State v. Ciraulo

• Decision Date: 24 December 2020
• Docket Number: CC 17CR72865, 18CR39718 (SC S067569)
• Parties: STATE of Oregon, Respondent on Review, v. Peter Anthony CIRAULO, Petitioner on Review.
• Court: Oregon Supreme Court

367 Or. 350

478 P.3d 502

STATE of Oregon, Respondent on Review,

v.Peter Anthony CIRAULO, Petitioner on Review.

CC 17CR72865, 18CR39718 (SC S067569)

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, and Benjamin Gutman, Solicitor 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.

DUNCAN, 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 criminal defendant of a serious offense.

Defendant was charged with first-degree forgery, possession of a forged instrument, and third-degree theft. Defendant was tried before a twelve-person jury, in a trial that occurred before the Supreme Court's decision in Ramos . Before trial, defendant requested that the jury be instructed that it needed to be unanimous in order to return a conviction. The trial court denied defendant's request, stating: "[U]ntil the Court of Appeals tells me otherwise, I'll continue to comply with the law that requires the ten-person verdict in felony cases." The jury was instructed that ten votes were sufficient for a guilty verdict. After deliberation, the jury found defendant guilty of all three counts. The jury's verdict form listed each count, with the words "Not Guilty" and "Guilty" on the lines below each count. Below each of the three counts, a juror had written the number "0" next to the words "Not Guilty" and the number "12" next to the word "Guilty." After receiving the verdict form, the trial court asked the presiding juror whether the jury's decision had been unanimous, and the presiding juror confirmed that it had been. The trial court asked defendant whether there was any need to poll the jury further, and defense counsel responded that there was not.

Defendant appealed, assigning error to the non-unanimous jury instruction, along with some other issues not relevant on review. In a decision issued before the Supreme Court's decision in Ramos , the Court of Appeals affirmed defendant's convictions. State v. Ciraulo , 301 Or. App. 849, 459 P.3d 960 (2020).

Defendant filed a petition for review which, after the Supreme Court decided Ramos , we allowed. Defendant argues that Ramos requires that all of his convictions be reversed. He first contends that the nonunanimous jury instruction was a structural error, which always requires reversal. In the alternative, he argues that, even if the error is subject to a harmlessness analysis, 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).

The state argues that the instructional error is harmless with respect to all of defendant's convictions, because each of those convictions is based on a unanimous verdict.¹

Our decision in State v. Flores Ramos , 367 Or. 292, ––– P.3d –––– (2020), also issued today, resolves nearly all of the questions in this case. In Flores Ramos , the defendant made identical arguments that the jury instruction permitting nonunanimous verdicts was structural error, that it could not be held harmless 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. In Flores Ramos , we held that instructing the jury that it could return a nonunanimous guilty verdict was not a structural error. 367 Or. at 319, ––– P.3d ––––. We also held that, where the jury poll revealed that the jury unanimously found the defendant guilty of the charged offense, the nonunanimous jury...