State v. Ulery

• Decision Date: 04 June 2020
• Docket Number: CC 17CR79026 (SC S067084)
• Citation: 366 Or. 500,464 P.3d 1123
• Parties: STATE of Oregon, Respondent on Review, v. Adrian James ULERY, Petitioner on Review.
• Court: Oregon Supreme Court

366 Or. 500

464 P.3d 1123

STATE of Oregon, Respondent on Review,

v.Adrian James ULERY, Petitioner on Review.

CC 17CR79026 (SC S067084)

Supreme Court of Oregon, En Banc.

June 4, 2020

Kali Montague, Deputy Public Defender, Salem, filed the petition for petitioner on review. Also on the petition was Ernest G. Lannet, Chief Defender.

No appearance contra.

PER CURIAM

In 1934, Article I, section 11, of the Oregon Constitution was amended to permit "ten members of the jury" to "render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder." Since then, Oregon courts have routinely received guilty verdicts by a vote of 10 to two or 11 to one. The United States Supreme Court upheld that outlier practice in Apodaca v. Oregon , 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d. 184 (1972), but defendants have continued to object, arguing that Apodaca was infirm. In Ramos v. Louisiana , ––– U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d. 583 (2020), the United States Supreme Court agreed, overruling Apodaca ; concluding that the jury trial guarantee of the Sixth Amendment to the United States Constitution includes "a right to a unanimous verdict," id. at ––––, 140 S. Ct. at 1402 ; and holding that that right is incorporated into and made applicable to the states through the Due Process Clause of the Fourteenth Amendment, id. at ––––, 140 S. Ct. at 1397. Ramos leaves no doubt that our state's acceptance of nonunanimous guilty verdicts must change and that the convictions in many such cases now on appeal must be reversed. This case presents the question of whether a defendant is entitled to reversal even where the challenge to a nonunanimous verdict was not preserved in the trial court and was raised for the first time on appeal—that is, whether such a challenge may be raised as a "plain error" that an appellate court should exercise its discretion to correct. We conclude that the answer is yes.

Defendant was charged with two counts of first-degree sexual abuse, and he exercised his right to trial by jury. He did not object to the jury being instructed that it could return a nonunanimous guilty verdict; his list of requested jury instructions included the uniform criminal jury instruction for a verdict in a felony case, an instruction that—consistent with Oregon law—informed the jury that 10 votes to convict, from a jury of 12, were sufficient for a guilty verdict. The jury convicted defendant of both counts. At defendant's request, the jury was polled, revealing that both verdicts were nonunanimous. The trial court, without objection from defendant, received the verdicts.

Defendant appealed, assigning error to the jury having been instructed that it could return a nonunanimous verdict and to the receipt of nonunanimous verdicts. Defendant acknowledged that he had not preserved the issue in the trial court, but he requested plain error review. The Court of Appeals—before Ramos was decided—affirmed without opinion. State v. Ulery , 299 Or. App. 279, 449 P.3d 590 (2019).

After Ramos issued, the state, through a letter to the court and a notice filed in this case, conceded that, because defendant's convictions were based on nonunanimous verdicts, they could not be sustained in light of the Supreme Court's holding in Ramos . The state also conceded that the issue would qualify as plain error under ORAP 5.45(1) and advised this court that, if we were to exercise our discretion to correct the unpreserved error, we should reverse defendant's convictions and remand for a new trial. For the reasons that follow, we accept the state's concession, exercise our discretion to review the error, and reverse defendant's convictions.

As an initial matter, we consider whether the fact that defendant requested the uniform instruction informing the jury that it could return a nonunanimous guilty verdict makes any error invited. See State v. Harris , 362 Or. 55, 67, 404 P.3d 926 (2017) ("As this court has long held, invited error is no basis for reversal."). Although the doctrine of invited error can apply when a party requests an instruction and later assigns error to that very instruction, we decline to apply it under these circumstances. Defendant sought a standard instruction that correctly expressed Oregon law at the time of his trial. Defendant's request for the jury instruction was not the source of the error, nor did it make the error more likely. Even if defendant had not requested the instruction, Oregon law required that instruction and also required the trial court to receive any jury verdict supported by 10 votes. For that reason, it cannot be said that "defendant was actively instrumental in bringing [the error] about." Anderson v. Oregon Railroad Co. , 45 Or. 211, 217, 77 P. 119 (1904).

When a party has failed to preserve an assignment of error, we consider that error only if it is plain.

ORAP 5.45(1). "For an error to be plain error, it must be an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court to choose among competing inferences." State v. Vanornum , 354 Or. 614, 629, 317 P.3d 889 (2013). The state concedes that those conditions are met here, and, for the following reasons, we accept that concession. The error in receiving the jury's nonunanimous guilty verdicts was an error of law and, after Ramos , an obvious one. Whether an error occurred is generally determined by the law at the time of the appellate decision, and nothing in our cases or the text of ORAP 5.45(1) indicates that plain error review incorporates its own nonretroactivity rule. See State v. Zavala , 361 Or. 377, 380 n. 1, 393 P.3d 230 (2017) ("When used to describe a trial court's ruling that was not erroneous under existing law, the term ‘plain error’ is a misnomer; it does not imply any mistake by a trial court. Instead, it is a label that an appellate court uses when it decides that a party is entitled to a benefit of a change in the law."); Griffith v. Kentucky , 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d. 649 (1987) (federal constitutional decisions apply retroactively to cases on direct appeal).

Because the jury was polled, the error was also one that appeared on the record, without requiring competing inferences. Unlike in State v. Gornick , 340 Or. 160, 130 P.3d 780 (2006), nothing in the record supports an inference that the trial court's receipt of nonunanimous verdicts was anything other than a violation of the constitution.

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