State v. Ramos

• Decision Date: 24 December 2020
• Docket Number: CC 17CR30088 (SC S067105)
• Citation: 367 Or. 292,478 P.3d 515
• Parties: STATE of Oregon, Respondent on Review, v. Isidro Flores RAMOS, aka Santiago Flores Martinez, Petitioner on Review.
• Court: Oregon Supreme Court

367 Or. 292

478 P.3d 515

STATE of Oregon, Respondent on Review,

v.Isidro Flores RAMOS, aka Santiago Flores Martinez, Petitioner on Review.

CC 17CR30088 (SC S067105)

Supreme Court of Oregon, En Banc.

Argued and submitted August 18, 2020.

December 24, 2020

Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the brief were Ernest G. Lannet, Chief Defender, and Joshua B. Crowther, Deputy Public 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 on behalf of amicus curiae Street Roots.

Jonathan Zunkel-deCoursey, Schwabe, Williamson & Wyatt, P.C., Portland, filed the brief on behalf of 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 on behalf of 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 on behalf of 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.

GARRETT, J.

In this case, we again consider the effect 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 Amendment¹ requires a jury to be unanimous in order to convict a defendant of a serious offense. We have held that Ramos requires reversal of Oregon convictions based on nonunanimous jury verdicts. State v. Ulery , 366 Or. 500, 464 P.3d 1123 (2020). This case presents a different issue: After being instructed that it could convict defendant by a vote of 10 to two, the jury found defendant guilty of five crimes, four by unanimous verdicts and one by a nonunanimous verdict. Under Ramos and Ulery , the one conviction based on a nonunanimous verdict must be reversed. The additional question that we must answer in this case is whether the convictions based on unanimous verdicts must also be reversed, because the jury that returned them was instructed that it could convict defendant without reaching unanimity. Although we agree with defendant that instructing the jury that it could convict him by a nonunanimous vote violated the Sixth Amendment, we conclude that the error does not require any of defendant's unanimous convictions to be reversed.

I. BACKGROUND

A. Legal Context

We first clarify what we already have decided and the limited scope of the issues to be decided in this case. In Ramos , the Supreme Court held that the Sixth Amendment requires that the jury be unanimous to convict a criminal defendant of a serious offense and that that requirement is binding on the states through the Due Process Clause of the Fourteenth Amendment. 590 U.S. at ––––, 140 S. Ct. at 1397. The rule announced in Ramos applies to all cases now on appeal—regardless of whether the trial occurred before or after Ramos . Griffith v. Kentucky , 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d. 649 (1987) (holding that new rules of constitutional law apply to all cases still on direct appeal). Before Ramos , in every felony case tried to a jury in Oregon, a nonunanimous verdict of 10 votes out of 12 was sufficient for a conviction of any offense other than murder, and juries were so instructed. See Or. Const., Art. I, § 11 ("[I]n the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise[.]"). In many of those cases, the jury was polled, and the jury poll revealed that only 10 or 11 jurors agreed with the verdict on one or more counts of conviction.

Ramos makes clear that all convictions for serious offenses that were based on nonunanimous verdicts involved constitutional error—a violation of the defendant's Sixth Amendment right to jury unanimity. Not every constitutional error requires reversal of a conviction, but, in Ulery , we held that the receipt of a nonunanimous guilty verdict always does. 366 Or. at 504, 464 P.3d 1123. That is, we held that acceptance of a nonunanimous guilty verdict represents a sufficiently grave error to require reversal of the conviction, when the error is properly presented to an appellate court on appeal.

We further held in Ulery that reversal of nonunanimous convictions was appropriate even if the error had not been preserved in the trial court. As a general rule, Oregon appellate courts will consider assignments of error only where the error was properly objected to at trial. ORAP 5.45(1). In many cases, jurors were instructed that they could return nonunanimous guilty verdicts, and nonunanimous guilty verdicts were received, without any objection from the defendant—a circumstance that ordinarily would preclude appellate review. However, the state has conceded, and we have agreed, that receipt of nonunanimous verdicts qualifies as plain error, which is subject to reversal even when the assignment of error was not preserved. Ulery , 366 Or. at 503, 464 P.3d 1123. And the receipt of a nonunanimous verdict is an error sufficiently grave that appellate courts should exercise their discretion to correct the error on appeal, despite the state's interest "in avoiding the expense and difficulty associated with a retrial." Id. at 504, 464 P.3d 1123. Further, in State v. Williams , 366 Or. 495, 466 P.3d 55 (2020), we held that it was appropriate to waive the rules of appellate procedure to permit consideration of the nonunanimous jury issue in cases where the issue might not otherwise be considered properly presented on direct appeal.

Thus, under Ramos , Ulery , and Williams , the substantial majority of nonunanimous convictions on appeal at the time that Ramos was decided must be reversed, and many such convictions already have been reversed, typically by order rather than by published opinion. That much has already been decided. A significant question not yet resolved is whether Ramos requires convictions to be reversed when the jury was erroneously instructed that it could convict without being unanimous, but it nonetheless voted unanimously to convict—which is what happened with four of the counts in this case. The state presents a straightforward argument that a unanimous conviction renders the instructional error harmless because defendant ultimately received that to which he was entitled: unanimity. Thus, although the state agrees that defendant's lone nonunanimous conviction must be reversed, it contends that the unanimous convictions should be upheld. Defendant advances several contrary arguments, which we address in this opinion.

Before taking up those questions, we recite the facts of this case.

B. Factual and Procedural Background

Defendant broke into a home and sexually assaulted a nine-year-old girl. Defendant was charged with first-degree unlawful sexual penetration, first-degree sexual abuse, attempted first-degree rape, first-degree burglary, and coercion. Before trial, he filed a motion requesting that the jury be instructed that it needed to be unanimous to convict. The trial court denied that motion. The jury was instructed that,

"[a]s to each count, ten or more jurors must agree on your verdict. So whether your verdict is not guilty or guilty, at least ten of you must agree on that verdict. If you are divided nine to three, for example, you do not have a verdict."

After deliberations that lasted approximately an hour and a half, the jury returned guilty verdicts on each of the five counts. The trial court polled the jury by asking the jurors who voted "guilty" on each count to raise their hands.

The poll indicated that the jury had reached unanimous guilty verdicts on all counts except for the attempted first-degree rape count. On that count, only 10 jurors had voted to convict. Defendant did not object to the manner in which the trial court polled the jury, and defense counsel indicated that he was satisfied by the poll. The trial court received the verdicts and entered a judgment based on them.²

Defendant appealed. As relevant here, he assigned error to both the use of the nonunanimous jury instruction and the receipt of the nonunanimous verdict—assignments of error that he had preserved in the trial court. He argued that those errors required reversal of all his convictions. In a decision issued before Ramos , the Court of Appeals affirmed defendant's convictions without opinion. State v. Flores Ramos , 298 Or. App. 841, 449 P.3d 572 (2019). Defendant filed a petition for review in this court, which we held in abeyance until the Supreme Court issued its decision in Ramos . After Ramos was decided, we allowed review.

As noted, the jury returned five guilty verdicts, four of which were unanimous. On the charge of attempted first-degree rape, the jury was not unanimous. The state concedes that, under Ramos , defendant's conviction on that count cannot stand. We agree and reverse that part of the trial court's judgment. What we address in this opinion are the other four counts, where, despite being instructed incorrectly, the jury nonetheless voted unanimously to convict.

II. CONSTITUTIONAL ERROR

The central dispute in ...