State v. Heine

                                        14

Submitted on remand from the Oregon Supreme Court August 25, 2020; argued
       on remand February 17; reversed and remanded March 17, 2021


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                       RYAN NOLAN HEINE,
                        Defendant-Appellant.
                     Benton County Circuit Court
                        16CR65170; A165326
                                    

    A 12-person jury found defendant guilty, by nonunanimous verdicts, of two
crimes: the Class C felony of tampering with a witness, ORS 162.285, and the
Class B misdemeanor of harassment, ORS 166.065. Defendant appealed, the
Court of Appeals affirmed without opinion, State v. Heine, 

, 

 (2019), and defendant petitioned the Oregon Supreme Court for review.
In the interim, the United States Supreme Court issued Ramos v. Louisiana,

, 

, 

 (2020), so the Oregon Supreme
Court vacated and remanded Heine for reconsideration in light of Ramos. State
v. Heine, 

, 

 (2020). On remand, defendant contends that
the jury unanimity requirement applies to petty offenses such as defendant’s
misdemeanor conviction. The state argues that, because there is no jury right for
petty offenses, a state may dispense with the requirement of unanimity when it
elects to use a jury to try a petty offense. Held: The Court of Appeals concluded
that, if a state opts to try a petty offense to a jury, then due process requires the
jury to reach a unanimous verdict to convict. Jury unanimity is a constitutional
bedrock of trial by an impartial jury in a criminal case. Further, given the racist
underpinnings of Oregon’s nonunanimous jury system, the court could not conclude that nonunanimous verdicts for petty offenses comported with due process.
    Reversed and remanded.


  On remand from the Oregon Supreme Court, State v.
Heine, 

, 

 (2020).
    David B. Connell, Judge.
   Sara F. Werboff, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Susan G. Howe, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Cite as 

 (2021)                         15

  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  LAGESEN, P. J.
  Reversed and remanded.
16                                                           State v. Heine

         LAGESEN, P. J.
         This case is before us on remand from the Oregon
Supreme Court for reconsideration in light of the United
States Supreme Court’s decision in Ramos v. Louisiana, 

, 

, 

 (2020). State v.
Heine, 

, 

 (2020).
         A 12-person jury found defendant guilty, by non-unanimous verdicts, of two crimes: the Class C felony of
tampering with a witness, ORS 162.285, and the Class B
misdemeanor of harassment, ORS 166.065. At this point,
the parties agree that defendant’s felony conviction must be
reversed because the jury’s verdict was not unanimous. The
issue is whether the same is true for his misdemeanor conviction. That is, if an Oregon misdemeanor charge is tried to
a 12-person jury, must the verdict be unanimous to convict?1
We conclude that it must be and, for that reason, reverse
both convictions and remand.
         A grand jury indicted defendant on three felony
charges (two counts of coercion, one count of tampering with
a witness) and two misdemeanor charges (two counts of
harassment). A 12-person petit jury found defendant guilty
of tampering with a witness and one count of harassment
by 11-1 guilty verdicts. It acquitted him on the remaining
charges. Defendant appealed, we affirmed without opinion,
and defendant petitioned the Oregon Supreme Court for
review of our decision. See Heine, 

; see also State
v. Heine, 

, 

 (2019) (affirming
without opinion). Then, the United States Supreme Court
decided Ramos. It held that the Sixth Amendment to the
United States Constitution right to trial “by an impartial
jury,” as incorporated against the states via the Fourteenth
Amendment to the United States Constitution, includes
the right to a unanimous verdict in the case of a “serious
offense.” Ramos, 590 US at ___, 

. The
Oregon Supreme Court, in turn, vacated our previous decision and remanded to us “for reconsideration in light of
Ramos.” Heine, 

.
    1
      Misdemeanors may be tried to a six-person jury. ORS 136.210(2). The verdict of a six-person jury must be unanimous, State v. Rolfe, 

,

 (2020), so the possibility of a nonunanimous verdict on a misdemeanor arises only when such charges are presented to a 12-person jury.
Cite as 

 (2021)                                               17

        On remand, the parties have supplied helpful supplemental briefing and oral argument. They agree, as noted,
that defendant’s felony conviction must be reversed.
         The remaining question, one we have not yet considered on the merits, is whether defendant’s misdemeanor
conviction also must be reversed. That remains a question because (1) defendant’s conviction is a Class B misdemeanor for which a maximum of six months’ incarceration
is authorized, ORS 161.615(2); and (2) the Sixth Amendment
allows for “petty offenses”—those for which no more than six
months of incarceration is authorized—to be tried with no
jury whatsoever. Ramos, 590 US at ___, 

 n 7
(“Under existing precedent and consistent with a common
law tradition not at issue here, a defendant may be tried
for certain ‘petty offenses’ without a jury.” (Quoting Cheff
v. Schnackenberg, 

, 

, 

 (1966).)). So, if a state can dispense with a jury altogether, can it dispense with the requirement of unanimity
when it elects to use a jury to try a petty offense?2 Or, does
a unanimity requirement go hand-in-hand with the use of a
jury to determine criminal liability?
         Defendant argues that it does. Defendant acknowledges, as did the Court in Ramos, that the Sixth Amendment,
as incorporated against the states by way of the Fourteenth
Amendment, did not require Oregon to supply him with
a jury trial for a petty offense. But, once the state did so,
defendant contends, due process independently required the
state to supply a fair jury process, something that, in defendant’s view, required unanimity for a conviction. In support
of that proposition, defendant points to Evitts v. Lucey, 

, 

, 

 (1985).
        In response, the state argues in the main that
the fact that the Sixth and Fourteenth Amendments do
not require jury trials for petty offenses is dispositive. In
essence, in the state’s view, because the federal constitution
    2
      Since Ramos was decided, we have twice upheld convictions for Class B
misdemeanors that were entered on nonunanimous verdicts. See State v. Paluda,

, 

 (2020); State v. Gutierrez, 

, 

 (2020). Neither case required us to address the point at issue here: whether
having chosen to provide a jury trial on a misdemeanor when not otherwise
required to do so, due process requires jury unanimity.
18                                              State v. Heine

gives the state the discretion not to supply any jury at all for
petty offenses, allowing a jury to convict of a petty offense
by a nonunanimous jury verdict is compatible with the federal constitution.
         We are persuaded by Evitts, together with the reasoning in Ramos, that, if a state opts to try a petty offense to
a jury, then due process requires the jury to reach a unanimous verdict to convict.
          At issue in Evitts was whether a criminal defendant
has the right to the effective assistance of counsel during
an initial direct appeal provided by a state as a matter of
right. 

. Arguing against that result, the
state (Kentucky) pointed to the fact that, under McKane v.
Durston, 

, 

, 

 (1894), “a State
need not provide a system of appellate review as of right at
all.” Evitts, 

. Consequently, Kentucky argued,
any deficiency in that constitutionally optional appellate
process “ ‘is of no due process concern to the Constitution.’ ”

 (quoting Kentucky’s brief).
         The Court was not convinced by Kentucky. Although
the Court recognized that, under its precedent, the state
had the discretion to supply no appellate process at all, it
concluded that, “when a State opts to act in a field where its
action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution—
and, in particular, in accord with the Due Process Clause.”

. Further, the Court explained, due process requires
that whatever process a state offers must, ultimately, be one
that is consistent with the notion of “fairness between the
State and the individual dealing with the State.” 

(internal quotation marks omitted).
         The circumstances in which we find ourselves are
quite similar to those in Evitts. Under Cheff, the state was
not required to provide defendant with a jury trial to convict him of a Class B misdemeanor. Cheff, 

. A
court trial would have satisfied the Sixth and Fourteenth
Amendments. See 

 But, having elected to provide defendant with a jury trial, that jury trial was required to comport “with the dictates of the Constitution—and, in particular, [be] in accord with the Due Process Clause.” Evitts,
Cite as 

 (2021)                                     19

. Here, in view of what we have learned
from Ramos, we conclude that defendant’s conviction by a
nonunanimous verdict does not satisfy due process. That is
so for two reasons.
        First, in overruling Apodaca v. Oregon, 

,

, 

 (1972), the precedent allowing
for nonunanimous verdicts in state courts, the Court made
clear that a key reason for discarding prior case law was
that jury unanimity is constitutional bedrock when it comes
to what it means to be tried by an “impartial jury.” Taking
a no-page-unturned tour of learned treatises addressing the
importance of jury unanimity, the Court explained:
   “Wherever we might look to determine what the term ‘trial
   by an impartial jury trial’ meant at the time of the Sixth
   Amendment’s adoption—whether it’s the common law,
   state practices in the founding era, or opinions and treatises written soon afterward—the answer is unmistakable.
   A jury must reach a unanimous verdict in order to convict.”
Ramos, 590 US at ___, 

. And then it repeated,
“If the term ‘trial by an impartial jury’ carried any meaning
at all, it surely included a requirement as long and widely
accepted as unanimity.” 

.
         The takeaway, as we see it, is that the unanimity
requirement is a core and critical component of an impartial
jury in a criminal case. Because of that, it is not something
that due process allows a state to dispense with by entering
convictions on nonunanimous guilty verdicts. Otherwise,
the constitution would be sanctioning convictions by a jury
that did not qualify as an impartial one under Ramos, something that does not comport with the idea of a fair process.
         Second, in addressing Oregon’s practice of entering
criminal convictions based on nonunanimous jury verdicts,
the Court made note of the racist origins of that practice. It
observed, “Adopted in the 1930s, Oregon’s rule permitting
nonunanimous verdicts can be similarly traced to the rise
of the Ku Klux Klan and efforts to dilute ‘the influence of
racial, ethnic, and religious minorities on Oregon juries.’ ”
Ramos, 590 US at ___, 

 (quoting State v.
Williams, No. 15CR58698, at 16 (Multnomah Cty Cir Ct,
Dec 15, 2016) (James, Circuit Judge) (footnote omitted)).
20                                                      State v. Heine

         Although the majority opinion did not reach the
issue, having concluded that a unanimity requirement is an
essential part of an impartial jury, Justice Sotomayor and
Justice Kavanaugh reasoned that the racist underpinnings
of Oregon’s nonunanimous jury practice also brought it into
conflict with the Fourteenth Amendment, apart from the
incorporated Sixth Amendment right.
           Justice Sotomayor wrote:
         “Finally, the majority vividly describes the legacy of
     racism that generated Louisiana’s and Oregon’s laws.
     Although Ramos does not bring an equal protection challenge, the history is worthy of this Court’s attention. That
     is not simply because that legacy existed in the first place—
     unfortunately, many laws and policies in this country have
     had some history of racial animus—but also because the
     States’ legislatures never truly grappled with the laws’ sordid history in reenacting them. See generally United States
     v. Fordice, 

, 

, 

     (1992) (policies that are ‘traceable’ to a State’s de jure racial
     segregation and that still ‘have discriminatory effects’
     offend the Equal Protection Clause).
        “Where a law otherwise is untethered to racial bias—
     and perhaps also where a legislature actually confronts a
     law’s tawdry past in reenacting it—the new law may well
     be free of discriminatory taint. That cannot be said of the
     laws at issue here.”
Ramos, 590 US at ___, 

 (Sotomayor, J., concurring) (internal cross-references omitted).
           Similarly, Justice Kavanaugh wrote:
         “In light of the racist origins of the non-unanimous
     jury, it is no surprise that non-unanimous juries can make
     a difference in practice, especially in cases involving black
     defendants, victims, or jurors. After all, that was the whole
     point of adopting the non-unanimous jury requirement in
     the first place. And the math has not changed. Then and
     now, non-unanimous juries can silence the voices and
     negate the votes of black jurors, especially in cases with
     black defendants or black victims, and only one or two black
     jurors. The 10 jurors ‘can simply ignore the views of their
     fellow panel members of a different race or class.’ Johnson
     v. Louisiana, 

, 

, 32 L Ed 2d
Cite as 

 (2021)                                    21

   152 (1972) (Stewart, J., dissenting). That reality—and the
   resulting perception of unfairness and racial bias—can
   undermine confidence in and respect for the criminal justice system. The non-unanimous jury operates much the
   same as the unfettered peremptory challenge, a practice
   that for many decades likewise functioned as an engine
   of discrimination against black defendants, victims, and
   jurors. In effect, the non-unanimous jury allows backdoor
   and unreviewable peremptory strikes against up to 2 of the
   12 jurors.”

 at ___, 

 (Kavanaugh, J., concurring).
        To conclude that Oregon’s practice of accepting
nonunanimous jury verdicts for misdemeanors comports
with the requirements of due process, we would need to
account for why accepting nonunanimous verdicts for misdemeanors is consistent with the notion of “fairness between
the State and the individual dealing with the State,” in
the face of the racially discriminatory flaws in the system
so clearly articulated by Justice Sotomayor and Justice
Kavanaugh. Evitts, 

 (internal quotation marks
omitted). That is, we would have to be able to explain why a
system that, in Justice Kavanaugh’s words, “function[s] as
an engine of discrimination against black defendants, victims, and jurors” nonetheless is fair when applied to misdemeanors. Ramos, 590 US at ___, 

(Kavanaugh, J., concurring). We find ourselves unable to do
that.
         For these reasons, we conclude that, consistent with
Evitts and Ramos, due process requires jury unanimity to
convict a criminal defendant when the defendant is tried by
a jury, regardless of the nature of the offense for which the
defendant is on trial. Because defendant’s convictions here
were entered based on nonunanimous verdicts, we reverse
both of them and remand for further proceedings.
        Reversed and remanded.