State v. Lewis

No. 761              October 30, 2024                  685

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
              MACKENZIE WILLIAM LEWIS,
                   Defendant-Appellant.
              Multnomah County Circuit Court
                   19CR53040; A179402

  Benjamin N. Souede, Judge.
  Submitted July 25, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Oregon
Public Defense Commission, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
  SHORR, P. J.
  Affirmed.
686                                             State v. Lewis

         SHORR, P. J.
         Defendant appeals from a judgment of conviction
for one count of riot, ORS 166.015. Defendant raises three
assignments of error, asserting that the trial court erred
by (1) actively investigating the vote composition of the jury
before it had reached a verdict; (2) instructing the jury to
keep deliberating after it indicated it was at a deadlock; and
(3) refusing to grant a mistrial. For the reasons discussed
below, we reject defendant’s assignments of error and affirm
the judgment of the trial court.
                           I. FACTS
         The facts on appeal are largely procedural.
Following an incident at a bar in Portland, defendant was
indicted on one count of felony riot under ORS 166.015. After
closing arguments at the ensuing jury trial, the trial court
instructed the jury, in part, to “not tell anyone including me
how many of you are voting not guilty or guilty until you
have reached a lawful verdict or have been discharged.” At
10:36 a.m., the jury began deliberations.
         At around 3:30 p.m., after about four hours of deliberations,1 the jury sent the court this written question: “[I]f
one of the jurors says that their decision has been made and
that no amount of further discussion or review of evidence,
etcetera will change their mind, what do we do? Are there
next steps or recommendations? Is hung jury the outcome?”
At that point, the prosecutor suggested re-instructing the
jury on the requirements for a lawful verdict, in case the
jury did not understand that unanimity is required for a
guilty verdict but not an acquittal. That is, an 11 to one or
10 to two vote to acquit would be a lawful not-guilty verdict. See State v. Ross, 

, 

 (2021)
(“Oregon law … permits a not-guilty verdict by a vote of 11
to one or 10 to two.”).
         When asked if he had any response, defense counsel
said: “Well, I think that we’re where we are. And, bring them
in. And it’s either going to be a hung jury and retry. Or it’s
going to be, you know, not guilty.” The court then proposed
bringing the jury in, inquiring about the vote composition

   1
       The jury took an hour break for lunch.
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 (2024)                                              687

and direction, and then questioning each juror whether they
believed further deliberations would be useful. Based on the
jurors’ responses, the court would then determine whether
to give the deadlocked jury instruction, Uniform Criminal
Jury Instruction 1028.2 The court made note that defendant would object to giving the deadlocked jury instruction.
Before bringing in the jury, the court asked if anyone wished
to be heard further, to which defense counsel merely stated
that he did not “want [the jury] to feel that they’re being
scolded or schooled or anything. I think that that has to be
very much on the record that they are doing their job.”
          The court then brought the jurors back in and
asked the presiding juror to disclose the jury’s current vote,
without revealing the direction of the vote. The presiding
juror responded that the vote was 10 to two or 11 to one. The
court then asked the presiding juror, “[A]m I right in assuming that if—if the ten or eleven votes on the one side; that
they can only be votes for guilty because otherwise, the jury
would understand that you have a verdict?” The presiding
juror confirmed that was correct. The court then asked each
juror whether they believed continued deliberation would be
useful. All but one juror responded with cautious optimism.
The final juror confirmed that he did not believe further
deliberation would be productive. Directly following the jury
poll, the court stated, “Given the amount of evidence in this
case, the jury I think has been deliberating about four hours
so far. I think it’s appropriate to give you all some more time
to continue deliberations.” The court then sent the jury back
to deliberate further, saying, “I’m not going to give you any
additional instructions other than to urge you to continue
doing the work and following the instructions that have
already been given to you.”

   2
       Uniform Criminal Jury Instruction No. 1028 provides:
   “It is your duty as jurors to consult with one another and to deliberate with
   a view toward reaching an agreement if you can do so without surrendering
   your individual judgment. Each of you must decide the merits of the case for
   yourself, but do so only after impartially considering the evidence with your
   fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views, or to change your opinion, if you are convinced that it is
   erroneous. But do not surrender your own honest belief as to the weight of the
   evidence solely because of the opinion of your fellow jurors or merely for the
   purpose of returning a verdict.”
688                                            State v. Lewis

          After the jury departed, the court noted that it was
“appropriate” to allow the jury to continue deliberations
because “the vast majority of the jury seemed to believe that
they wanted to and were willing to continue to work.” The
court further noted that it was mindful of the “very clear
duty of the [c]ourt not to coerce the jurors.” The trial judge
was concerned “that giving a uniform instruction 1028
would be read as coercive,” but did not think sending them
back merely to continue was coercive. Defense counsel noted
that he felt the jury “had plenty of time” and “at least one
juror … was really definite,” but that he had “no problem
with letting [the jury] go ‘til another hour or two.” Defense
counsel further stated that “if they don’t get something by
[5:00 p.m.], I am just afraid that even asking them to come
back tomorrow is inherently coercive.”
         Some time after returning to deliberate, the jury
sent a note to the court which read: “Asked to have definition of public alarm?” The court responded in writing: “The
[c]ourt has provided the jury with all of the definitions it
intends to provide. The jury should view this term as carrying its commonly understood meaning.”
        At 4:55 p.m. the jury had not yet reached a verdict.
Court staff had been informed that one juror had to stop for
the day at 5:00 p.m. Defense counsel requested that the jury
“be excused” rather than return the next day to continue
deliberations. Defense counsel noted that his concern was
whether the jury would be able to “stay untainted” considering the way the case was “permeating the media.” The trial
judge responded, “I am not going to discharge the jury at
this time and declare a mistrial. I think given the amount
of evidence in this case and the amount of time the jury’s
been deliberating that would not be appropriate.” The clerk
then went to release the jury for the day with instructions to
return the next morning. The jury informed the court that
it would like to keep working, and before 5:30 p.m., the jury
returned a unanimous guilty verdict after approximately
six hours total of deliberation. After the court discharged
the jury, defense counsel moved again for mistrial, arguing that the cumulative coercive effect of the court’s actions
Cite as 

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created a guilty verdict.3 The court denied the motion for
mistrial on the grounds that it was untimely as the trial had
ended, and because the timing of deliberations indicated no
coercion. The trial lasted eight days and originally involved
two other defendants whose motions for judgment of acquittal were granted at the close of the state’s case.
                             II. ANALYSIS
A.    Inquiry Into the Numerical Division of the Jury
        In his first assignment of error, defendant asserts
that the trial court’s active investigation of the jury’s vote
composition was, itself, coercive. In the event we conclude
that the argument is not preserved, defendant requests
plain error review.
         “[A]n issue not preserved in the trial court will not
be considered on appeal.” State v. Wyatt, 

, 

 (2000). To preserve an issue for appellate review, a
party must provide the trial court with an “objection that
is specific enough to ensure that the court can identify its
alleged error with enough clarity to permit it to consider and
correct the error immediately, if correction is warranted.”

. A party “should not be heard to argue that a trial
court committed reversible error because it did not rule in
that party’s favor on a ground never presented to it.” State v.
Wideman, 

, 

 (2005).
         Having reviewed the record, we conclude that defendant did not preserve his argument. Prior to calling the jury
back, the trial court informed the prosecutor and defense
counsel of its plan to question the jury about its vote, direction, and each juror’s feelings regarding the utility of further
deliberation. At that time, defense counsel did not object to
the court’s proposed inquiry.
        Moreover, we conclude that the error defendant
claims is not plain. See Ailes v. Portland Meadows, Inc., 

, 

 (1991) (to qualify for plain error
review the error must be “obvious” and “not reasonably in
dispute”). Defendant admits that this case presents a novel

   3
     The transcript reads “course of affect,” but defendant clarifies that defense
counsel said “coercive effect.”
690                                                             State v. Lewis

issue regarding whether, in these circumstances, it is coercive for a court to actively investigate the composition of
the jury’s vote.4 Defendant fails to cite any controlling law
on that issue. We have also found none. Because any error
is not obvious or beyond dispute, we will not review defendant’s claim of error as plain error. We therefore reject it.
B.    Instructions to the Jury to Continue Deliberations
         In his second assignment of error, defendant argues
that the trial court erred by instructing the jury to keep
deliberating after it indicated it was at a deadlock. He contends that the instruction given by the trial court to continue deliberations was a deadlocked jury instruction. See
State v. Marsh, 

, 

 (1971), cert den,

 (1972) (defining a deadlocked jury instruction as
“a supplemental instruction given to encourage deadlocked
juries to reach agreement”). Defendant challenges both
the form and the factual context of the instruction as coercive. In response, the state argues, in part, that the trial
court’s instruction to continue deliberations was not a supplemental instruction, and therefore “does not implicate the
rules about how to instruct a jury to resolve its deadlock.”
State v. Garrett, 

, 

, rev den,

 (2018) (Edmonds, S. J., concurring). The state
argues further that even assuming this was a supplemental
instruction, it was not coercive. We do not reach the question whether, in these circumstances, the court’s direction
to continue to deliberate was a supplemental instruction.
Assuming without deciding that it was, we conclude that
the instruction given was not coercive.

    4
      We conclude only that there was no plain error. We note that courts outside
of Oregon are divided on whether such an inquiry is plain error. The Supreme
Court has announced a supervisory rule that applies only to federal courts and is
not binding on the states. Brasfield v. United States, 

, 

,

 (1926) (concluding that such an “inquiry itself should be regarded as
ground for reversal”); Locks v. Sumner, 703 F2d 403, 406 (9th Cir), cert den, 

 (1983) (“[W]e decline to hold that the rule in Brasfield is of constitutional
dimension.”). State courts remain split on the issue. See, e.g., Gibson v. State, 272
Ga 801, 803, 

 (2000) (adopting a totality of the circumstances
approach); State v. Rickerson, 

, 668, 

 (1981) (concluding that judicial inquiry into the numerical division of the jury is not error
per se and may be necessary in certain circumstances); Kersey v. State, 

 (Tenn 1975) (concluding that such an inquiry is reversible error).
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 (2024)                                691

         “We review for legal error whether a supplemental
instruction resulted in jury coercion and violated a defendant’s constitutional rights to a fair trial and due process.” Id.
at 864. In determining whether a supplemental instruction
was coercive, “[w]e consider both the form of the instruction
and the factual context.” Id. at 865. The form of the instruction risks coerciveness if it is directed primarily at members
of the minority, is not balanced with a reminder that no juror
is expected to abandon conscientiously held opinions, and
refers to the necessity or expense of retrial. Marsh, 

. The “most extreme” instructions are those that
inform the jury “that it must continue deliberations until it
reaches a verdict or that the trial judge will not declare a mistrial as the result of a deadlocked jury.” 

. In determining whether an instruction was coercive, a court should
also consider the following contextual factors: (1) the relative
weight of the evidence, (2) the trial judge’s knowledge of the
jury’s vote, and (3) the amount of time the jury deliberated
before and after the instruction. 

.
         In support of his assertion that the instruction was
coercive, defendant relies primarily on two arguments. First,
defendant criticizes the form of the trial court’s instructions
for not containing language cautioning each juror to hold
true to their conscience. Next, defendant focuses heavily on
the second contextual factor from Marsh—the trial judge’s
knowledge of the jury’s vote composition. The state rejects
those arguments, and asserts that the third Marsh factor—
the timing of deliberation before and after the instruction—
indicates that the instruction was not coercive.
         In this case, the form of the trial court’s instructions did not include the kind of language that Marsh considered to be coercive. “The court did not implore the jury to
reach a verdict, did not encourage any jurors to reconsider
their positions, and said nothing about avoiding the time
and expense of retrial.” Garrett, 

 (citing
Marsh, 

). Although the instruction “failed
to expressly remind jurors to adhere to their own conscientiously held opinions,” that omission is not particularly
troubling “in light of the noncoercive nature of the instruction’s content.” Id. at 866 (emphasis omitted). The trial court
692                                            State v. Lewis

merely instructed the jury to continue deliberations without
giving any further instructions. That is “a directive that is,
by its terms, innocuous.” Id. We therefore conclude that the
form of the instructions was not impermissibly coercive.
         With respect to the trial court’s knowledge of the
jury vote, “a trial court’s issuance of a supplemental instruction after being informed of the jury’s voting posture—if
that awareness by the court is itself known by the jury—can
have a coercive tendency.” Id. at 867. But we have rejected a
per se rule making it reversible error whenever a trial court
gives supplemental instructions after learning of the jury’s
vote. See State v. Hutchison, 

, 

, rev den, 

 (1996) (declining to adopt such
an absolute rule); Garrett, 

 n 8 (rejecting
a per se rule “that whenever a trial court knows about the
jury’s voting posture, the court is … required to remind
jurors not to abandon conscientiously held opinions and that
a hung jury is acceptable”). Instead, the court’s knowledge
of the vote composition is a “single circumstance” that “is
not dispositive … where none of the other circumstances
support the same conclusion.” Garrett, 

.
         In concluding that the supplemental instruction
was not coercive in Garrett, we considered the fact that the
trial court expressly reminded the jury not to inform the
court of its voting posture. 

 Here, the trial court not only
failed to remind the jury not to disclose its voting posture,
but it actively inquired into the jury’s vote. Moreover, the
court questioned each juror, in the presence of all the jurors,
whether they believed continued deliberation would be useful. Through this interrogation, the likely identity of the
holdout juror would have become apparent to the trial court,
and the jurors would have understood that the court knew
the holdout juror’s identity. Although the court’s knowledge
of the jury’s voting posture is not by itself dispositive, the
manner in which the trial court acquired that knowledge in
this case supports a determination that coercion occurred.
         We turn now to the third Marsh factor—the timing of deliberations before and after the instruction. Here,
the jury deliberated for approximately four hours before the
instruction and continued to deliberate for at least another
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 (2024)                               693

90 minutes after receiving the instruction. The amount of
time spent deliberating after the instruction was issued
suggests that the jury was not coerced. See Garrett, 

 (no coercion where the jury deliberated an
hour and a half after receiving a supplemental instruction);
cf. Hutchison, 

 (coercion resulted where the
court was aware of the vote and the jury reached a verdict
15 minutes after the deadlocked jury instruction). The third
Marsh factor favors a conclusion that the instruction did not
coerce the jury.
         We acknowledge that the factors point in different
directions. However, given the neutral form of the instruction to simply keep deliberating and the amount of time
spent deliberating before and after the instruction, we conclude that the instruction was not impermissibly coercive.
We reject defendant’s second assignment of error.
C. Denial of Defendant’s Motion for Mistrial
         In his third assignment of error, defendant argues
that the trial court erred in denying his motion for mistrial.
He argues that the cumulative coercive effect of the trial
court’s investigatory steps and its supplemental instructions
to the jury deprived defendant of his constitutional right to
a fair trial. In response, the state argues that, when defendant moved for mistrial because the jury failed to reach a
verdict by 4:55 p.m., the jury had not deliberated so long as
to warrant the grant of a mistrial.
          A denial of a motion for mistrial is reviewed for abuse
of discretion. Garrett, 

. “If the trial court’s
decision was within the range of legally correct discretionary choices and produced a permissible, legally correct outcome, then the trial court did not abuse its discretion.” State
v. Rogers, 

, 

 (2000). “Declaring a
mistrial is a drastic remedy to be avoided if possible.” State
v. Sell, 

, 

 (2023), rev den, 

 (2024) (internal quotation marks omitted). We have
previously concluded that a trial court was “not required to
declare a mistrial” where the jury had reached an apparent
impasse after five and one-half hours of deliberation in a
two-and-one-half day trial. State v. Claridy, 

,
694                                            State v. Lewis

439-40, 

 (1977) (concluding that “the court reasonably concluded that additional discussion ought to have
taken place before a mistrial was declared”).
          Here, the jury deliberated for at least 90 minutes
after the court’s instruction and for approximately six hours
in total following a trial lasting eight days. Given the timing
of deliberation in this case, we cannot conclude that the trial
court abused its discretion when it decided not to declare a
mistrial. We reject defendant’s third assignment of error.
        Affirmed.