State v. Chorney-Phillips

In Ramos v. Louisiana, 590 U.S. ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), the Supreme Court held that the Sixth Amendment requires a jury to be unanimous in order to convict a defendant of a serious offense. Even in light of that decision, for the court to address a defendant’s assignment of error which turns entirely on the sufficiency of the record to demonstrate jury unanimity “would be contrary to the basic goal of procedural fairness to the parties and to the trial court that motivates the preservation requirement.” State v. Dilallo, 367 Or 340, 348, ___ P3d ___ (2020) (internal citations omitted).

Defendant was charged with first- and second-degree custodial interference. The court instructed the twelve-person jury that ten or more jurors must agree on the verdict and defendant did not object to that instruction. Defendant was found guilty on both counts. A jury poll revealed that the verdict was unanimous. Defendant appealed, assigning error to the nonunanimous jury instruction. The Court of Appeals affirmed defendant’s conviction in a decision issued before the Supreme Court’s decision in Ramos. Defendant argued that Ramos requires that his conviction be reversed. Defendant asserted that the “nonunanimous jury instruction was a structural error, which always requires reversal” and that “the erroneous instruction requires reversal under the federal harmless error standard because the poll of the jury is insufficient to establish that the jury instruction was harmless beyond a reasonable doubt.” The State argued that, although the instruction was given in error, “the error is harmless because each of the defendant’s convictions is based on a unanimous verdict.” Under State v. Flores Ramos, instructing the jury that it could return a nonunanimous guilty verdict is not a structural error. 367 Or 292, 319 ___ P3d ___ (2020). Furthermore, where the jury poll reveals that the jury unanimously found the defendant guilty of the charged offense, the nonunanimous jury instruction can be held harmless beyond a reasonable doubt. Id. at 324. Thus, the Court held that “the instructional error was harmless as to the convictions that were clearly based on unanimous verdicts.” Affirmed.