State v. Flores Ramos

292

Argued and submitted August 18; decision of Court of Appeals affirmed in part

and reversed in part, judgment of circuit court affirmed in part and reversed in

part, and case remanded to circuit court for further proceedings

December 24, 2020

STATE OF OREGON,

Respondent on Review,

v.

ISIDRO FLORES RAMOS,

aka Santiago Flores Martinez,

Petitioner on Review.

(CC 17CR30088) (CA A167187) (SC S067105)

478 P3d 515

At defendant’s trial, and over his objection, the jury was instructed that it

could return nonunanimous guilty verdicts. The jury returned five guilty ver-

dicts, four of which were unanimous and one of which was nonunanimous. The

Court of Appeals affirmed defendant’s convictions. Held: (1) The jury instruction

permitting the jury to return nonunanimous verdicts violated defendant’s Sixth

Amendment rights under Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206

L Ed 2d 583 (2020); (2) the instructional error was not a structural error; (3) the

erroneous instruction was harmless beyond a reasonable doubt as to the convic-

tions based on unanimous verdicts; (4) under State v. Ulery, 366 Or 500, 464 P3d

1123 (2020), defendant was entitled to reversal of the single conviction based on

a nonunanimous verdict.

The decision of the Court of Appeals is affirmed in part and reversed in part.

The judgment of the circuit court is affirmed in part and reversed in part, and the

case is remanded to the circuit court for further proceedings.

En Banc

On review from the Court of Appeals.*

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

______________

* On appeal from Clackamas County Circuit Court, Douglas V. Van Dyk,

Judge. 298 Or App 841, 449 P3d 572 (2019).

Cite as 367 Or 292 (2020) 293

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.

The decision of the Court of Appeals is affirmed in part

and reversed in part. The judgment of the circuit court

is affirmed in part and reversed in part, and the case is

remanded to the circuit court for further proceedings.

294 State v. Flores Ramos

GARRETT, J.

In this case, we again consider the effect of the

United States Supreme Court’s decision in Ramos v.

Louisiana, 590 US ___, 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 rever-

sal of Oregon convictions based on nonunanimous jury ver-

dicts. State v. Ulery, 366 Or 500, 464 P3d 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 con-

vict 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 US 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 US 314, 107

S Ct 708, 93 L Ed 2d 649 (1987) (holding that new rules of

1

The Sixth Amendment to the United States Constitution provides that,

“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime shall

have been committed[.]”

Cite as 367 Or 292 (2020) 295

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 cir-

cuit 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 unani-

mous 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 seri-

ous offenses that were based on nonunanimous verdicts

involved constitutional error—a violation of the defendant’s

Sixth Amendment right to jury unanimity. Not every consti-

tutional 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. 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 nonunan-

imous 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 nonunan-

imous 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. And the receipt of a nonunanimous verdict is an

error sufficiently grave that appellate courts should exer-

cise 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. Further, in State v.

Williams, 366 Or 495, 466 P3d 55 (2020), we held that it was

296 State v. Flores Ramos

appropriate to waive the rules of appellate procedure to per-

mit 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 sub-

stantial 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 unani-

mously 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 instruc-

tional 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 convic-

tions 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.

Cite as 367 Or 292 (2020) 297

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 P3d 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 incor-

rectly, the jury nonetheless voted unanimously to convict.

II. CONSTITUTIONAL ERROR

The central dispute in this case is whether the trial

court’s instructional error permitting nonunanimous guilty

verdicts requires defendant’s unanimous convictions to be

reversed, either because it amounted to a “structural” error

that always requires reversal or, in the alternative, because

the error was not harmless. Before turning to those argu-

ments, we briefly address an additional argument made

by the state, which suggests that no constitutional error

occurred at all.

2

Although the jury returned five guilty verdicts, the first-degree unlawful

sexual penetration and first-degree sexual abuse counts merged for purposes of

conviction, so the judgment reflects four convictions.

298 State v. Flores Ramos

Defendant argues that the Sixth Amendment,

as incorporated through the Due Process Clause of the

Fourteenth Amendment, was violated when the trial court

instructed the jury that it could return a nonunanimous con-

viction. Although the state agrees that the instruction was

erroneous, it disagrees that the Sixth Amendment was vio-

lated simply by the giving of the instruction. The state argues

that an erroneous jury instruction amounts to a federal con-

stitutional violation only if there is “ ‘a reasonable likelihood

that the jury has applied the challenged instruction in a

way’ that violates the Constitution.” Estelle v. McGuire, 502

US 62, 72, 112 S Ct 475, 116 L Ed 2d 385 (1991) (quoting

Boyde v. California, 494 US 370, 380, 110 S Ct 1190, 108

L Ed 2d 316 (1990)). The state further argues that, because

the jury was unanimous on the four counts in question, the

jury necessarily did not apply the instruction in a way that

violated the constitution.

Boyde and McGuire are inapplicable. Those cases

articulate a standard that applies to “claims that allegedly

ambiguous instructions caused jury confusion.” Jones v.

United States, 527 US 373, 390, 119 S Ct 2090, 144 L Ed 2d

370 (1999). “In such cases, constitutional error exists only if

‘there is a reasonable likelihood’ that the jury so interpreted

the instruction.” Calderon v. Coleman, 525 US 141, 146, 119

S Ct 500, 142 L Ed 2d 521 (1998). McGuire suggests nothing

different, as a fuller quotation of the passage excerpted by

the state makes clear:

“In addition, in reviewing an ambiguous instruction such

as the one at issue here, we inquire ‘whether there is a rea-

sonable likelihood that the jury has applied the challenged

instruction in a way’ that violates the Constitution.”

502 US at 72 (quoting Boyde, 494 US at 380) (emphasis

added).

The state appears to read Boyde and McGuire to

hold that whether a jury instruction violates the constitution

depends on whether the instruction affected the jury’s ver-

dict, even where the jury would certainly have understood

the instruction in a manner that violated the constitution.

But “[t]he Boyde analysis does not inquire into the actual

effect of the error on the jury’s verdict[.]” Coleman, 525 US

Cite as 367 Or 292 (2020) 299

at 147. That is, when the claim is that “the jury was given

an ambiguous instruction that it might have interpreted”

in an impermissible manner, the question is whether “there

is a reasonable likelihood that the jury so interpreted the

instruction.” Id. at 146 (emphasis added; internal quotation

marks omitted). See United States v. Doyle, 130 F3d 523,

536 (2d Cir 1997) (“In other words, then, we do not engage

in an inquiry of harmless error review such as was enun-

ciated in Chapman v. California, 386 US 18, 23, 87 S Ct

824, 17 L Ed 2d 705 (1967), which looked at the case in its

entirety to analyze the effect of the error on the jury’s ver-

dict. Rather, we assess only the charge, taken as a whole, in

order to determine whether there is a reasonable likelihood

that the jury misinterpreted the reasonable doubt instruc-

tion.” (Emphases in original.)).

Boyde and McGuire thus articulate an inquiry

applicable only to ambiguous instructions. But the problem

with the instruction challenged in this case is not that it

was ambiguous. Rather, in light of Ramos, it was unambig-

uously wrong; it expressly told the jury that it could do what

the Sixth Amendment forbids. Boyde and McGuire thus do

not apply. And even if they did, they would have little to

add; because the instruction was unambiguously incorrect,

there is more than a reasonable likelihood “that the jury so

interpreted the instruction.” Coleman, 525 US at 146. We

conclude that the Sixth Amendment is violated when a trial

court tells the jury that it can convict a defendant of a seri-

ous offense without being unanimous. A unanimous verdict

may render that constitutional violation harmless, as we

explain in detail below, but it does not operate retroactively

to prevent the violation from having occurred.

III. STRUCTURAL ERROR

Having concluded that the Sixth Amendment was

violated when the jury was instructed that it could return a

nonunanimous guilty verdict, we turn to the central ques-

tion presented—whether that error requires reversal of

defendant’s unanimous convictions. Most federal constitu-

tional errors require reversal unless the error can be found

“harmless beyond a reasonable doubt.” Chapman, 386 US at

24. That is, the reviewing court must be satisfied that the

300 State v. Flores Ramos

error did not affect the outcome. We address harmless error

in section IV below. However, some federal constitutional

violations qualify as “structural” errors, which is to say that

the error is a “structural defect affecting the framework

within which the trial proceeds, rather than simply an error

in the trial process itself.” Arizona v. Fulminante, 499 US

279, 310, 111 S Ct 1246, 113 L Ed 2d 302 (1991). Structural

error is not susceptible to a harmlessness analysis; if a

structural error occurred, the conviction must be reversed.

Defendant argues that the instructional error that occurred

in this case was structural, requiring reversal of all his

convictions.

A. Structural Error Defined

In arguing that the instructional error was struc-

tural, defendant must satisfy a high standard. The Supreme

Court has “found an error to be ‘structural,’ and thus sub-

ject to automatic reversal, only in a ‘very limited class of

cases.’ ” Neder v. United States, 527 US 1, 8, 119 S Ct 1827,

144 L Ed 2d 35 (1999) (quoting Johnson v. United States, 520

US 461, 468, 117 S Ct 1544, 137 L Ed 2d 718 (1997)). And,

“[i]f the defendant had counsel and was tried by an impar-

tial adjudicator, there is a strong presumption that any other

errors that may have occurred are subject to harmless-error

analysis.” Rose v. Clark, 478 US 570, 579, 106 S Ct 3101, 92

L Ed 2d 460 (1986).

Consistent with that presumption, the Supreme

Court has held that a wide variety of trial errors are subject

to harmlessness analysis.3 The concept of structural error,

3

In Fulminante, 499 US at 306-07, the Supreme Court offered the following

partial list of errors subject to harmlessness analysis:

“unconstitutionally overbroad jury instructions at the sentencing stage of

a capital case”; “admission of evidence at the sentencing stage of a capital

case in violation of the Sixth Amendment Counsel Clause”; “jury instruc-

tion containing an erroneous conclusive presumption”; “jury instruction mis-

stating an element of the offense”; “jury instruction containing an errone-

ous rebuttable presumption”; “erroneous exclusion of defendant’s testimony

regarding the circumstances of his confession”; “restriction on a defendant’s

right to cross-examine a witness for bias in violation of the Sixth Amendment

Confrontation Clause”; “denial of a defendant’s right to be present at trial”;

“improper comment on defendant’s silence at trial, in violation of the Fifth

Amendment Self-Incrimination Clause”; “statute improperly forbidding trial

court’s giving a jury instruction on a lesser included offense in a capital

case in violation of the Due Process Clause”; “failure to instruct the jury

Cite as 367 Or 292 (2020) 301

by contrast, has been reserved for “basic protections” with-

out which “a criminal trial cannot reliably serve its function

as a vehicle for determination of guilt or innocence, and no

criminal punishment may be regarded as fundamentally

fair.” Clark, 478 US at 577-78 (citation omitted).

The error at issue here is instructional, and the

Supreme Court has held an instructional error to be struc-

tural only once. In Sullivan v. Louisiana, 508 US 275, 113

S Ct 2078, 124 L Ed 2d 182 (1993), the Court held that fail-

ure to properly instruct the jury on the “beyond a reason-

able doubt” standard was structural error. As the Court

explained in Neder, Sullivan’s holding rested on the fact

that an improper reasonable-doubt instruction “ ‘vitiates

all the jury’s findings’ and produces ‘consequences that are

necessarily unquantifiable and indeterminate.’ ” Neder, 527

US at 11 (quoting Sullivan, 508 US at 281-82) (emphasis in

Sullivan; internal citations omitted).

By contrast, the Supreme Court has several times

held significant instructional errors to be subject to a harm-

lessness analysis. In Neder the Court held that failure to

instruct the jury as to an element of an offense is not struc-

tural error. The Court emphasized that

“[the defendant] was tried before an impartial judge, under

the correct standard of proof and with the assistance of

counsel; a fairly selected, impartial jury was instructed

to consider all of the evidence and argument in respect to

[his] defense against the tax charges.”

527 US at 9. The Court has similarly held that unconsti-

tutional mandatory presumptions and misinstruction on a

single element of an offense are errors subject to harmless-

ness analysis. See Carella v. California, 491 US 263, 109 S Ct

2419, 105 L Ed 2d 218 (1989); Pope v. Illinois, 481 US 497,

107 S Ct 1918, 95 L Ed 2d 439 (1987); Clark, 478 US 570.

on the presumption of innocence”; “admission of identification evidence in

violation of the Sixth Amendment Confrontation Clause”; “admission of the

out-of-court statement of a nontestifying codefendant in violation of the

Sixth Amendment Confrontation Clause”; “confession obtained in violation of

Massiah v. United States, 377 US 201, 84 S Ct 1199, 12 L Ed 2d 246 (1964)”;

“admission of evidence obtained in violation of the Fourth Amendment”;

[and] “denial of counsel at a preliminary hearing in violation of the Sixth

Amendment Confrontation Clause.”

302 State v. Flores Ramos

In those cases, the Court has explained that, depending on

the strength of the evidence presented at trial, the “erro-

neous instruction” may be “simply superfluous.” Clark, 478

US at 581. Although removing an element from the jury’s

consideration entirely, or incorrectly permitting the ele-

ment to be decided based on a mandatory presumption,

are undoubtedly serious Sixth Amendment violations, the

Court has nonetheless been clear that such errors are not

structural.

The Supreme Court also has applied harmless error

analysis even where the error was necessarily one that

would have made an impression on the jury. In Fulminante,

the Court held that admission of a defendant’s coerced con-

fession, in violation of the Fifth Amendment, was subject to

review for harmlessness. The Court recognized that

“an involuntary confession may have a more dramatic effect

on the course of a trial than do other trial errors—in partic-

ular cases it may be devastating to a defendant—but this

simply means that a reviewing court will conclude in such

a case that its admission was not harmless error; it is not

a reason for eschewing the harmless-error test entirely.”

Fulminante, 499 US at 312.

Similarly, in Bruton v. United States, 391 US 123,

88 S Ct 1620, 20 L Ed 2d 476 (1968), the Supreme Court held

that a defendant’s Confrontation Clause rights were violated

by the admission against a nontestifying codefendant at a

joint trial of a confession by the codefendant that implicated

the defendant as well. Even though the jury was instructed

that it could not consider the confession as evidence against

the defendant, the Court explained that the jury could not

be presumed to have followed those instructions where

“the powerfully incriminating extrajudicial statements of a

codefendant, who stands accused side-by-side with the defen-

dant, are deliberately spread before the jury in a joint trial.”

391 US at 135-36. Nonetheless, even though the premise of

the Bruton line of cases is that certain evidence put before

the jury may be so powerful that the jury cannot ignore it

even if instructed to do so, the Court nevertheless has held

that Bruton error is subject to harmlessness analysis and

may be held harmless based on other evidence admitted at

Cite as 367 Or 292 (2020) 303

trial. Harrington v. California, 395 US 250, 254, 89 S Ct

1726, 23 L Ed 2d 284 (1969).

In sum, the Supreme Court has rejected the notion

of structural error in many circumstances that have involved

violations of indisputably fundamental constitutional pro-

tections afforded to criminal defendants. The Court’s most

recent substantial discussion of when an error is structural

came in Weaver v. Massachusetts, ___ US ___, 137 S Ct 1899,

198 L Ed 2d 420 (2017). In Weaver, the Court explained that

it had held errors to be structural for at least three rea-

sons. “First, an error has been deemed structural in some

instances if the right at issue is not designed to protect the

defendant from erroneous conviction but instead protects

some other interest.” Id. An example given in Weaver is a

defendant’s right to self-representation at trial: pro se rep-

resentation typically makes a conviction more likely, not

less, but wrongful denial of the right is a structural error

because of its interference with “the fundamental legal

principle that a defendant must be allowed to make his own

choices about the proper way to protect his own liberty.” Id.

“Second, an error has been deemed structural if the effects

of the error are simply too hard to measure.” Id. The princi-

pal example given in Weaver is a defendant’s right to select

his own retained counsel. Id. “Third, an error has been

deemed structural if the error always results in fundamen-

tal unfairness”—for example, a denial of appointed counsel

or the absence of a beyond-a-reasonable-doubt instruction.

Id.

Weaver does not hold that any of those condi-

tions is sufficient to make an error structural. Neither,

as Weaver acknowledges, does every example of struc-

tural error fall neatly into only one category. See id. (“In

a particular case, more than one of these rationales may

be part of the explanation for why an error is deemed

to be structural.”). Rather, the purpose of that catego-

rization, in Weaver itself, was simply to establish that

“[a]n error can count as structural even if the error does

not lead to fundamental unfairness in every case.” Id. Thus,

although Weaver sets out important factors to consider, it

304 State v. Flores Ramos

does not offer a clear rubric for evaluating whether an error

is structural.

In particular, we note that one of the bases for

holding an error structural mentioned in Weaver—that the

effects of the error are “simply too hard to measure,” ___ US

at ___, 137 S Ct at 1908—often will have only a modest role

to play in the analysis. Because the content of jury deliber-

ations will remain unknown to the reviewing court—which

can therefore never be certain about which path the jury took

to its decision or what evidence jurors thought important—

nearly all trial errors are capable of producing effects that

are difficult to measure. Yet the Supreme Court has else-

where recognized that many significant constitutional

errors, despite having effects that are difficult to measure,

are not structural. Referring to improper admissions of a

defendant’s confession and violations of the Confrontation

Clause, for example, the Court acknowledged that “[s]uch

errors, no less than the failure to instruct on an element in

violation of the right to a jury trial, infringe upon the jury’s

factfinding role and affect the jury’s deliberative process

in ways that are, strictly speaking, not readily calculable.”

Neder, 527 US at 18. Nevertheless, those errors are subject

to a harmlessness analysis. Id.

As another example, in Hedgpeth v. Pulido, 555 US

57, 58, 129 S Ct 530, 172 L Ed 2d 388 (2008), “the jury was

instructed on alternative theories of guilt and may have

relied on an invalid one” in convicting the defendant. Such

an error, almost by definition, precludes any certainty about

whether the error was harmless. Nevertheless, the Court

held that the error was not structural, reasoning that “[a]n

instructional error arising in the context of multiple theo-

ries of guilt no more vitiates all the jury’s findings than does

omission or misstatement of an element of the offense when

only one theory is submitted.” Id. at 61 (emphasis in original).

As Weaver notes, in the context of the denial of a

defendant’s right to select his or her own attorney, the

Supreme Court did rely on the immeasurability of the effects

of the error in concluding that the error was structural.

United States v. Gonzalez-Lopez, 548 US 140, 150, 126 S Ct

2557, 165 L Ed 2d 409 (2006). But Gonzalez-Lopez appears to

Cite as 367 Or 292 (2020) 305

be the only Supreme Court decision to deem an error struc-

tural based primarily on immeasurability, and the violation

in that case did not involve the ordinary measurement dif-

ficulties attendant to any evidentiary or instructional error.

Rather, as the Court explained, denial of a defendant’s coun-

sel of choice could affect “investigation and discovery, devel-

opment of the theory of defense, selection of the jury, presen-

tation of the witnesses, and style of witness examination and

jury argument,” as well as “whether and on what terms the

defendant cooperates with the prosecution, plea bargains, or

decides instead to go to trial.” Id. From the Supreme Court’s

treatment of the issue in those cases, we conclude that the

difficulty of measuring the effects of an error can support a

determination that an error is structural, but it will gener-

ally weigh heavily only where the error “pervades the entire

trial.” Id.

With those broad contours of structural error in

mind, we turn to the error at issue in this case. As we have

explained, the reason that the Sixth Amendment forbids the

jury instruction challenged here is because the jury instruc-

tion told the jury that it could do something that it consti-

tutionally could not: return a guilty verdict without being

unanimous. The state argues that, as a result, the instruc-

tion does not lead to fundamental unfairness in every case;

it does so, at most, only when the jury returns a nonunani-

mous verdict. And, given that the jury can be (and here was)

polled, the unfairness is easy to detect when it does occur.

The state concludes that, because the error does not make

every case fundamentally unfair and because the effect of

the error is measurable, it is not structural; rather, it is

instead subject to a harmlessness analysis.

Defendant, on the other hand, offers several accounts

of how the erroneous instruction leads to unfairness that is

neither readily detectable nor limited to situations in which

the jury returns a nonunanimous verdict. We examine each

of those arguments in turn.

B. Reasonable Doubt

Defendant’s first and most straightforward argu-

ment is that telling a jury that it may convict a defendant

306 State v. Flores Ramos

without being unanimous is tantamount to misinstructing

the jury about the reasonable-doubt standard. Were that so,

Sullivan, 508 US 275, would require us to conclude that the

error is structural.

In this case, the jury was instructed that it could

not convict defendant unless persuaded of his guilt beyond a

reasonable doubt:

“The defendant, Mr. Flores Ramos, is innocent unless

and until Mr. Flores Ramos is proven guilty beyond a rea-

sonable doubt. The burden is on the State and the State

alone to prove the guilt of the defendant beyond a reason-

able doubt.

“Reasonable doubt is a doubt based on common sense

and reason. Reasonable doubt is not an imaginary doubt.

Reasonable doubt means an honest uncertainty as to the

guilt of the defendant.

“You must return a verdict of not guilty if, after careful

and impartial consideration of all of the evidence in the

case, you are not convinced to a moral certainty that the

defendant is guilty.”

Defendant did not object to those instructions, and he does

not argue that they were wrong or that ordinarily they would

be insufficient. Rather, he argues that “the nonunanimous

jury instruction is structural error even in light of an other-

wise adequate reasonable-doubt instruction.” He makes two

arguments for that proposition.

First, defendant contends that “[a] nonunanimous-

verdict instruction incorrectly informs the jury about the

quantum of certitude necessary to find guilt beyond a rea-

sonable doubt—83%.” We disagree with that characteriza-

tion. An instruction that 10 votes out of 12 is sufficient to

convict no more instructs the jury that “beyond a reason-

able doubt” means “83% certainty” than a jury unanim-

ity instruction implies that a juror must be 100% certain

to convict. Defendant’s argument incorrectly conflates the

percentage of votes required for a verdict with the degree

of certainty that an individual juror must feel in order to

conclude that the defendant is guilty beyond a reasonable

doubt.

Cite as 367 Or 292 (2020) 307

The subtler version of defendant’s argument is that

the nonunanimous jury instruction improperly indicates to

a juror that that juror may find guilt beyond a reasonable

doubt despite the reasonable doubts of other jurors. As a

result, defendant contends, jurors would misunderstand the

nature of the “beyond a reasonable doubt” standard, which

defendant understands to require acquittal if any reason-

able juror could have a reasonable doubt. As defendant puts

it, “[T]he court has effectively told the jury that the reason-

able doubts of other jurors are irrelevant: the jury may find

guilt beyond a reasonable doubt even if individual jurors do

not agree.” The problem with defendant’s argument, as we

understand it, is that it relies on a conception of reasonable

doubt that the Supreme Court has expressly rejected.

“What the factfinder must determine to return a

verdict of guilty is prescribed by the Due Process Clause.”

Sullivan, 508 US at 277. Specifically, the Due Process

Clause requires proof of guilt beyond a reasonable doubt. In

re Winship, 397 US 358, 364, 90 S Ct 1068, 25 L Ed 2d 368

(1970). That is true regardless of whether the finder of fact

is a judge or a jury. As the Court explained in Sullivan:

“It would not satisfy the Sixth Amendment to have a jury

determine that the defendant is probably guilty, and then

leave it up to the judge to determine (as Winship requires)

whether he is guilty beyond a reasonable doubt. In other

words, the jury verdict required by the Sixth Amendment

is a jury verdict of guilty beyond a reasonable doubt.”

508 US at 278. As a result, both the Sixth Amendment and

the Due Process Clause include an identical requirement of

proof beyond a reasonable doubt.

In Apodaca v. Oregon, 406 US 404, 92 S Ct 1628,

32 L Ed 2d 184 (1972), overruled by Ramos, 140 S Ct 1390,

the Supreme Court upheld a nonunanimous conviction

against a challenge under the Sixth Amendment, as incor-

porated through the Due Process Clause of the Fourteenth

Amendment. In a companion case, Johnson v. Louisiana,

406 US 356, 92 S Ct 1620, 32 L Ed 2d 152 (1972), the Court

upheld nonunanimous convictions against an independent

Due Process Clause challenge. The limited scope of Johnson

had a somewhat technical reason behind it: the defendant

308 State v. Flores Ramos

in Johnson had been convicted in a state court before the

Court had issued its opinion in Duncan v. Louisiana, 391 US

145, 88 S Ct 1444, 20 L Ed 2d 491 (1968), which had incor-

porated the Sixth Amendment’s jury trial right to the states

through the Fourteenth Amendment. Under DeStefano v.

Woods, 392 US 631, 88 S Ct 2093, 20 L Ed 2d 1308 (1968),

overruled by Griffith, 479 US 314, the Sixth Amendment

was not applicable to the cases tried before Duncan, even if

those cases were still on direct appeal. Thus, Johnson did

not address the Sixth Amendment, which did not apply to

the defendant’s case; instead, it addressed only whether the

Due Process Clause or the Equal Protection Clause of the

Fourteenth Amendment required jury unanimity indepen-

dent of the Sixth Amendment.

One of the arguments advanced by the defendant

in Johnson was that the nonunanimous verdict interfered

with the Due Process Clause’s requirement of proof beyond

a reasonable doubt. The defendant’s contention in Johnson

is indistinguishable from the argument advanced by defen-

dant in this case. The Supreme Court rejected that argu-

ment, explaining:

“In our view disagreement of three jurors does not alone

establish reasonable doubt, particularly when such a

heavy majority of the jury, after having considered the dis-

senters’ views, remains convinced of guilt. That rational

[jurors] disagree is not in itself equivalent to a failure of

proof by the State, nor does it indicate infidelity to the

reasonable-doubt standard.”

Johnson, 406 US at 362. That is, Johnson held that proof

beyond a reasonable doubt does not require a conclusion that

no reasonable juror could (or did) have a reasonable doubt.

A juror who understands that he or she may believe a defen-

dant guilty beyond a reasonable doubt even though other

reasonable jurors may disagree properly understands the

concept. As Johnson explained, that conclusion is consistent

with numerous other applications of the reasonable-doubt

standard:

“Jury verdicts finding guilt beyond a reasonable doubt are

regularly sustained even though the evidence was such that

the jury would have been justified in having a reasonable

Cite as 367 Or 292 (2020) 309

doubt; even though the trial judge might not have reached

the same conclusion as the jury; and even though appel-

late judges are closely divided on the issue whether there

was sufficient evidence to support a conviction. That want

of jury unanimity is not to be equated with the existence

of a reasonable doubt emerges even more clearly from the

fact that when a jury in a federal court, which operates

under the unanimity rule and is instructed to acquit a

defendant if it has a reasonable doubt about his guilt, can-

not agree unanimously upon a verdict, the defendant is not

acquitted, but is merely given a new trial. If the doubt of a

minority of jurors indicates the existence of a reasonable

doubt, it would appear that a defendant should receive a

directed verdict of acquittal rather than a retrial. We con-

clude, therefore, that verdicts rendered by nine out of 12

jurors are not automatically invalidated by the disagree-

ment of the dissenting three. Appellant was not deprived of

due process of law.”

Johnson, 406 US at 362-63 (citations omitted). Of course,

Ramos holds that even a substantial majority of jurors, prop-

erly satisfied beyond a reasonable doubt that the defendant

is guilty, nevertheless cannot deliver a valid guilty verdict,

but that is a distinct question from whether those jurors

properly understand the concept of proof beyond a reason-

able doubt.

The Johnson reasonable-doubt holding remains

good law after Ramos. Ramos addressed only whether the

Sixth Amendment requires nonunanimous verdicts, a ques-

tion that was not at issue in Johnson. And the holding in

Ramos that the Sixth Amendment—because of the original

meaning of the term “jury” that appears in its text—requires

jury unanimity does not call into question the holding in

Johnson that the concept of reasonable doubt does not, in

and of itself, demand unanimity. In addition, the holding in

Johnson on this point also has been relied on in at least one

subsequent case, Tibbs v. Florida, 457 US 31, 42 n 17, 102

S Ct 2211, 72 L Ed 2d 652 (1982) (citing Johnson, 406 US at

362, for the proposition that “[o]ur decisions also make clear

that disagreements among jurors or judges do not them-

selves create a reasonable doubt of guilt”). We are bound

by the holding in Johnson on the relationship between rea-

sonable doubt and unanimity, and, therefore, we reject the

310 State v. Flores Ramos

argument that defendant advances about their relationship.

Moreover, even if we were not bound by it, the Court’s rea-

soning in Johnson on this point is persuasive.

C. Effect of Nonunanimous Jury Instruction

Next, defendant engages more directly with the

state’s central contention: that no fundamental unfairness

results when the jury returns a unanimous verdict, which

can be discerned through polling. Defendant resists that

conclusion in two related ways. First, he contends that the

jury instruction that unanimity was not required prevented

jurors from appreciating the significance of their individual

decisions and that, as a result, jurors may have voted to con-

vict without being convinced of defendant’s guilt. Second, he

argues that the nonunanimous jury instruction affected the

manner of deliberations. We consider each of those issues in

turn.

1. Reduced responsibility

Defendant takes the position that, because jurors

were told that the votes of only 10 of them were sufficient

for a conviction, if there were one or two remaining hold-

out jurors on any of the counts, those jurors may have felt

a diminished sense of responsibility, knowing that their

votes were not essential to the verdict. A sense of futility

having been instilled, those jurors may have voted to con-

vict defendant, perhaps simply to appease the majority or

because of social pressure, even though they in fact retained

reasonable doubts about his guilt. Had those jurors known

what they should have been told—that even a single vote

to acquit was enough to prevent a conviction—they might

have refused to convict. Thus, defendant contends, his trial

was fundamentally unfair, regardless of whether the jury

reached a unanimous verdict. Even unanimous verdicts are

tainted by the instruction.

We disagree with defendant’s central contention,

which is that the jury instruction permitting nonunanimous

verdicts necessarily left holdout jurors with a diminished

sense of responsibility for their votes, such that the trial was

rendered fundamentally unfair. Even assuming that the

erroneous instruction by itself may have a tendency to lower

Cite as 367 Or 292 (2020) 311

the perceived stakes of the decision for some jurors, the jury

received other instructions that made clear that, outvoted

or no, jurors could not find the defendant guilty unless they

were convinced of his guilt beyond a reasonable doubt.

The trial court began its instructions to the jury

with the following:

“Members of the jury, it is your sole responsibility to

make all of the decisions about the facts in this case. You

must evaluate the evidence to determine how reliable or

how believable that evidence is. When you make your deci-

sion about the facts, you must then apply the legal rules to

those facts and reach your verdict.

“Remember that your power to reach a verdict is not

arbitrary. When I tell you what the law is on a particular

subject or tell you how to evaluate certain evidence, you

must follow these instructions.”

Jurors were also instructed that

“[i]t is your duty to weigh the evidence calmly and dispas-

sionately and to decide this case on its merits. Do not allow

bias, sympathy, or prejudice any place in your delibera-

tions. Do not decide this case based on guesswork, conjec-

ture, or speculation. Do not consider what sentence might

be imposed by the Court if the defendant is found guilty.”

And, after being instructed on reasonable doubt, jurors were

told:

“You must return a verdict of not guilty if, after careful

and impartial consideration of all of the evidence in the

case, you are not convinced to a moral certainty that the

defendant is guilty.”

The state argues that those instructions were sufficient

to inform jurors that they could cast a guilty vote only if

they concluded, based on the evidence, that defendant was

guilty beyond a reasonable doubt, and so also would have

told jurors that they could not vote to convict simply because

they found themselves outnumbered.

Defendant counters that all those instructions are

ambiguous: “[T]he second-person use of the word ‘you’ in the

reasonable doubt instruction reasonably refers to ‘you,’ the

entire jury.” (Emphasis in original.) He asserts that jurors

312 State v. Flores Ramos

were not told that they could not individually vote to con-

vict unless they were convinced beyond a reasonable doubt

of defendant’s guilt.

Even assuming a certain level of ambiguity in those

instructions, however, those instructions were given along-

side an instruction that clearly emphasized jurors’ obliga-

tion to make individual decisions. Jurors were instructed

to “keep in mind that each party is entitled to the consid-

ered decision of each juror.” And, before any of those other

instructions, each juror swore or affirmed, as required by

ORCP 57 E, “that they and each of them will well and truly

try the matter in issue between the plaintiff and defendant,

and a true verdict give according to the law and evidence as

given them on the trial.” 4 (Emphasis added.)

Taking the instructions as a whole, we do not think

that jurors would have been left with any doubt that they

were required to make an individual decision based on the

evidence. For example, we see no basis for thinking that

a juror, upon being told, “Do not decide this case based on

guesswork, conjecture, or speculation,” would assume that

the instruction applied only to the jury as a whole, but not to

its members individually, and so would feel free to make his

or her own decision based on a guess. Similarly, reasonable

jurors, having been reminded that “each party is entitled

to the considered decision of each juror,” would not inter-

pret the instruction that “[y]ou must return a verdict of not

guilty if * * * you are not convinced to a moral certainty that

the defendant is guilty” to permit individual votes to be cast

on some other standard.

We therefore perceive no realistic possibility that

jurors would understand their oath and the instructions

as permitting them to cast a vote to convict defendant

while still retaining a reasonable doubt about his guilt.

With that conclusion in mind, defendant’s argument can

succeed only if we assume that jurors may have disobeyed

those other instructions. That is, defendant’s argument that

the nonunanimous jury instruction leads to fundamental

4

The transcript reflects that the oath was administered, but it does not

record the precise wording. Defendant makes no argument that the oath in this

case was in any way defective.

Cite as 367 Or 292 (2020) 313

unfairness, by creating the risk that a juror who would be

inclined to acquit will “give up” too easily, requires us to

assume that that juror will disregard the other instructions

addressed to his or her individual responsibility.

In evaluating whether an error requires reversal,

the Supreme Court has repeatedly emphasized the pre-

sumption that “ ‘jurors, conscious of the gravity of their task,

attend closely the particular language of the trial court’s

instructions in a criminal case and strive to understand,

make sense of, and follow the instructions given them.’ ”

United States v. Olano, 507 US 725, 740, 113 S Ct 1770, 123

L Ed 2d 508 (1993) (quoting Francis v. Franklin, 471 US 307,

324 n 9, 105 S Ct 1965, 85 L Ed 2d 344 (1985)). In evaluat-

ing whether the instructional error that did occur here is

such as to require reversal in every case, we must, like the

Supreme Court, give great weight to “the almost invariable

assumption of the law that jurors follow their instructions.”

Richardson v. Marsh, 481 US 200, 206, 107 S Ct 1702, 95

L Ed 2d 176 (1987). In only a few circumstances has the

Supreme Court found an exception to that rule. In Bruton,

for example, as noted above, the Supreme Court held that

it was unrealistic to expect jurors to obey an instruction to

ignore a confession by a codefendant directly implicating the

defendant when considering the question of the defendant’s

guilt.

But this is not a case of that type. Here, jurors not

convinced of guilt beyond a reasonable doubt were simply

required to report a vote of “not guilty,” even if they were

outvoted. Jurors were not asked to perform the equivalent

of “the mental gymnastics of considering an incriminat-

ing statement against only one of two defendants in a joint

trial.” Frazier v. Cupp, 394 US 731, 735, 89 S Ct 1420, 22

L Ed 2d 684 (1969). There was no contradiction in the

instructions, nor is there any reason to think that holdout

jurors would face pressure to change their votes after the

jury had already reached a verdict. Simply put, all 12 jurors,

when polled, individually stated that they had found the

defendant guilty beyond a reasonable doubt of the counts

in dispute. We would have to speculate not to take them at

their word.

314 State v. Flores Ramos

Our rejection of defendant’s argument is consis-

tent with, and likely compelled by, Supreme Court prece-

dent. In Romano v. Oklahoma, 512 US 1, 114 S Ct 2004, 129

L Ed 2d 1 (1994), the defendant was sentenced to death by

a jury that had been told that the defendant already had

received a death sentence for a separate crime. The defen-

dant argued that the imposition of a death sentence by a

jury that had received that information violated the Due

Process Clause because knowledge of the extant sentence

would have diminished jurors’ sense of responsibility for

their own sentencing decision. Id. at 6. The Supreme Court

rejected that argument for two reasons. First, the Court

held that, “if the jurors followed the trial court’s instruc-

tions, which we presume they did, this evidence should have

had little—if any—effect on their deliberations.” 512 US at

13 (citation omitted). Second, the Court explained:

“Even assuming that the jury disregarded the trial

court’s instructions and allowed the evidence of petitioner’s

prior death sentence to influence its decision, it is impossible

to know how this evidence might have affected the jury. It

seems equally plausible that the evidence could have made

the jurors more inclined to impose a death sentence, or it

could have made them less inclined to do so. Either conclu-

sion necessarily rests upon one’s intuition. To hold on the

basis of this record that the admission of evidence relating

to petitioner’s sentence in the [earlier murder prosecution]

rendered petitioner’s sentencing proceeding for the [second

murder case] fundamentally unfair would thus be an exer-

cise in speculation, rather than reasoned judgment.”

Id. at 13-14. To conclude that the erroneous instruction in

this case will always cause a diminished sense of respon-

sibility in individual jurors, so as to render all trials fun-

damentally unfair, would strain against the Court’s Due

Process Clause analysis in Romano.

2. Effect on deliberation

That does not dispose of defendant’s alternative

structural error contention, which is that the instruction

that jurors could convict without being unanimous affected

the process of jury deliberation. Defendant argues that, as a

result of the instructional error, jurors in effect were not told

“to engage in a unanimous-consensus deliberative model.”

Cite as 367 Or 292 (2020) 315

As defendant puts it, permitting jurors to return nonunani-

mous verdicts “shifts the burden of persuading other jurors

from majority jurors to minority jurors.”

That is an unconvincing account of how an instruc-

tion that unanimity was required for guilty verdicts could

have made a difference for counts where the jury did vote

unanimously to convict. Whatever the number of votes nec-

essary to reach a verdict, jurors in the minority will seek to

persuade jurors in the majority, and jurors in the majority

will seek to persuade jurors in the minority. The potential

difference, when the verdict need not be unanimous, is that

jurors in the majority need not persuade everybody to reach

a verdict. But, while that might provide an account of why

the instruction is unfair when the jury returns a nonunan-

imous guilty verdict, it fails to explain why the instruc-

tion makes the trial fundamentally unfair even if the jury

returned a unanimous verdict. When the verdict is unani-

mous, either the jurors in the majority did successfully per-

suade any holdouts in favor of acquittal—that is, what defen-

dant contends should have happened in fact did happen—or

all jurors were persuaded of the defendant’s guilt before any

discussion occurred. We see no fundamental unfairness so

as to universally require reversal of unanimous verdicts.

Amicus curiae the Criminal Justice Reform Clinic

at Lewis & Clark Law School presents a more concrete

argument about how the nonunanimous verdict instruction

may have affected jury deliberations. Relying on social sci-

ence research, the Clinic argues that juries told that they

can reach a nonunanimous verdict are more likely to follow

a deliberative process that is “verdict-driven rather than

evidence-driven,” meaning that the jury votes sooner and

more often, reaches a verdict more quickly, and spends com-

paratively less time discussing evidence.

Below, we examine in more depth the question of

how those asserted differences affect the harmless error

analysis. At this point, though, the question is whether

the error is structural, and we conclude that—even on the

assumption that such differences do exist—the Clinic’s

brief does not provide an account of why the erroneous jury

instruction given in this case “cast[s] so much doubt on the

316 State v. Flores Ramos

fairness of the trial process that, as a matter of law, [the

error] can never be considered harmless.” Satterwhite v.

Texas, 486 US 249, 256, 108 S Ct 1792, 100 L Ed 2d 284

(1988).

As an initial matter, we note that the Supreme

Court’s decision in Ramos did not require that jurors fol-

low any particular deliberative model, nor is that an obvious

implication of its holding. Neither defendant nor the Clinic

develops an argument that the Sixth Amendment—or any

other provision of the United States Constitution—requires

that jurors deliberate in a particular manner. To the con-

trary, most courts to consider the question have rejected the

argument that the Sixth Amendment requires a particular

quality or quantity of deliberation before a conviction can

be held valid. As one court put it, “It seems self-explanatory

that ‘[n]o rule requires a jury to deliberate for any set length

of time.’ ” United States v. Dolan, 120 F3d 856, 870 (8th Cir

1997) (quoting United States v. Penagaricano-Soler, 911 F2d

833, 846 n 15 (1st Cir 1990)). Challenges to verdicts based

on the length of jury deliberations have been consistently

rejected, even when the jury was out “only five to seven min-

utes” before returning a verdict. United States v. Brotherton,

427 F2d 1286, 1289 (8th Cir 1970); see also Wall v. United

States, 384 F2d 758, 762 (10th Cir 1967) (upholding verdict

where jury deliberated for one hour following an eight-day

trial); Kimes v. United States, 242 F2d 99, 101 (5th Cir),

cert den, 354 US 912, 77 S Ct 1299, 1 L Ed 2d 1429 (1957)

(“we find nothing suspicious, questionable, or remarkable

in the action of the jury in returning its verdict of guilty

after deliberating only twenty minutes”); United States v.

Anderson, 561 F2d 1301, 1303 (9th Cir 1977) (upholding

verdict returned after “brief deliberation”); United States v.

Burfoot, 899 F3d 326, 342 (4th Cir 2018) (upholding convic-

tions where the jury deliberated for five hours after a five-

week trial). Similarly, there are no cases purporting to reg-

ulate the frequency with which juries should vote on their

way to reaching a verdict or the extent to which the evidence

must be discussed.

Finally, the Clinic does not argue that there is a one-

to-one correlation between “verdict-driven” deliberations

and instructions that jurors do not need to be unanimous

Cite as 367 Or 292 (2020) 317

to convict. The Clinic’s claim, as we understand it, is that a

jury instruction permitting nonunanimous verdicts makes

“verdict-driven” deliberations more likely, not that “verdict-

driven” deliberations occur only when juries are misin-

structed on unanimity. At bottom, then, we are left with

an argument that the instruction may have made the jury

less likely to employ one constitutionally permissible style

of deliberation and more likely to use a different, also con-

stitutionally permissible, style of deliberation. That falls far

short of the type of error after which “no criminal punish-

ment may be regarded as fundamentally fair,” Clark, 478 US

at 577-78, so as to amount to structural error.

D. Erosion of Public Confidence

Finally, defendant argues that a nonunanimous jury

instruction constitutes structural error because it “erodes

public confidence in the jury-trial right.” However, the

Supreme Court has emphasized that “the harmless-error

doctrine is essential to preserve the ‘principle that the

central purpose of a criminal trial is to decide the factual

question of the defendant’s guilt or innocence, and promotes

public respect for the criminal process by focusing on the

underlying fairness of the trial rather than on the virtually

inevitable presence of immaterial error.’ ” Fulminante, 499

US at 308 (quoting Delaware v. Van Arsdall, 475 US 673,

681, 106 S Ct 143, 189 L Ed 2d 674 (1986)). Thus, although

constitutional error may tend to undermine public confi-

dence, unwarranted reversals of criminal convictions also

undermine the reliability of the adjudicative process, along

with the public perception of it.

Defendant draws an analogy to two other cases

in which the Supreme Court has found structural error:

Batson v. Kentucky, 476 US 79, 106 S Ct 1712, 90 L Ed 2d

69 (1986), and Vasquez v. Hillery, 474 US 254, 106 S Ct 617,

88 L Ed 2d 598 (1986). In Batson, the Supreme Court held

that it violated the Equal Protection Clause for a prosecu-

tor to exercise a peremptory strike against a juror on the

basis of race. In Hillery, the Court reaffirmed that the Equal

Protection Clause forbids the indictment of a defendant by a

grand jury from which members of the defendant’s race have

been excluded. In both cases, the error was held structural.

318 State v. Flores Ramos

In Hillery, the Court explained that, “[w]hen constitutional

error calls into question the objectivity of those charged

with bringing a defendant to judgment, a reviewing court

can neither indulge a presumption of regularity nor evalu-

ate the resulting harm.” 474 US at 263. In Batson, the Court

held that race-based exclusion of jurors “undermine[s] pub-

lic confidence in the fairness of our system of justice.” 476

US at 87.

Defendant argues that the same is true here. He

points out that, in Ramos, the Supreme Court observed that

the initial adoption of nonunanimous juries in Oregon had

been motivated by racism:

“Adopted in the 1930s, Oregon’s rule permitting

nonunanimous verdicts can be similarly traced to the rise

of the Ku Klux Klan and efforts to dilute ‘the influence of

racial, ethnic, and religious minorities on Oregon juries.’ ”

Ramos, 590 US at ___, 140 S Ct at 1394 (quoting State v.

Williams, No. 15-CR-58698). Defendant contends that,

because Oregon’s nonunanimous jury system was adopted

in part for racist reasons, it should be held to undermine

confidence in the criminal justice system just as in Batson.

Several amici join defendant on this point, arguing that

reversal of defendant’s convictions, and all others obtained

under a system that permitted nonunanimous convictions,

is necessary to restore the legitimacy of the criminal justice

system.

But there is little analogy between the constitu-

tional violations that occurred in Batson and Hillery and the

violation in this case. In this case, no juror was excluded on

the basis of race. All jurors, regardless of race, unanimously

found defendant guilty of the four counts in dispute. If the

jury were permitted to convict a defendant without being

unanimous, there undoubtedly would be some cases where

the jury’s vote breaks down along racial or ethnic lines. But

that does not explain why public confidence in unanimous

verdicts—where that potential verifiably was not realized—

should be undermined.

Defendant’s analogy to decisions under the Equal

Protection Clause fails for another reason as well. The Sixth

Cite as 367 Or 292 (2020) 319

Amendment violation that occurred here—instructing the

jury that it did not need to be unanimous to convict—does

not depend on why Oregon first began using nonunani-

mous juries. The right to a unanimous verdict derives from

the text and history of the Sixth Amendment and, as the

Supreme Court explained in Ramos, “a jurisdiction adopting

a nonunanimous jury rule even for benign reasons would

still violate the Sixth Amendment.” 590 US at ___ n 44,

140 S Ct at 1401 n 44. We cannot conclude that the error is

structural—that it always requires reversal, regardless of

the circumstances under which it is given and the effect

that it is likely to have—based on a historical circumstance

that has no inherent link to the constitutional violation at

issue. See Neder, 527 US at 14 (“Under our cases, a constitu-

tional error is either structural or it is not.”).

In all, defendant’s emphasis on the importance of

unanimity to public confidence in the jury’s verdict only

cements our view that the instructional error that occurred

here was not the type of constitutional violation after which

“a criminal trial cannot reliably serve its function as a vehi-

cle for determination of guilt or innocence, and no criminal

punishment may be regarded as fundamentally fair.” Clark,

478 US at 577-78 (citation omitted). The jury was not told

that it needed to be unanimous, but—as to the four counts

in dispute here—it did reach unanimous verdicts. Those ver-

dicts represent the consensus of “a jury selected from a rep-

resentative cross section of the entire community.” Ramos,

590 US at ___ n 47, 140 S Ct at 1402 n 47. Defendant’s trial

before that “impartial adjudicator,” combined with his rep-

resentation by counsel, gives rise to “a strong presumption

that any other errors that may have occurred are subject to

harmless-error analysis.” Clark, 478 US at 579. For the rea-

sons we have articulated above, defendant has not overcome

that presumption.5

5

Our conclusion on this point is consistent with the Supreme Court’s deci-

sion in Burch v. Louisiana, 441 US 130, 132 n 4, 99 S Ct 1623, 60 L Ed 2d 96

(1979), which affirmed the conviction of a defendant convicted unanimously by a

six-person jury instructed that it could convict by a vote of five to one. The Court’s

reasoning in Burch is somewhat obscure, and it is not clear whether the questions

that we consider here were squarely presented in that case, so we have made our

decision in this case without relying on Burch.

320 State v. Flores Ramos

IV. HARMLESS ERROR

When a federal constitutional error is not struc-

tural, the conviction can be affirmed only if the error “was

harmless beyond a reasonable doubt.” Fulminante, 499 US

at 307-08. An error is harmless beyond a reasonable doubt if

the reviewing court is satisfied “beyond a reasonable doubt

that the error complained of did not contribute to the verdict

obtained.” Chapman, 386 US at 24.

The state argues that a “nonunanimous verdict”

instructional error is harmless whenever the jury, in fact,

reached a unanimous verdict. Thus, the state argues, all

that is needed to establish harmlessness is the jury poll

showing unanimity. Defendant pushes back against that

argument in several ways, contending that this court can-

not find the error harmless as to any count in this case. We

consider each of defendant’s arguments and, for the reasons

that follow, reject them.

A. Neder

First, defendant argues that the state’s position is

inconsistent with the Supreme Court’s decision in Neder.

Relying on Neder, defendant argues that, whatever the poll

shows, his convictions can be affirmed only if the record con-

tains “uncontested and overwhelming evidence of guilt on

every element.” (Emphasis in original.) In Neder, the trial

court erred by failing to submit one of the elements of the

offense to the jury at all, instead making its own decision

that the state had satisfied that element beyond a reasonable

doubt. The Court held that the conviction could nevertheless

be affirmed if the error was harmless beyond a reasonable

doubt, summarizing the applicable inquiry in the follow-

ing manner: “Is it clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty absent

the error?” Neder, 527 US at 18. Applying that standard in

Neder, the Court framed the question as being “whether the

record contains evidence that could rationally lead to a con-

trary finding with respect to the omitted element.” Id. at 19.

The Court concluded, in that case, that there was no such

evidence. Id. at 19-20.

Defendant argues that this court must conduct the

same inquiry here, with respect to each element of every

Cite as 367 Or 292 (2020) 321

charged offense. But that argument ignores the difference

between the error in Neder and the error in this case. Under

the Chapman standard, the overall question is whether the

court can “conclude beyond a reasonable doubt that the jury

verdict would have been the same absent the error.” Neder,

527 US at 19. In Neder, the error lay in failing to submit

an element to the jury at all, with the result that the jury

never had an opportunity to decide it. That error could be

held harmless only if the Court could be confident that the

jury would have convicted the defendant even if it had con-

sidered the additional element. And the Court could have

that confidence only if the “omitted element is supported by

uncontroverted evidence.” Id. at 18.

In this case, by contrast, every element of each of

the four disputed counts was submitted to the jury, and the

poll shows that the jury unanimously had concluded that the

state had proved every element beyond a reasonable doubt.

The question is not whether a reasonable jury necessarily

would reach the same conclusion; unlike the Court in Neder,

we know that this jury in fact did so. The question in this

case is whether we can be confident, beyond a reasonable

doubt, that the jury would have reached the same conclusion

had it been properly instructed as to unanimity—a conclu-

sion that does not require overwhelming evidence on every

element, if we can be satisfied that the poll was accurate

and that the instruction did not have a significant impact on

jury deliberations.6

B. Zolotoff

Next, defendant argues that the state’s position is

inconsistent with this court’s decision in State v. Zolotoff,

354 Or 711, 320 P3d 561 (2014). Defendant argues that,

under Zolotoff, an error in an instruction that otherwise

would have provided “the jury with a legal distinction to

apply during its deliberations” can be found harmless only

6

For the same reason, this case does not involve “first-guessing” a jury’s

decision, which defendant argues is not permitted by the Oregon Constitution.

The jury reached unanimous decisions on the disputed counts. The question is

whether those decisions, which the jury did make, must be reversed because

of the instructional error. We therefore reject defendant’s state constitutional

argument.

322 State v. Flores Ramos

if another instruction conveyed the same legal distinction

to the jury. Defendant argues that “a proper unanimity

instruction would have given the jury a significant legal dis-

tinction to consider when deliberating and assessing guilt,”

although, perhaps because he reads Zolotoff as establishing

a per se rule, he does not articulate a specific theory of how

the instruction could have affected the jury’s deliberations.

We disagree with defendant’s reading of Zolotoff.

In Zolotoff, the defendant was convicted of pos-

session of a weapon by an inmate. 354 Or at 713. He had

requested, but been denied, an instruction on the lesser-

included offense of attempted possession of a weapon by

an inmate. Id. The state conceded that the failure to so

instruct the jury had been error, but argued that the error

was necessarily harmless because, even if the jury had been

instructed on the lesser-included offense, it would also have

been instructed, pursuant to ORS 136.460(2), that it could

consider the lesser-included offense only after reaching a

not guilty verdict on the greater-inclusive offense. 354 Or at

715-16. Thus, the state’s reasoning ran, the jury never would

have had cause to consider the attempt charge, even had it

been so instructed, so the error could not have affected the

verdict.

We rejected that categorical argument. We first rec-

ognized that, as the state had argued, “there may be many

instances in which an appellate court will be able to con-

clude from the evidence, the arguments, and the instruc-

tions that the jury would have reached the same verdict on

the charged offense even if it also had received instruction

on the lesser-included offense.” Zolotoff, 354 Or at 718-19.

But we held that “an error in failing to instruct on a lesser-

included offense will not always be harmless” because

“[t]here may be circumstances in which the elements of the

charged crime are clearer when they are viewed in contrast

with the elements of a lesser-included offense.” Id. at 719.

Applying that reasoning to the case at hand, we explained,

“That erroneously omitted instruction would have told the

jurors that there was a legal distinction between taking a

substantial step toward making the spoon into a weapon

and completing the task. In other words, the definition of

Cite as 367 Or 292 (2020) 323

the term ‘weapon’ told the jury what a weapon is, but it did

not tell the jury that the spoon was not a weapon if it was

an object that defendant was still in the process of making

into a weapon. In this case, an instruction on the elements

of the lesser-included offense of attempted possession of a

weapon by an inmate would have been particularly help-

ful because, as the state concedes, there was evidence from

which the jury could have found that the spoon was not a

weapon and therefore that defendant did not actually pos-

sess a weapon; he only attempted to make the spoon into a

weapon and possess it.”

Id. at 720.

Zolotoff did not, therefore, embrace a categorical

rule that the omission of any instruction that might help

the jury understand a legal distinction cannot be harmless.

Rather, Zolotoff rejected the categorical rule proposed by

the state in favor of a different approach, recognizing that

an instruction on a lesser-included offense may help the

jury better understand the elements of the greater-inclusive

offense, and the absence of such an instruction may there-

fore have affected the verdict. But, as Zolotoff acknowledged,

both of those conclusions turn on what the instruction would

have helped the jury understand and the importance of the

distinction to the case at hand.

Here, even leaving aside the fact that Zolotoff did

not involve an application of the federal harmlessness stan-

dard, Zolotoff is not especially pertinent. Defendant faults

the instruction here for failing to inform the jury about the

importance of unanimity and that that jury could return a

guilty verdict only if it were unanimous. Obviously, the fail-

ure to impress upon the jurors that guilty verdicts needed

to be unanimous was significant as to the single nonunan-

imous guilty verdict returned by the jury. But, insofar

as the jury did return unanimous guilty verdicts on the

other counts, defendant does not persuasively explain how

instructing the jury on the necessity of a unanimous verdict

would have affected the unanimous verdicts that they did

return. As discussed above, jurors were given ample instruc-

tion on their duty with respect to their individual determi-

nations of the defendant’s guilt, and they are presumed to

have followed those instructions. “Judicious application of

324 State v. Flores Ramos

the harmless-error rule does not require that we indulge

assumptions of irrational jury behavior when a perfectly

rational explanation for the jury’s verdict, completely con-

sistent with the judge’s instructions, stares us in the face.”

Schneble v. Florida, 405 US 427, 431-32, 92 S Ct 1056, 31

L Ed 2d 340 (1972).

C. The Jury Poll

Defendant also challenges the sufficiency of the poll

of the jury. Insofar as defendant’s argument is that the poll,

in and of itself, does not establish that the instruction had

no effect on the jury’s deliberations, we agree. But, to the

extent that defendant contends that the poll was insuffi-

cient to establish whether the jury in fact was unanimous,

we disagree.

Defendant suggests several ways in which a poll

may fail to capture how jurors, in fact, voted: the jury may

not have understood the use of words like “unanimous,”

jurors had no legally significant reason to “record a unan-

imous verdict,” and jurors may simply raise their hands

when put on the spot by a poll. But most of those concerns do

not apply to this case. Here, the trial court, count-by-count,

asked all jurors who voted “guilty” to raise their hands. No

juror could have misunderstood that simple instruction; the

poll itself gave jurors a reason—and a duty—to record their

votes; and defendant suggests no basis for thinking that any

juror would have given a false answer. More broadly, we are

skeptical that jurors would not understand the word “unan-

imous” or that jurors, however polled, would not respond

honestly. See United States v. Poole, 545 F3d 916, 921 (10th

Cir 2008) (rejecting an argument that jurors would not have

understood the trial court’s use of the word “nullity”).

D. Effect on Deliberations

With those arguments addressed, we turn to the

argument made by the Clinic as amicus: that the instruc-

tion permitting nonunanimous guilty verdicts may have

affected deliberations, and so cannot be held to be harmless.

Although we considered the Clinic’s arguments above in the

context of whether the instructional error was structural,

there we dealt only with the question whether any potential

Cite as 367 Or 292 (2020) 325

difference in deliberation resulting from the instruction

would make the trial fundamentally unfair. In the harmless

error context, the question before us is whether any differ-

ence in the style of deliberation could have made a difference

to the result in this case. On that question, the fact that no

particular deliberative style is constitutionally required is

not dispositive.

We are not able to approach this question entirely

as a matter of first impression. In Johnson, when consid-

ering the argument that a nonunanimous verdict violated

the Due Process Clause, the Supreme Court considered and

rejected the defendant’s contention that a lack of unanimity

indicated that the jurors voting to convict could not have

conscientiously voted to convict. The Court gave the follow-

ing reasons for its rejection of the argument:

“Appellant, in effect, asks us to assume that, when minority

jurors express sincere doubts about guilt, their fellow jurors

will nevertheless ignore them and vote to convict even if

deliberation has not been exhausted and minority jurors

have grounds for acquittal which, if pursued, might per-

suade members of the majority to acquit. But the mere fact

that three jurors voted to acquit does not in itself demon-

strate that, had the nine jurors of the majority attended

further to reason and the evidence, all or one of them would

have developed a reasonable doubt about guilt. We have no

grounds for believing that majority jurors, aware of their

responsibility and power over the liberty of the defendant,

would simply refuse to listen to arguments presented to

them in favor of acquittal, terminate discussion, and render

a verdict. On the contrary it is far more likely that a juror

presenting reasoned argument in favor of acquittal would

either have his arguments answered or would carry enough

other jurors with him to prevent conviction. A majority will

cease discussion and outvote a minority only after reasoned

discussion has ceased to have persuasive effect or to serve

any other purpose—when a minority, that is, continues to

insist upon acquittal without having persuasive reasons in

support of its position. At that juncture there is no basis for

denigrating the vote of so large a majority of the jury or for

refusing to accept their decision as being, at least in their

minds, beyond a reasonable doubt. * * * Appellant offers no

evidence that majority jurors simply ignore the reasonable

doubts of their colleagues or otherwise act irresponsibly

326 State v. Flores Ramos

in casting their votes in favor of conviction, and before we

alter our own longstanding perceptions about jury behav-

ior and overturn a considered legislative judgment that

unanimity is not essential to reasoned jury verdicts, we

must have some basis for doing so other than unsupported

assumptions.”

Johnson, 406 US at 361-62 (emphasis added).

In Johnson, the Supreme Court appeared to assume

that, even when the jury was in fact not unanimous, it still

would have deliberated with the same care and to the same

extent as if unanimity were required. A fortiori, the same

presumption would appear to extend to juries that, while

instructed that they could return a nonunanimous guilty

verdict, nevertheless did reach unanimity. As noted above,

Ramos did not address the Due Process Clause arguments

considered in Johnson, and it did not overrule the major-

ity opinion in Johnson. The reasoning of Ramos, based on

text and history, does not call into question the reason-

ing of Johnson. And, though Johnson concerned whether a

nonunanimous verdict violated the Due Process Clause, and

the question here concerns the harmlessness of an error that

did occur, the factual assumption in Johnson is relevant to

both. Johnson therefore still binds us.

Nevertheless, we read Johnson to establish only

a rebuttable presumption; Johnson faulted the defen-

dant for failing to rebut it, but it did not hold that noth-

ing could. In this case, the Clinic argues that social science

research, post-dating Johnson, demonstrates that instruc-

tions that jurors need not be unanimous do affect deliber-

ations. Principally, the clinic relies on a study documented

in Reid Hastie et al, Inside the Jury (1983).7 In the Hastie

study, 69 mock juries, drawn from actual jury pools, were

asked to render a verdict after watching a taped reenact-

ment of a real trial. Id. at 45-55, 60. A third of the mock

juries needed to be unanimous to reach any verdict, another

third could reach any verdict by a 10-to-two vote, and the

final third could reach any verdict by an eight-to-four vote.

Id. at 60. In analyzing the results, the researchers looked at

7

The brief cites multiple other sources; however, many of those sources refer

back to the Hastie study on the pertinent point.

Cite as 367 Or 292 (2020) 327

when the jury first took an internal vote. Juries that polled

themselves within 10 minutes were labeled “verdict-driven.”

Id. at 164. When the first ballot took place after at least

40 minutes of deliberation, the jury was labeled “evidence-

driven.” Id. “Evidence-driven” juries ended up deliberating

for longer than “verdict-driven” juries and the deliberations

involved more connections between facts and legal issues.

Id. Based on the Hastie study, the Clinic argues that an

instruction that jurors do not need to be unanimous “leads

to the likelihood that deliberations are verdict-driven rather

than evidence-driven,” thus producing less reliable (and, as

pertinent here, different) results.

Even assuming the validity of the Hastie study, and

that it would be appropriate to accord dispositive weight to

a single study, there are three reasons why it does not lend

much support to a conclusion that deliberations in this case

were affected by the erroneous jury instruction. First, the

study found only a weak correlation between unanimity

requirements and whether a jury was “evidence-driven,”

and it is not clear whether the result was statistically signif-

icant. See id. at 173 (“majority rule juries are slightly like-

lier to adopt a verdict-driven deliberation style in contrast to

the evidence-driven style”).

Second, the Clinic’s theory of how the erroneous

jury instruction was not harmless is not—and cannot be—

just that the instruction may have affected deliberations.

Rather, it is that the potentially altered deliberations could

in turn have affected the jury’s verdicts. But the Hastie

study found “no relationship between [deliberation] style

and final verdict.” Id. at 165.

Third, the Hastie study did not examine juries, like

the jury in this case, that returned a unanimous verdict

despite being instructed that unanimity was not required

(it is not clear that any of the mock juries reached such a

result), and so it sheds little light on how those juries delib-

erated or whether their unanimous verdicts differed in any

way from those rendered by juries that were instructed that

unanimity was required.

To be sure, some research shows—contrary to the

Supreme Court’s presumption in Johnson—that juries that

328 State v. Flores Ramos

return a nonunanimous guilty verdict may not have given full

consideration to the views of the outvoted jurors. See Brief

of Law Professors and Social Scientists as Amici Curiae in

Support of Petitioner at 6-9, Ramos v. Louisiana, 590 US ___,

140 S Ct 1390. In those cases, the nonunanimity instruction

may well exert an influence on both deliberations and the

verdict, and for that reason the research cited by the Clinic

supports our decision to reverse the one nonunanimous ver-

dict in defendant’s case. But the same does not appear to

hold when jurors do, despite not being obligated to, reach a

unanimous verdict. The fact that the verdict is unanimous

provides some assurance, in and of itself, that no juror was

ignored and that all jurors’ reasonable doubts as to those

counts were resolved. Neither the social science research

that has been offered, nor common sense, calls that conclu-

sion into question, much less overcomes the presumption

articulated in Johnson. We therefore conclude that, though

slight differences in deliberative process may have occurred

had the jury been properly instructed, those potential dif-

ferences do not prevent us from concluding that the result

was not affected and that the error was harmless beyond a

reasonable doubt.

E. Mixed Verdicts

Defendant also advances a narrower argument—

that, even if the jury’s unanimous verdicts were not directly

affected by the erroneous jury instruction, those verdicts

could still have been indirectly affected. Defendant argues

that “it is certain that the instructional error affected delib-

erations because the jury was not 12-0 on every count.”

(Emphasis in original.) That is, had the jury been properly

instructed, it would have continued deliberating past the

point at which it returned its verdict on the attempted first-

degree rape charge, because two jurors still favored acquit-

tal on that charge.

The ultimate question in this case, however, is not

whether further deliberation on the attempted rape count could

have led to a different result as to that count, but whether we

can conclude, beyond a reasonable doubt, that the jury’s deci-

sions on the other counts were unaffected. We know from the

jury poll that, as to the other four counts, the jury—including

Cite as 367 Or 292 (2020) 329

the two jurors who would have acquitted defendant on the

attempted first-degree rape count—unanimously agreed that

defendant was guilty beyond a reasonable doubt.

That fact lends strong support to a conclusion that

the instructional error was harmless as to the unanimous

verdicts. As the Supreme Court has explained, the harm-

less error analysis proceeds on the assumption “that the

jury considered all the evidence bearing on the issue in

question before it made the findings on which the verdict

rested,” except in cases where the instructions precluded the

jury from doing so. Yates v. Evatt, 500 US 391, 405-06, 111

S Ct 1884, 114 L Ed 2d 432 (1991), overruled in part on other

grounds by McGuire, 502 US 62. Here, the jury was prop-

erly instructed on the elements of each count, the beyond-a-

reasonable-doubt standard, its “duty to weigh the evidence

calmly and dispassionately,” and its obligation to “return a

verdict of not guilty if, after careful and impartial consider-

ation of all the evidence in the case, you are not convinced

to a moral certainty that the defendant is guilty.” Giving

appropriate weight to the “almost invariable assumption of

the law that jurors follow their instructions,” Marsh, 481 US

at 206, the fact that the jury returned unanimous verdicts

on four counts tells us that each juror, after considering all

of the evidence, was convinced beyond a reasonable doubt of

the defendant’s guilt on those counts. We see no nonspecu-

lative basis for supposing that further deliberation on those

counts, based on the same evidence and among jurors who

already had unanimously agreed that defendant was guilty,

would have led jurors to change their minds. And defen-

dant’s argument requires even more—a supposition that

further deliberation on a different count would have shaken

jurors’ confidence in the unanimous verdicts that they had

already reached.

The abstract possibility that a juror could have

changed his or her mind after further deliberation is insuf-

ficient to prevent us from concluding that the instructional

error was harmless beyond a reasonable doubt. The Supreme

Court addressed a similar argument in Harrington, 395 US

250. In that case, the Court considered whether a violation

of the Bruton rule—the introduction of two codefendant

330 State v. Flores Ramos

confessions implicating the defendant at a joint trial—was

harmless. Id. at 252. The defendant had argued that the

Court “must reverse if [the Court] can imagine a single

juror whose mind might have been made up because of [the

codefendants’] confessions and who otherwise would have

remained in doubt and unconvinced.” Id. at 254. But the

Court rejected that interpretation of the Chapman stan-

dard: “We of course do not know the jurors who sat. Our

judgment must be based on our own reading of the record

and on what seems to us to have been the probable impact

of the two confessions on the minds of an average jury.” Id.

Thus, even if we can imagine a juror changing his or her

mind because of further deliberations on a different charge,

that merely conceivable possibility, though significant in

the double jeopardy context, does not preclude us from find-

ing that the error is harmless beyond a reasonable doubt.

“To set a barrier so high that it could never be surmounted

would justify the very criticism that spawned the harmless-

error doctrine in the first place[.]” Neder, 527 US at 18.

Defendant cites no authority for the proposition

that a possibility so slim of a different result precludes a

finding that an error was harmless beyond a reasonable

doubt.8 The absence of authority on that point is notable,

8

The only decision that could be read to lend support to defendant’s position

is Blueford v. Arkansas, 566 US 599, 607-08, 132 S Ct 2044, 182 L Ed 2d 937

(2012), a case that did not involve a harmless error question. In Blueford, the

defendant was charged with capital murder and several lesser-included homicide

offenses. Id. at 602. The jury was instructed that it could consider each lesser-

included offense only after concluding that the defendant was not guilty of all

greater-inclusive offenses. Id. After several hours of deliberation, and a reported

deadlock, the foreman reported that the jury had unanimously voted to acquit

the defendant of capital murder and first-degree murder but was deadlocked on

manslaughter. Id. at 603-04. The trial court had the jury deliberate for another

half hour and ultimately declared a mistrial, discharging the jury without any

further polling or verdict. Id. at 604.

The defendant argued to the Supreme Court that the Double Jeopardy Clause

barred his retrial for capital murder and first-degree murder, because he had

been acquitted on those charges in the first trial. The Court disagreed, holding

that the poll conducted by the trial court lacked the finality necessary to con-

stitute a verdict of acquittal. Id. at 606. The Court explained that the jury “was

free to reconsider a greater offense, even after considering a lesser one” and that

one or more jurors could have reconsidered their views on the greater-inclusive

offenses after further deliberation about the manslaughter charge. Id. at 607.

But the question before the Court in Blueford was meaningfully different from

the question before us in this case. In Blueford, the question of finality for double

jeopardy purposes turned only on whether the jury could have reconsidered its

Cite as 367 Or 292 (2020) 331

because the possibility of extended deliberations on a dif-

ferent offense presents a situation no different from any

time that an error affects one count in a multicount case.

For example, if evidence relevant to only one count is erro-

neously admitted against the defendant, it will be possible

that deliberations as to that count would have been pro-

longed had the evidence been properly excluded. Similarly,

an instructional error as to one count—misdescribing or

omitting an element, for example—may shorten deliber-

ations on that count. Defendant’s theory would be just as

applicable in those cases as it would be here, as any further

deliberation on any count would bring into play the abstract

possibility that a juror could change his or her mind about

a different charge. In effect, defendant’s position appears to

be that any time reversible error is found as to one count,

all other convictions must be reversed, unless, perhaps, they

are supported by overwhelming evidence.

Defendant’s argument would require a substantial

break from past practice. Although we have never expressly

considered defendant’s argument before, we have sustained

convictions in several cases in which defendant’s position

would have required reversal. For example, in State v. Boots,

308 Or 371, 374-75, 780 P2d 725 (1989), two theories of

aggravated murder were submitted to the jury, and the jury

was instructed that it did not need to unanimously agree on

a theory of aggravation to convict the defendant of aggra-

vated murder. We held that that failure to require unanim-

ity on the elements of the crime violated Article I, section 11.

Id. at 377. However, we reversed only the defendant’s convic-

tion on aggravated murder, permitting the state the option

of retaining the murder conviction, as to which the jury

had necessarily reached unanimous agreement. Id. at 381.

The likelihood that a properly instructed jury would have

deliberated longer, and could conceivably have reached a

different result on the murder conviction, did not feature in

the analysis. As we explained, in a second appeal after our

remand, “an error-free conviction of a criminal offense need

not be retried even though an appellate court has ordered

view. Thus, a purely theoretical possibility that a single juror could have recon-

sidered her view about a different count was enough to prevent the judge’s poll

from representing a final verdict.

332 State v. Flores Ramos

a retrial of a greater offense of which the lesser offense is a

lesser-included offense.” State v. Boots, 315 Or 572, 577, 848

P2d 76 (1993).

Similarly, in State v. Lotches, 331 Or 455, 17 P3d

1045 (2000), the trial court erred in failing to instruct the

jury about the need for unanimity as to the basis for three

aggravated murder convictions. We determined that, as to

two of the counts, the error was not harmless because the

jury may not have been unanimous as to the basis for each

conviction. Id. at 470-71. With respect to the third count,

however, we determined that the error was harmless because

a different verdict revealed that jury necessarily did agree

on the basis for that conviction. Id. at 471-72. Although a

properly instructed jury may well have deliberated longer

on the other two aggravated murder counts, we did not hold

that those errors required reversal of the third count or of

any of defendant’s other convictions. Id. at 472.

Boots and Lotches admittedly were not decided

under the “harmless beyond a reasonable doubt” standard

applicable to federal constitutional violations, but we see no

indication that that standard must be applied any differ-

ently. In United States v. Russell, 134 F3d 171 (3d Cir 1998),

for example, the defendant was convicted of conducting a

continuing criminal enterprise (CCE) and of conspiracy to

distribute controlled substances. The jury was instructed

that, to return a conviction on the CCE count, it needed to

unanimously find that defendant participated in at least

three violations of federal drug laws but was not told that it

needed to unanimously agree on which violations occurred.

Id. at 177. The court held that the defendant’s right to jury

unanimity had been violated and held, under the Chapman

standard, that the error was not harmless as to the CCE

count. Id. at 182. But the court nonetheless affirmed defen-

dant’s conspiracy conviction. Id. at 184. See also State v.

Charboneau, 323 Or 38, 51, 913 P2d 308 (1996) (finding

errors harmless as to some counts but not others under the

Chapman standard).

And in Benton v. Maryland, 395 US 784, 89 S Ct

2056, 23 L Ed 2d 707 (1969), the Supreme Court consid-

ered something of the reverse situation. In that case, the

Cite as 367 Or 292 (2020) 333

defendant had been convicted of burglary and acquitted

of larceny at a single trial. Id. at 785. After an appeal, the

defendant’s burglary conviction was reversed, and the state

retried him—for both burglary and larceny. Id. at 786. The

Court held that retrying the defendant for larceny violated

the Double Jeopardy Clause, as the defendant had already

been tried and acquitted of that offense. Id. at 796. The

defendant also sought reversal of his burglary charge, argu-

ing that “some evidence, inadmissible under state law in a

trial for burglary alone, was introduced in the joint trial for

both burglary and larceny, and that the jury was prejudiced

by this evidence.” Id. at 797. The Court did not adopt a per

se rule that the mere submission of the larceny offense to

the jury, by resulting in additional deliberation on a related

topic, could have affected the verdict on the burglary offense.

Rather, the Court concluded that “[i]t is not obvious on the

face of the record that the burglary conviction was affected

by the double jeopardy violation” and remanded the case to

consider whether the larceny charge had led to consideration

of additional evidence. Id. at 798. Thus, the Court necessar-

ily found that the abstract possibility of an effect on delibera-

tion was insufficient to preclude the finding of harmlessness

beyond a reasonable doubt and indicated that only a direct

effect on the verdict would suffice to require reversal.

While none of those decisions expressly considered

the argument that defendant advances here, they demon-

strate that the approach to harmless error that defendant

would have us adopt—a view that any change that would

have lengthened jury deliberations on one count reason-

ably could have affected the verdict on any count—would be

inconsistent with prior practice, in this court and in others.

For the reasons given above, the possibility that the jury

would have reached a different result on the unanimous

counts because of further deliberation on the attempted

rape count is too remote to persuade us that the error that

occurred in this case was not harmless beyond a reasonable

doubt.

V. CONCLUSION

Because the jury failed to reach a unanimous guilty

verdict on count three, attempted first-degree rape, we reverse

334 State v. Flores Ramos

defendant’s judgment of conviction as it pertains to that

crime. However, as to the unanimous guilty verdicts on all

other counts, we conclude that the trial court’s instruction

to the jury that it could return a nonunanimous verdict did

not amount to a structural error and was harmless beyond

a reasonable doubt. We therefore affirm the judgment as to

defendant’s other convictions.

The decision of the Court of Appeals is affirmed in

part and reversed in part. The judgment of the circuit court

is affirmed in part and reversed in part, and the case is

remanded to the circuit court for further proceedings.