State v. Chorney-Phillips

• Decision Date: 24 December 2020
• Docket Number: CC 17CR81310 (SC S067557)
• Citation: 367 Or. 355,478 P.3d 504
• Parties: STATE of Oregon, Respondent on Review, v. Zackery Joshua CHORNEY-PHILLIPS, Petitioner on Review.
• Court: Oregon Supreme Court

367 Or. 355

478 P.3d 504

STATE of Oregon, Respondent on Review,

v.Zackery Joshua CHORNEY-PHILLIPS, Petitioner on Review.

CC 17CR81310 (SC S067557)

Supreme Court of Oregon, En Banc.

Argued and submitted August 18, 2020.

December 24, 2020

Joshua B. Crowther, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

Christopher A. Perdue, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney, General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General.

Scott Sell, Thomas, Coon, Newton & Frost, Portland, filed the brief for amicus curiae Street Roots.

Jonathan Zunkel-deCoursey, Schwabe, Williamson & Wyatt, P.C., Portland, filed the brief for amicus curiae Immigrant and Refugee Community Organization. Also on the brief was Jeanice Chieng, Immigrant and Refugee Community Organization, Portland.

Cody Hoesly, Larkins Vacura Kayser LLP, Portland, filed the brief for amici curiae NAACP Corvallis Branch #1118, NAACP Eugene-Springfield Branch, #1119, NAACP Portland Chapter 1120B, and NAACP Salem-Keizer Branch #1166.

Timothy Wright, Tonkon Torp LLP, Portland, filed the brief for amicus curiae Don't Shoot Portland. Also on the brief was J. Ashlee Albies, Albies & Stark, Portland.

Nathan R. Morales, Perkins Coie LLP, Portland, filed the brief for amici curiae The Coalition of Communities of Color and Latino Network. Also on the brief was Misha Isaak.

Aliza B. Kaplan filed the brief on behalf of amicus curiae Criminal Justice Reform Clinic at Lewis & Clark Law School. Also on the brief was Sarah Laidlaw.

FLYNN, J.

In this case, we again address the application of the United States Supreme Court's decision in Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d. 583 (2020), which held that the Sixth Amendment requires a jury to be unanimous in order to convict a defendant of a serious offense.

Defendant was charged with first- and second-degree custodial interference and was found guilty on both counts by a twelve-person jury. In the trial, which occurred before the Supreme Court's decision in Ramos , the court instructed the jury that "[t]en or more jurors must agree on your verdict," and defendant did not object to that jury instruction. After the jury returned its verdict, on a form that contains no indication of how individual jurors voted, the trial court polled the jury at defendant's request. The trial court first informed the jurors that it would call on them one at a time, by seat number and explained, "I just want you to let me know if this was your verdict." The court then called the juror seat numbers one at a time, and each juror responded, "Yes." After the twelfth juror responded, the court asked defense counsel if he was satisfied, and he responded that he was. For purposes of sentencing, the court merged the jury's two guilty verdicts into one conviction for first-degree custodial interference and then entered judgment accordingly.

Defendant appealed, assigning error to the non-unanimous jury instruction, as well as to other rulings that are not at issue on review. In a decision issued before the Supreme Court's decision in Ramos , the Court of Appeals affirmed defendant's conviction without opinion. State v. Chorney-Phillips , 301 Or. App. 853, 455 P.3d 1049 (2020).

Defendant filed a petition for review, which this court allowed after the United States Supreme Court decided Ramos . Defendant argues that Ramos requires that his conviction be reversed. He first contends that the nonunanimous jury instruction was a structural error, which always requires reversal. In the alternative, he argues 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. See Chapman v. California , 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d. 705 (1967) (establishing the "harmless beyond a reasonable doubt" harmless error standard for federal constitutional violations). Acknowledging that his assignment of error was unpreserved, defendant also argues that his challenge to the nonunanimous jury instruction qualifies for plain error review and that this court should reverse defendant's convictions regardless of whether he objected to the jury instruction in the trial court.

The state does not dispute that the instruction was given in error, but it argues that the error is harmless because each of defendant's convictions is based on a unanimous verdict. The state also argues that defendant's acceptance of the jury poll in the trial court prevents him from challenging the adequacy of the jury poll on appeal.

Nearly all of the questions that this case raises are resolved by our decision in State v. Flores Ramos , 367 Or. 292, ––– P.3d –––– (2020), also issued today. In Flores Ramos , the defendant made identical arguments that a jury instruction permitting nonunanimous verdicts was structural error, that the error could not be held harmless error even if it were subject to a harmlessness analysis, and that the jury poll was insufficient to demonstrate that any of the jury's verdicts were, in fact, unanimous. We rejected each of those arguments. First, Flores Ramos held that instructing the jury that it could return a nonunanimous guilty verdict is not a structural error. 367 Or. at 319, ––– P.3d at ––––. Next, Flores Ramos held that, where the jury poll reveals that the jury unanimously found the defendant guilty...