481 P.3d 441
Or. Ct. App.2021Background
- Merrill was convicted by a jury of felony fourth‑degree assault (Count 1) and felony strangulation (Count 2), both domestic‑violence offenses.
- The trial court instructed the jury that a verdict may be reached with ten or more jurors (i.e., nonunanimous instruction allowed under then‑applicable Oregon practice).
- The jury returned a unanimous guilty verdict on Count 1 and a nonunanimous guilty verdict on Count 2; Merrill did not request a unanimity instruction and did not object to the nonunanimous verdict.
- On initial appeal the court rejected Merrill’s arguments about statutory merger between the two counts but did not address supplemental assignments challenging nonunanimous verdicts.
- Merrill petitioned for reconsideration; the state conceded that the nonunanimous conviction on Count 2 was erroneous; the court accepted that concession, reversed Count 2, and remanded for resentencing; the challenge to Count 1 was foreclosed by State v. Flores Ramos.
- The court left its prior discussion of the merger issue intact because a retrial and any renewed conviction on Count 2 could make that issue live on remand.
Issues
| Issue | State's Argument | Merrill's Argument | Held |
|---|---|---|---|
| Whether the nonunanimous instruction and acceptance of a nonunanimous verdict on Count 2 requires reversal | State conceded the nonunanimous conviction was error and urged the court to exercise discretion to correct it | Nonunanimous instruction/conviction is structural or plain error requiring reversal | Court accepted state’s concession, exercised discretion under Ulery to correct as plain error, reversed Count 2 and remanded for resentencing/trial as appropriate |
| Whether a nonunanimous instruction on Count 1 (where verdict was unanimous) entitles Merrill to relief | State argued Flores Ramos forecloses relief where verdict is unanimous | Merrill argued the nonunanimous instruction was erroneous even though verdict ended up unanimous | Relief foreclosed by State v. Flores Ramos; no reversal on Count 1 |
| Whether Merrill’s assault and strangulation convictions merge under Oregon law | State maintained convictions do not merge; original opinion rejected merger claims | Merrill argued the convictions should merge | Original opinion’s rejection of merger stands; court did not withdraw that analysis because merger could recur if Count 2 is retried and reconvicted |
| Whether the appellate court should modify its prior opinion after reconsideration | State asked the court to accept concession and modify disposition accordingly | Merrill sought reconsideration to raise supplemental unanimity claims | Court allowed reconsideration, modified prior opinion, reversed Count 2, remanded for resentencing, otherwise affirmed |
Key Cases Cited
- Ramos v. Louisiana, 140 S. Ct. 1390 (U.S. 2020) (U.S. Supreme Court decision holding jury verdicts to convict must be unanimous)
- State v. Ulery, 464 P.3d 1123 (Or. 2020) (Oregon Supreme Court authorizing exercise of appellate discretion to order a new trial when a nonunanimous verdict was accepted)
- State v. Flores Ramos, 478 P.3d 515 (Or. 2020) (Oregon Supreme Court holding that a defendant who receives a unanimous verdict cannot obtain relief based solely on a nonunanimous instruction)
- State v. Merrill, 463 P.3d 540 (Or. App. 2020) (original Court of Appeals opinion addressing merger arguments, later modified on reconsideration)