478 P.3d 504
Or.2020Background
- Defendant Zackery Chorney-Phillips was tried on first- and second-degree custodial interference; a 12-person jury found him guilty on both counts.
- At trial (pre-Ramos), the court instructed the jury that a verdict could be returned if “ten or more jurors” agreed; defendant did not object to that instruction.
- After the verdict form (which did not show individual votes), the court polled jurors individually; each juror answered “Yes” when asked if that was their verdict; defense counsel told the court he was satisfied with the poll.
- The two guilty verdicts were merged for sentencing into a single first-degree custodial interference conviction; defendant appealed and the Court of Appeals affirmed.
- The Oregon Supreme Court granted review after the U.S. Supreme Court decided Ramos v. Louisiana (holding Sixth Amendment unanimity requirement).
- The State conceded the instruction was erroneous; defendant argued the error was structural or, alternatively, not harmless because the jury poll did not reliably show unanimity; defendant also sought plain error review of an unpreserved claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether instructing that nonunanimous verdicts were permitted is a structural error requiring automatic reversal | Instructional error, but not structural; harmlessness analysis applies | Instructional error is structural and mandates reversal | Not structural (following State v. Flores Ramos); reversible-error analysis governs |
| Whether a unanimous jury poll can render a nonunanimous instruction harmless beyond a reasonable doubt | Yes — if the poll shows unanimity, the error is harmless | A jury poll cannot reliably establish unanimity; Chapman harmlessness not satisfied | A unanimous poll can make the error harmless (per Flores Ramos), but sufficiency of the poll here was not resolved on appeal |
| Whether the unpreserved unanimity claim warrants plain error review | Defendant accepted the poll at trial; that acceptance forecloses challenging poll adequacy on appeal | Even if unpreserved, this court should review for plain error in light of Ramos | Court declined to exercise discretion to review as plain error because defendant told the court he was satisfied with the poll, preventing record development (citing State v. Dilallo) |
| Whether the trial record (jury poll) here shows unanimity such that the error is harmless | Poll responses (“Yes” from each juror) establish unanimous verdicts | Poll may be insufficient to prove unanimity; thus error not harmless | Court did not decide the sufficiency question on the merits because defendant had accepted the poll; conviction affirmed |
Key Cases Cited
- Ramos v. Louisiana, 590 U.S. _ (Sixth Amendment requires jury unanimity for serious offenses)
- State v. Flores Ramos, 367 Or. 292 (2020) (nonunanimous-instruction not structural; unanimous poll can make error harmless)
- State v. Dilallo, 367 Or. 340 (2020) (declining plain-error review where defendant accepted jury poll; preservation purpose)
- Chapman v. California, 386 U.S. 18 (harmless-beyond-a-reasonable-doubt standard for federal constitutional errors)
- Peeples v. Lampert, 345 Or. 209 (2008) (preservation requirement and procedural fairness)