State v. Scott
483 P.3d 701
Or. Ct. App.2021Background
- Scott was tried on four felony counts; she requested a unanimous-jury instruction but the trial court instead instructed that a verdict could be reached by 10 or more jurors.
- Scott excepted to the nonunanimous instruction at trial.
- The jury returned guilty verdicts on three counts; the court asked whether either party wanted a jury poll and both the state and Scott declined.
- Scott’s convictions led to a probation revocation in a consolidated proceeding.
- On appeal Scott argued the nonunanimous instruction violated her Sixth Amendment right (Ramos), the error was preserved, and the state failed to prove the error harmless beyond a reasonable doubt because no jury poll was taken.
- The State conceded the instruction was erroneous but contended Scott failed to preserve the issue or to supply an adequate record (i.e., by not requesting a poll).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Scott) | Held |
|---|---|---|---|
| Whether the trial court’s instruction permitting a nonunanimous verdict violated the Sixth Amendment | Instructional error was conceded, but reversal is not required because preservation/record defects limit relief | Instruction that a less-than-unanimous verdict was permissible violated the Sixth Amendment (Ramos/Flores Ramos) | The instruction violated the Sixth Amendment |
| Whether Scott preserved the constitutional objection | Scott failed to preserve an adequate record because the jury was not polled; precedent (Dilallo/Whelchel) weighs against review | Scott preserved the issue by requesting a unanimous instruction and excepting to the nonunanimous instruction | Scott preserved the objection by timely requesting and excepting to the instruction |
| Who bears the burden to show harmlessness and whether the State met it | Even if preserved, the record lacks a poll; Scott should have requested one to show unanimity | The State, as beneficiary of the constitutional error, must prove harmlessness beyond a reasonable doubt; by declining the poll the State left the record inadequate | Federal harmless-error rule applies; the State (beneficiary) must prove harmlessness beyond a reasonable doubt and failed to do so because no poll was taken |
| Remedy for the constitutional error | No plain-error relief should be denied absent a poll or adequate record | Reverse convictions and remand because harmlessness not shown | Convictions and resulting probation revocation reversed and remanded |
Key Cases Cited
- Ramos v. Louisiana, 590 U.S. _ (Sixth Amendment requires unanimous jury for serious offenses)
- State v. Flores Ramos, 367 Or. 292 (Oregon Supreme Court: giving a nonunanimous instruction violates Sixth Amendment)
- Chapman v. California, 386 U.S. 18 (state must prove constitutional error harmless beyond a reasonable doubt)
- Arizona v. Fulminante, 499 U.S. 279 (harmless-error framework for nonstructural constitutional errors)
- State v. Dilallo, 367 Or. 340 (refusal to exercise plain-error review where defendant did not object and no poll was taken)
- United States v. Olano, 507 U.S. 725 (distinguishing burdens for preserved vs. unpreserved error)