State v. Ross

• Decision Date: 25 February 2021
• Docket Number: CC 18CR32198,19CR45558 (SC S067936)
• Citation: 481 P.3d 1286,367 Or. 560
• Parties: STATE of Oregon, Plaintiff-Adverse Party, v. Michael Stuart ROSS, Defendant-Relator.
• Court: Oregon Supreme Court

367 Or. 560

481 P.3d 1286

STATE of Oregon, Plaintiff-Adverse Party,

v.Michael Stuart ROSS, Defendant-Relator.

CC 18CR32198

19CR45558 (SC S067936)

Supreme Court of Oregon, En Banc.

Submitted on the briefs January 4, 2021.

February 25, 2021

Laura Graser, Portland, filed the briefs for relator.

No appearance contra.

NAKAMOTO, J.

This mandamus proceeding arises out of a criminal case in which both relator and the state asked the trial court to instruct the jury that it could acquit defendant by a vote of 10-to-2. The trial court concluded that, in the wake of Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d. 583 (2020), any verdict on serious criminal charges—whether to convict or to acquit—must be unanimous, and the court informed the parties that it would instruct the jury accordingly. Relator contends that, although the Supreme Court's holding in Ramos would render a nonunanimous guilty verdict in his trial unconstitutional under the Sixth Amendment, that holding did not affect the viability of Oregon law—specifically, Article I, section 11, of the Oregon Constitution and ORS 136.450 —authorizing a nonunanimous not-guilty verdict. We agree with relator and issue a peremptory writ of mandamus ordering the trial court to instruct the jury that Oregon law requires a unanimous guilty verdict for all charges and permits a not-guilty verdict by a vote of 11-to-1 or 10-to-2.

BACKGROUND

The limited facts are procedural. In 2018 and 2019, relator was charged with murder and several other crimes in two consolidated cases.

On April 20, 2020, before defendant's trial, the United States Supreme Court issued its decision in Ramos . In a discussion in chambers in July 2020, the trial court indicated that, in light of Ramos , it intended to instruct the jury that it needed to be unanimous to convict or acquit relator of any of the charged crimes. In a pretrial hearing two days later, the parties further discussed that issue with the trial court. The trial court began by restating its position that a jury instruction requiring unanimity for both convictions and acquittals was required by Ramos . The trial court explained that it read Ramos as having "relegated to the dustbin of history," Ramos , 590 U.S. at ––––, 140 S. Ct. at 1410 (Sotomayor, J., concurring), the provisions of Oregon law permitting nonunanimous verdicts, insofar as those provisions had their origins in racial animus. The trial judge stated that he had been conferring with many judges about the issue, some of whom agreed with his position.

Relator disagreed with the trial court's interpretation of Ramos . Relator argued that the discussion in Ramos of the racist history of laws permitting convictions by nonunanimous juries had not been the basis for the Supreme Court's holding that unanimity was required for guilty verdicts; rather, that history had been relevant only to the Supreme Court's decision to overrule prior precedent upholding nonunanimous convictions. Relator further argued that, under Oregon law, the jury was permitted to return a nonunanimous acquittal and that Ramos did not call into question the constitutionality of that provision. Relator therefore asked the trial court to instruct the jury that it needed to be unanimous to convict but that it could acquit by a vote of 10 to 2.

The state agreed with relator. Although the prosecutor indicated that he was personally sympathetic to the trial court's interpretation of Ramos , he informed the court that the state was requesting the same jury instruction sought by relator, to avoid generating an appealable issue.

After argument by the parties, the trial court decided that, consistently with its original inclination, it would instruct the jury that it needed to be unanimous either to convict or to acquit defendant. The trial court encouraged defendant to petition this court for a writ of mandamus to obtain a definitive answer to the question, and it postponed the trial, in part to facilitate that process.

The trial court then entered an order containing its reasoning as well as its ruling on the jury instruction issue. The trial court explained:

"Despite the U.S. Supreme Court's emphatic denouncement of Oregon's non-unanimity rule as systemically racist, this Court is yet asked to continue to partially apply the rule for verdicts of acquittal. I am asked to focus only on Part 1 of the Ramos decision—holding that the Sixth Amendment only requires unanimity for a guilty verdict. This argument seems to suggest that the Court should uphold a systemically racist law so long as it is only used to discriminate against jurors of color when they vote to convict. But it cannot be used to discriminate against jurors of color whose votes are acquittal."

The court also discussed the concurring opinions of Justices Kavanaugh and Sotomayor in Ramos , which it understood to support its view that nonunanimous acquittals can no longer be permitted in Oregon. The trial court reasoned that "[a]llowing a systemically racist law to silence jurors of color who vote to find a defendant guilty is just as odious to victim's rights as is allowing it to silence jurors of color who vote to acquit." The court also stated that, "[f]ollowing the Ramos decision, this acquittal jury instruction issue has arisen numerous times in this County and the bench and bar would greatly benefit from the Oregon Supreme Court's guidance on this issue before the trial is held."

Relator filed a petition for writ of mandamus in this court. Relator reprised his arguments to the trial court and emphasized that, in Ramos , the Supreme Court's discussion of the history of the nonunanimous jury provisions in Oregon and Louisiana had been relevant only to the discussion of stare decisis , rather than an independent basis for holding those laws unconstitutional.

This court issued an alternative writ of mandamus, requiring the trial court either to vacate its order or to show cause why it had not. The trial court chose not to vacate its order. After relator filed his opening brief, the state waived its appearance, and the case was submitted without argument.

ANALYSIS

An initial question in this case is whether issuance of a writ of mandamus is appropriate. As noted, the trial court invited relator to pursue a writ of mandamus in this court because it thought that a quick resolution of the issue by this court would benefit the bench and the bar. Relator likewise contends that mandamus is appropriate, and the state, in waiving its appearance, has not disagreed. We agree with the trial court that, in light of the significant number of pending criminal cases that could be affected by this issue and the apparent uncertainty among some trial court judges about how to proceed, it is better for us to answer this question sooner rather than later.

Still, a writ of mandamus "shall not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law." ORS 34.110. We agree that that requirement is met, although, because of the absence of disagreement about the appropriateness of mandamus, we address that subject only briefly.

A jury instruction that misstates the requirements for acquittal presents a potential for harm that may not be remediable on appeal. If a jury instructed in that manner convicts the defendant, the defendant can appeal, but the error ultimately may be found harmless, which would preclude relief. The greater potential of harm to defendants would come in cases when the jury is instructed on a requirement of unanimity for acquittal but only 10 or 11 jurors vote in favor of acquittal. If defendant is correct, that would be a verdict of acquittal under Oregon law. But under the trial court's proposed instruction, the nonunanimous vote would result in a mistrial, thereby allowing a retrial. A defendant could not appeal from that nonverdict and would potentially face two additional difficulties in obtaining relief though a writ of mandamus at that point. The first would be showing how jurors had voted, because parties are entitled to a poll of the jury when a verdict is received, see ORCP 59 G(3) ("[w]hen the verdict is given, * * * the jury may be polled"), but the basis for a defendant to ascertain votes by the jurors is less clear when a mistrial is declared.¹ The second is that it is not clear what relief would be available on appeal, given the uncertain propriety of barring another prosecution based on a potential verdict of acquittal that was never returned. It may be that those hurdles are surmountable, but, at this juncture, we cannot conclude that relator has any plain alternative remedy. See State ex rel. Dewberry v. Kulongoski , 346 Or. 260, 271, 210 P.3d 884 (2009) ("[A] ‘plain’ remedy is one that is obvious, clear, and without uncertainty."). We therefore conclude that, in the unusual circumstances of this case, and considering the unique risks created by an instruction misstating the legal requirements for an acquittal, mandamus is a proper remedy. Accordingly, we decide the merits of defendant's argument that, notwithstanding the Ramos decision, Oregon law requires the trial court to instruct the jury that it may return a verdict of acquittal based on a 10-2 or 11-1 vote.

Two provisions of Oregon law, Article I, section 11, and ORS 136.450, authorize nonunanimous verdicts. Article I, section 11, provides that, in criminal cases, "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 other-wise[.]" In addition to that constitutional authority, ORS 136.450 provides for nonunanimous jury verdicts, when the jury consists of 12 jurors: "The verdict of a trial jury in a criminal action shall be by concurrence of at least 10 of 12 jurors." Those provisions authorize the receipt of nonunanimous not-guilty verdicts as well as—except in certain murder cases—guilty verdicts.

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