness in the courtroom is the same whether the witness is testifying to another’s conduct or to another’s words. It is the untrustworthiness of the declarant’s statement that causes hearsay testimony to be excluded.”
While the jury could assess Baldon’s credibility, it could not assess Sevilla’s.
Finally, defendant argues that his constitutional right to confront and cross-examine his accusers and, thus, his right to a fair trial was abridged by exclusion of Baldon’s testimony. He relies on Article I, sections 10 and 11, of the Oregon Constitution, the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and
Chambers v. Mississippi,
410 US 284, 298-302, 93 S Ct 1038, 35 L Ed 2d 297 (1973). Defendant made
no
constitutional argument in the trial court. As previously indicated, the Court of Appeals affirmed without opinion. We decline to consider defendant’s state constitutional claim because he has failed to brief or argue any independent state constitutional theory. The only Oregon authority he cites is
Jorgensen/Brom v. Cupp,
31 Or App 157, 570 P2d 86, (1977),
rev den
281 Or 323, (1978),
cert den
439 US 844 (1978), a case decided solely on Sixth Amendment grounds. Accordingly, this opinion decides nothing under the Oregon Constitution. We proceed to consider defendant’s federal constitutional claim.
In
Chambers,
the defendant called one McDonald as a witness to introduce McDonald’s written confession of the murder for which the defendant was then being tried. McDonald repudiated his confession and asserted an alibi. The trial court denied defendant’s request to cross-examine McDonald as an adverse witness concerning the circumstances of his repudiation of his confession, his alibi, and with regard to other oral confessions allegedly made by McDonald on the ground that a party could not impeach his own witness. The court also excluded as inadmissible hearsay the testimony of three other witnesses as to oral confessions McDonald allegedly made to each of them shortly after the murder. In reversing Chambers’ conviction, the United States Supreme Court explained:
“The hearsay rule, which has long been recognized and respected by virtually every State, is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact. Out-of-court statements are traditionally excluded because they lack the conventional indicia of reliability: they are usually not made under oath or other circumstances that impress the speaker with the solemnity of his statements; the declarant’s word is not subject to
cross-exmaination; and he is not available in order that his demeanor and credibility may be assessed by the jury. A number of exceptions have developed over the years to allow admission of hearsay statements made under circumstances that tend to assure reliability and thereby compensate for the absence of the oath and opportunity for cross-examination. * * * Few rights are more fundamental than that of an accused to present witnesses in his own defense.
In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.
* * *” 410 US at 298-302 (Emphasis added; citations and footnotes omitted).
The hearsay statements involved in
Chambers
were originally made under circumstances that provided considerable assurances of their reliability.
Moreover, the circumstances under which the evidence was introduced provided the jury with an opportunity to assess the declarant’s credibility in repudiating his prior statement. The declarant, McDonald, was available to testify under oath, to be cross-examined, and to have his answers and demeanor weighed by the jury. The testimony rejected by the trial court bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony was directly inconsistent with Chambers’ guilt.
Chambers
does not require, as defendant appears to suggest, admission of all exculpatory evidence, however remote or lacking in reliability.
The reliability of the hearsay evidence in this case falls far short of that in
Chambers.
It bore no indicia of reliability. It was not corroborated in any way, nor did defendant offer any corroborating evidence. Unlike
Chambers,
the declarant was not available to testify under oath. Finally, the evidence offered herein was of far less
importance than that involved in
Chambers.
Even if believed, the evidence showed only that Sevilla feared Moen. It did not negate defendant’s guilt. Unlike the defendant in
Chambers,
defendant here did not offer to call any other witness at trial to corroborate either that Sevilla had made the statement or that the statement itself was truthful or reliable. We conclude that Sevilla’s statements were not made under circumstances that provided any assurances of their reliability. Nor was there any means by which the jury could assess Sevilla’s credibility in making the statements. Because the hearsay was not admissible under any OEC or other exception, the trial court properly excluded it. We find no error.
The decisions of the Court of Appeals and the trial court are affirmed.