State of Oregon v. Phillip Mark Gregg

Non-unanimous jury instructions are plain error. However, when the jury poll is unanimous, the error is considered to be “harmless beyond a reasonable doubt.” State v. Ramos, 367 Or 292, 320 (2020).

Defendant was convicted of first-degree rape. Defendant assigned error to jury instructions which permitted a 10-2 guilty verdict. Defendant did not object to the instruction, and the jury returned a unanimous guilty verdict.  Defendant argued that the jury instruction constituted structural error and that, even if the error was not structural, it was not harmless. Non-unanimous jury instructions are plain error. However, when the jury poll is unanimous, the error is considered to be “harmless beyond a reasonable doubt.” State v. Ramos, 367 Or 292, 320 (2020). But, because non-unanimous jury instructions violate a defendant’s Sixth Amendment rights, when the error is apparent on the record and not reasonably in dispute, the error is plain.  Accordingly, the Court held that the jury instructions here, though not structural, did constitute plain error.  Nevertheless, because defendant did not preserve this error for appellate review, and the error was not “grave,” the Court opted not to exercise its discretion to review, explaining that “one of the purposes of the preservation requirement is to ensure that opposing parties are put on notice of the need to further develop the record.”  Affirmed.