STATE v. CIRAULO (2020)

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 instruction could be held harmless beyond a reasonable doubt. Id. at 320, ––– P.3d ––––. We also rejected the defendant's argument that a jury poll could not reliably show that the jury's verdict was unanimous. Id. at 324, ––– P.3d ––––.

For the same reasons as in Flores Ramos, we reject defendant's identical arguments. However, defendant does, albeit cursorily, offer one additional argument: that the record does not demonstrate that the jury's verdict was unanimous, arguing that, “[a]t most, it shows that one juror thought that they were” and suggesting that the presiding juror may not have known what the word “unanimous” meant. We rejected a similar argument in Flores Ramos, stating that

“we are skeptical that jurors would not understand the word ‘unanimous’ or that jurors, however polled, would not respond honestly. See United States v. Poole, 545 F.3d 916, 921 (10th Cir. 2008) (rejecting an argument that jurors would not have understood the trial court's use of the word ‘nullity’).”

367 Or. at 324, ––– P.3d ––––. This record contains multiple indications that the jury's verdicts were unanimous—including written notations that the jury reached 12-0 verdicts—and any other conclusion would be entirely speculative.

As a result, we conclude that, although the jury instruction permitting nonunanimous verdicts was erroneous, the error was harmless beyond a reasonable doubt as to all of the verdicts in this case.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

FOOTNOTES

1.   One of defendant's convictions is for third-degree theft, a Class C misdemeanor punishable by a maximum of 30 days in jail. ORS 164.043(2); ORS 161.615(3). Neither party has addressed whether third-degree theft is a petty offense or whether any constitutional provision requires a jury verdict finding the defendant guilty of a petty offense to be unanimous. See Lewis v. United States, 518 U.S. 322, 325-26, 116 S. Ct. 2163, 135 L. Ed. 2d. 590 (1996) (holding that the Sixth Amendment's jury trial right does not apply to petty offenses). Because we would affirm defendant's third-degree theft conviction even if it were not a petty offense, we do not address those questions either.

DUNCAN, J.