State v. Scott

• Decision Date: 10 March 2021
• Docket Number: A170781 (Control),A170782
• Citation: 483 P.3d 701,309 Or.App. 615
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Christie R. SCOTT, Defendant-Appellant.
• Court: Oregon Court of Appeals

309 Or.App. 615

483 P.3d 701

STATE of Oregon, Plaintiff-Respondent,

v.Christie R. SCOTT, Defendant-Appellant.

A170781 (Control)

A170782

Court of Appeals of Oregon.

Submitted November 24, 2020.

March 10, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kali Montague, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, filed the brief for respondent.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

Mooney, J., concurring.

DEHOOG, J.,

In Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), the United States Supreme Court held that the Sixth Amendment to the United States Constitution requires a jury to be unanimous for it to convict a defendant of a serious offense. In State v. Flores Ramos , 367 Or. 292, 299, 478 P.3d 515 (2020), the Oregon Supreme Court held that the Sixth Amendment is violated when a trial court instructs the jury that it can convict a defendant of a serious offense without being unanimous. In this case, over defendant's objection, the trial court instructed the jury that it could convict defendant of four felony crimes without unanimously finding her guilty. The jury returned three guilty verdicts, and neither party requested a jury poll.

In these consolidated appeals, defendant challenges her resulting convictions and her subsequent probation revocation, contending that we must reverse her convictions because they were obtained after a violation of her federal constitutional rights and the state has failed to show that the violation was harmless beyond a reasonable doubt. The state acknowledges that the jury instruction was erroneous, but it argues that defendant failed to preserve the issue. As explained below, we agree with defendant and, accordingly, reverse and remand.

In the case at issue in appeal number A170781, defendant was charged with four felony counts. Before trial, she asked the court to instruct the jury that it must render a unanimous verdict. During trial, the court denied that request and, instead, instructed the jurors that 10 or more of them had to agree to render a verdict. Defendant excepted to the nonunanimous jury instruction. The jury found defendant guilty of three of the charged crimes. After the jury rendered its verdict, the court asked whether either party wanted the jury polled, and both the state and defendant declined. Based on the resulting convictions, defendant's probation in the case at issue in appeal number A170782 was revoked.

On appeal, defendant challenges her three convictions in appeal number A170781, as well as the probation revocation in appeal number A170782. She argues that the court's nonunanimous jury instruction violated the Sixth Amendment, and she points out that, under well-settled federal harmlessness law, the beneficiary of a constitutional violation must demonstrate that the error was harmless beyond a reasonable doubt. Chapman v. California , 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Here, she argues, the state failed to make the record necessary to demonstrate that the erroneous jury instruction was harmless, because it declined the trial court's offer to poll the jury. Accordingly, she contends that we must reverse her convictions and the resulting probation violation. The state responds that, although defendant proffered a correct instruction and excepted to the unconstitutional instruction that the trial court gave, we may not reverse her convictions, because defendant, rather than the state, was required to have the jury polled in order to preserve her contention that the nonunanimous jury instruction was unconstitutional.

At the outset, we observe that defendant is correct both that her Sixth Amendment rights were violated by the trial court's erroneous instruction and that the beneficiary of a preserved federal constitutional error bears the burden of proving the harmlessness of that error beyond a reasonable doubt. Indeed, the state does not dispute either of those points. As noted above, the Oregon Supreme Court explained in Flores Ramos , 367 Or. at 299, 478 P.3d 515, that the Sixth Amendment is violated not only when a trial court accepts nonunanimous verdicts, but also "when a trial court tells the jury that it can convict a defendant of a serious offense without being unanimous." That is, a defendant's federal constitutional rights are violated when the trial court instructs the jury that it can convict the defendant of a serious offense without unanimity.

When a defendant's federal constitutional rights are violated, the federal harmless-error inquiry controls whether the defendant's conviction must be reversed. Flores Ramos , 367 Or. at 319, 478 P.3d 515 ("When a federal constitutional error is not structural, the conviction can be affirmed only if the error ‘was harmless beyond a reasonable doubt.’ " (Quoting Arizona v. Fulminante , 499 U.S. 279, 307-08, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991).). That inquiry requires the beneficiary of the violation to prove beyond a reasonable doubt that the violation did not contribute to the defendant's conviction. Chapman , 386 U.S. at 24, 87 S.Ct. 824 ; see also, e.g., Fulminante , 499 U.S. at 295-96, 111 S.Ct. 1246 (noting that the state, the beneficiary of the constitutional violation, bore the burden of proving that the constitutional violation "did not contribute to [the defendant's] conviction"). Cf. United States v. Olano , 507 U.S. 725, 734, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) (noting, under federal rules of criminal procedure, that, as to unpreserved errors, "[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice," whereas preserved errors are subject to ordinary harmless-error inquiry, with burden of proving harmlessness resting on the Government).

Here, because the jury was not polled, we do not know whether the Sixth Amendment violation contributed to defendant's conviction; we do not know whether, in accordance with the unconstitutional instruction, the jury convicted defendant on less than a unanimous vote. Under the federal harmlessness inquiry, that deficiency in the record falls on the state, because it is the beneficiary of the constitutional violation.

In an effort to avoid that straightforward analysis, the state contends that we should not reach the merits of defendant's appeal because defendant failed to adequately preserve her argument that the jury instruction violated her Sixth Amendment rights. Preservation requires "that an issue, to be raised and considered on appeal, ordinarily must first be presented to the trial court." Peeples v. Lampert , 345 Or. 209, 219, 191 P.3d 637 (2008) ; see also id. at 219-20, 191 P.3d 637 (the policies underlying the preservation requirement are giving "a trial court the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made"; ensuring "fairness to an opposing party, by permitting the opposing party to respond to a contention and by otherwise not taking the opposing party by surprise"; and fostering "full development of the record, which aids the trial court in making a decision and the appellate court in reviewing it").

In this case, as recounted above, defendant asked the court to instruct the jury that its verdict had to be unanimous to convict. After the court declined and, instead, instructed the jury that its verdict did not have to be unanimous, defendant took exception to the instruction given.

Defendant's request for a unanimous jury instruction and objection to the nonunanimous jury instruction that the trial court gave instead satisfied all of the policies underlying the preservation requirement. As particularly relevant here, it fostered full development of the record. Specifically, in light of the well-established federal harmlessness analysis discussed above, defendant's invocation of her Sixth Amendment right to jury unanimity alerted the state that, if defendant's Sixth Amendment argument ultimately proved correct, the state would bear the burden of showing harmlessness on appeal. Thus, it gave the state the opportunity to fully develop the record that would be necessary to show that the constitutional violation was harmless beyond a reasonable doubt. Accord State v. Dilallo , 367 Or. 340, 347, 478 P.3d 509 (2020) ("The fact that the opposing party may need to take additional steps to develop the record in order to address an assignment of error is one of the reasons that a timely objection is required."). In support of its argument to the contrary, the state suggests three lines of reasoning. First, the state asserts that the outcome in Dilallo —where the defendant did not object to a nonunanimous jury instruction and there was no jury poll—controls the outcome in this case, where defendant did object to the instruction. In Dilallo , the court explained that it would not exercise its discretion to correct plain error because the "defendant did not put the state or the court on notice of his objection to the jury instruction, so the absence of a jury poll is fairly attributable to defendant, even if the state would otherwise bear the burden of establishing harmlessness on appeal." 367 Or. at 347, 478 P.3d 509. That rationale has no bearing here, where defendant did put the state and the trial court on notice of her objection to the jury instruction, and Dilallo therefore does not control.

Second, somewhat at odds with its acknowledgment that, under Ramos , the trial court erred in instructing the jury that it could render a nonunanimous verdict, the state attempts to recast the constitutional error relevant to our analysis as the court's act of accepting nonunanimous verdicts. Under that view, it argues that, to preserve the issue for...