State v. Merrill

Ramos established that Sixth Amendment requires that all jury verdicts for serious criminal offenses be unanimous. However, error may merit reversal only if the error substantially injured the rights of the petitioner. See State v. Ulery, 366 Or 500, 504 (2020). If an erroneously instructed jury still returns a unanimous verdict, then the error does not merit reversal. State v. Flores Ramos, 367 Or 292, 334 (2020).

Defendant was convicted of “fourth-degree assault” by a unanimous jury and “felony strangulation” by a non-unanimous jury. On appeal, Defendant assigned error to the court’s non-unanimous jury instructions. Defendant argued that the non-unanimous jury instruction was a "structural error" under Ramos v. Louisiana, 140 S.Ct. 1390 (2020). The State conceded the error with regard to the strangulation charge but argued that the error was insufficient for reversal of the assault conviction because the jury verdict there was unanimous. "The concept of structural error, by contrast, has been reserved for 'basic protections' without which 'a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.'" State v. Ramos, 367 Or 292, 300-301 (2020) (quoting Rose v. Clark, 478 U.S. 570, 576-77 (1986)). Ramos established that Sixth Amendment requires that all jury verdicts for serious criminal offenses be unanimous. However, error may merit reversal only if the error substantially injured the rights of the petitioner. See State v. Ulery, 366 Or 500, 504 (2020). If an erroneously instructed jury still returns a unanimous verdict, then the error does not merit reversal. State v. Flores Ramos, 367 Or 292, 334 (2020). First, the Court accepted the State’s concession that the non-unanimous jury verdict was plain error. Second, the Court found the error does not merit reversal of the assault conviction because the jury unanimously convicted Defendant of that offense. Therefore, the Court held that Defendant’s assault conviction did not merit reversal. Reversed in part and remanded.