State v. Brooks

                                  428

Submitted on remand from the Oregon Supreme Court June 24, 2021, reversed
                      and remanded March 16, 2022


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
               DELONTE ANTONIO BROOKS,
                   Defendant-Appellant.
                 Lane County Circuit Court
                   17CR10554; A165569
                              

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

, 

 (2021).
   Suzanne B. Chanti, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anne Fujita Munsey, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Hannah K. Hoffman, Assistant
Attorney General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
   PER CURIAM
   Reversed and remanded.
Cite as 

 (2022)                                   429

         PER CURIAM
         Defendant appeals from a judgment of conviction
on three counts of robbery in the first degree with a firearm, ORS 164.415, and one count each of theft in the first
degree with a firearm, ORS 164.055, kidnapping in the
second degree with a firearm, ORS 163.225, and burglary
in the first degree with a firearm, ORS 164.225. In our
previous opinion in this matter, we addressed defendant’s
first assignment of error, but affirmed without discussion
his second assignment of error, wherein he argued that the
trial court erred in denying his request for a unanimous
jury instruction. Subsequently, this case was remanded
to us by the Oregon Supreme Court in light of Ramos v.
Louisiana, 

, 

, 

(2020).
         Here, defendant requested a unanimous jury instruction, and excepted to the giving of the nonunanimous instruction, but the jury was not ultimately polled. Under that scenario, this case is controlled by State v. Scott, 

, 

 (2020), and its progeny: State v. Burke, 

, 

 (2021); State v. Perales, 

, 

 (2021); State v. Clark, 

,

 (2021); State v. Altamirano, 

,

 (2021); and State v. Yother, 

, 

 (2021). As we explained:
   “In State v. Scott, 

, 

   (2021), we explained that when the unanimous verdict
   instruction issue has been preserved and the erroneous
   instruction given, it is then incumbent on the party receiving the benefit of the constitutional error—the state—to
   demonstrate that the instructional error was harmless
   beyond a reasonable doubt. In this situation, the burden is
   not on defendant to demonstrate that the error was harmful, but on the state to demonstrate that the error was
   harmless beyond a reasonable doubt. 

 at 617-18 (citing
   cases concerning federal constitutional error standard).
   Given the lack of a jury poll in this case, the state is unable
   to demonstrate that the error was harmless beyond a reasonable doubt.”
430                                         State v. Brooks

Burke, 311 Or App at 612-13. Accordingly, defendant’s convictions are reversed, and this case is remanded for further
proceedings.
        Reversed and remanded.