State v. Chorney-Phillips

355

Argued and submitted August 18, decision of Court of Appeals and judgment of

circuit court affirmed December 24, 2020

STATE OF OREGON,

Respondent on Review,

v.

ZACKERY JOSHUA CHORNEY-PHILLIPS,

Petitioner on Review.

(CC 17CR81310) (CA A167674) (SC S067557)

478 P3d 504

At defendant’s trial, the jury was instructed that it could return nonunani-

mous guilty verdicts. Defendant did not object. The jury found defendant guilty,

and, during a jury poll, all jurors agreed that it was their verdict. The Court

of Appeals affirmed defendant’s conviction. Held: (1) In light of State v. Flores

Ramos, 367 Or 292, 478 P3d 515 (2020), defendant’s challenge came down to an

argument that the jury poll did not show that the verdict was unanimous; (2) for

reasons similar to those given in State v. Dilallo, 367 Or 340, 478 P3d 509 (2020),

plain error review was inappropriate because defendant told the trial court that

he was satisfied with the jury poll, impeding further development of the record.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

En Banc

On review from the Court of Appeals.*

Joshua B. Crowther, Deputy Public Defender, Office of

Public Defense Services, Salem, argued the cause and filed

the briefs for petitioner on review. Also on the briefs was

Ernest G. Lannet, Chief Defender.

Christopher A. Perdue, Assistant Attorney General,

Salem, argued the cause and filed the brief for respondent on

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 for amicus curiae Street Roots.

______________

* On appeal from Polk County Circuit Court, Norman R. Hill, Judge. 301 Or

App 853, 455 P3d 1049 (2020).

356 State v. Chorney-Phillips

Jonathan Zunkel-deCoursey, Schwabe, Williamson &

Wyatt, P.C., Portland, filed the brief for 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 for 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 for 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.

FLYNN, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

Cite as 367 Or 355 (2020) 357

FLYNN, J.

In this case, we again address the application 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 Amendment requires a

jury to be unanimous in order to convict a defendant of a

serious offense.

Defendant was charged with first- and second-

degree custodial interference and was found guilty on both

counts by a 12-person jury. In the trial, which occurred before

the Supreme Court’s decision in Ramos, the court instructed

the jury that “[t]en or more jurors must agree on your ver-

dict,” and defendant did not object to that jury instruction.

After the jury returned its verdict, on a form that contains

no indication of how individual jurors voted, the trial court

polled the jury at defendant’s request. The trial court first

informed the jurors that it would call on them one at a time,

by seat number and explained, “I just want you to let me

know if this was your verdict.” The court then called the

juror seat numbers one at a time, and each juror responded,

“Yes.” After the twelfth juror responded, the court asked

defense counsel if he was satisfied, and he responded that

he was. For purposes of sentencing, the court merged

the jury’s two guilty verdicts into one conviction for first-

degree custodial interference and then entered judgment

accordingly.

Defendant appealed, assigning error to the non-

unanimous jury instruction, as well as to other rulings that

are not at issue on review. In a decision issued before the

Supreme Court’s decision in Ramos, the Court of Appeals

affirmed defendant’s conviction without opinion. State v.

Chorney-Phillips, 301 Or App 853, 455 P3d 1049 (2020).

Defendant filed a petition for review, which this

court allowed after the United States Supreme Court decided

Ramos. Defendant argues that Ramos requires that his con-

viction be reversed. He first contends that the nonunani-

mous jury instruction was a structural error, which always

requires reversal. In the alternative, he argues that the erro-

neous instruction requires reversal under the federal harm-

less error standard because the poll of the jury is insufficient

358 State v. Chorney-Phillips

to establish that the jury instruction was harmless beyond a

reasonable doubt. See Chapman v. California, 386 US 18, 24,

87 S Ct 824, 17 L Ed 2d 705 (1967) (establishing the “harm-

less beyond a reasonable doubt” harmless error standard for

federal constitutional violations). Acknowledging that his

assignment of error was unpreserved, defendant also argues

that his challenge to the nonunanimous jury instruction

qualifies for plain error review and that this court should

reverse defendant’s convictions regardless of whether he

objected to the jury instruction in the trial court.

The state does not dispute that the instruction

was given in error, but it argues that the error is harmless

because each of defendant’s convictions is based on a unan-

imous verdict. The state also argues that defendant’s accep-

tance of the jury poll in the trial court prevents him from

challenging the adequacy of the jury poll on appeal.

Nearly all of the questions that this case raises

are resolved by our decision in State v. Flores Ramos, 367

Or 292, 478 P3d 515 (2020), also issued today. In Flores

Ramos, the defendant made identical arguments that a jury

instruction permitting nonunanimous verdicts was struc-

tural error, that the error could not be held harmless error

even if it were subject to a harmlessness analysis, and that

the jury poll was insufficient to demonstrate that any of the

jury’s verdicts were, in fact, unanimous. We rejected each of

those arguments. First, Flores Ramos held that instructing

the jury that it could return a nonunanimous guilty verdict

is not a structural error. 367 Or at 319. Next, Flores Ramos

held that, where the jury poll reveals that the jury unani-

mously found the defendant guilty of the charged offense,

the nonunanimous jury instruction can be held harmless

beyond a reasonable doubt. Id. at 320. Finally, Flores Ramos

rejected the defendant’s argument that a jury poll could not

reliably show that the jury’s verdict was unanimous. Id. at

324. As a result, we held that the instructional error was

harmless as to the convictions that were clearly based on

unanimous verdicts.

This case differs from Flores Ramos in two pertinent

ways. First, in this case, defendant did not preserve an objec-

tion to the jury instruction that permitted nonunanimous

Cite as 367 Or 355 (2020) 359

guilty verdicts. As a result, defendant’s assignment of error

is reviewable only for plain error. See ORAP 5.45(1) (“No

matter claimed as error will be considered on appeal unless

the claim of error was preserved in the lower court * * *, pro-

vided that the appellate court may, in its discretion, con-

sider a plain error.”). Second, though defendant’s arguments

are largely identical to those advanced in Flores Ramos,

defendant also makes a narrower argument that the jury

poll in this case was insufficient to show that the jury was,

in fact, unanimous. Ultimately, we decline to reach that sec-

ond argument.

Although the nonunanimous jury instruction given

by the trial court may qualify as a plain error, we decline

to exercise our discretion to review that error, for reasons

similar to those given in our decision in State v. Dilallo, 367

Or 340, 478 P3d 509 (2020). In light of our decision in Flores

Ramos, defendant’s challenge to his conviction comes down

to his argument that the jury poll was insufficient to demon-

strate a unanimous verdict. But defendant told the trial

court that he was satisfied with the jury poll. As a result,

neither the state nor the trial court was alerted to the pos-

sible need to further develop the record, and “an important

purpose of the preservation requirement was not served[.]”

Dilallo, 367 Or at 347. Any “consequent uncertainty over

whether the erroneous jury instruction affected the result

of the trial is directly linked to defendant’s failure to object.”

Id. at 348. Thus, addressing defendant’s assignment of error,

which now turns entirely on the sufficiency of the record to

demonstrate jury unanimity, “would be contrary to the basic

goal of ‘procedural fairness to the parties and to the trial

court’ that motivates the preservation requirement.” Id. at

348 (quoting Peeples v. Lampert, 345 Or 209, 220, 191 P3d

637 (2008)).

For those reasons, we conclude that it is not appro-

priate to exercise our discretion to review defendant’s

unpreserved assignment of error as plain error. We there-

fore affirm defendant’s conviction.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.