State v. Martineau, 505 P.3d 1094

Defendant (Martineau) was tried and convicted by a unanimous jury on multiple counts including second-degree robbery, menacing, theft, and unlawful use of a vehicle.
Trial occurred after the U.S. Supreme Court’s Ramos decision, which held the Sixth Amendment requires unanimous guilty verdicts; Ramos overruled Apodaca.
Martineau proffered an instruction requiring unanimity for guilty verdicts (12/12) but allowing nonunanimous acquittals (10+ jurors for not guilty). The trial court rejected that instruction and instead instructed that both guilty and not-guilty verdicts must be unanimous.
On appeal, the State conceded the trial court’s instruction was erroneous (Ross later held Ramos requires unanimity to convict but does not preclude nonunanimous acquittals).
The court concluded the trial court erred in refusing the proffered instruction but applied Oregon’s harmless-error standard (Davis) and found the instructional error had little likelihood of affecting the unanimous guilty verdicts.
Defendant’s arguments that the error was structural or non-harmless (relying on Zolotoff) were rejected in light of precedent (Flores Ramos) and the unanimity of the verdicts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred in rejecting an instruction that acquittals could be nonunanimous (10+ jurors) while requiring unanimity for convictions	State conceded the court’s instruction was erroneous; defendant’s proffered instruction was correct under Oregon law post-Ross	Trial court’s unanimity instruction was correct given Ramos and its recognition of racist origins of nonunanimous provisions	Court: Error — Ross controls; Ramos requires unanimous convictions but does not forbid nonunanimous acquittals; trial court erred in rejecting the proffered instruction
Whether that instructional error requires reversal (i.e., was it harmful vs. harmless)	The error was harmless because the jury returned unanimous guilty verdicts, which gives assurance that all jurors were convinced beyond a reasonable doubt	The error was structural or, at minimum, not harmless under Davis and Zolotoff because a correct instruction would have given the jury a different legal framework	Court: Harmless — little likelihood the error affected verdicts; affirmed convictions

State v. Ross, 367 Or. 560 (Oregon Supreme Court 2021) (Ramos requires unanimous convictions but does not preclude nonunanimous acquittals)
Ramos v. Louisiana, 140 S. Ct. 1390 (U.S. 2020) (Sixth Amendment requires unanimous guilty verdicts for serious offenses)
Apodaca v. Oregon, 406 U.S. 404 (U.S. 1972) (prior Supreme Court precedent permitting nonunanimous verdicts overruled by Ramos)
State v. Flores Ramos, 367 Or. 292 (Oregon Supreme Court 2020) (erroneous instruction allowing nonunanimous verdicts was not structural error and was harmless beyond a reasonable doubt)
State v. Davis, 336 Or. 19 (Oregon Supreme Court 2003) (Oregon harmless-error standard: affirm if little likelihood error affected the verdict)
State v. Zolotoff, 354 Or. 711 (Oregon Supreme Court 2014) (discusses when omission of an instruction may be non-harmless)