State v. Dilallo

                                      340

Argued and submitted August 18, decision of Court of Appeals and judgment of
                 circuit court affirmed December 24, 2020


                   STATE OF OREGON,
                   Respondent on Review,
                              v.
                MICHAEL JAMES DILALLO,
                    Petitioner on Review.
          (CC 17CR81038) (CA A168222) (SC S067493)
                                  

    At defendant’s trial, the jury was instructed that it could return nonunanimous guilty verdicts. Defendant did not object. The jury found defendant guilty,
and the trial court did not poll the jury. The Court of Appeals affirmed defendant’s conviction. Held: Because the jury was not polled, it is not appropriate to
conduct plain error review of the defendant’s challenge to the jury instruction
permitting nonunanimous guilty verdicts.
    The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.



    En Banc
    On review from the Court of Appeals.*
   Nora E. Coon, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the
briefs for petitioner on review. Also on the briefs were Ernest
G. Lannet, Chief Defender, and Joshua B. Crowther, Deputy
Public Defender.
   Doug M. Petrina, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
Also on the brief were Ellen F. Rosenblum, Attorney, General,
Benjamin Gutman, Solicitor General, and Christopher A.
Perdue, Assistant Attorney General.
    Scott Sell, Thomas, Coon, Newton & Frost, Portland,
filed the brief for amicus curiae Street Roots.
  Jonathan Zunkel-deCoursey, Schwabe, Williamson &
Wyatt, P.C., Portland, filed the brief for amicus curiae
______________
    * On appeal from Lane County Circuit Court, Mustafa T. Kasubhai, Judge.

, 

 (2020).
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Immigrant and Refugee Community Organization. Also
on the brief was Jeanice Chieng, Immigrant and Refugee
Community Organization, Portland.
    Cody Hoesly, Larkins Vacura Kayser LLP, Portland,
filed the brief for amici curiae NAACP Corvallis Branch
#1118, NAACP Eugene-Springfield Branch, #1119, NAACP
Portland Chapter 1120B, and NAACP Salem-Keizer Branch
#1166.
   Timothy Wright, Tonkon Torp LLP, Portland, filed the
brief for amicus curiae Don’t Shoot Portland. Also on the
brief was J. Ashlee Albies, Albies & Stark, Portland.
   Nathan R. Morales, Perkins Coie LLP, Portland, filed the
brief for amici curiae The Coalition of Communities of Color
and Latino Network. Also on the brief was Misha Isaak.
   Aliza B. Kaplan filed the brief on behalf of amicus curiae
Criminal Justice Reform Clinic at Lewis & Clark Law
School. Also on the brief was Sarah Laidlaw.
   NELSON, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
342                                                          State v. Dilallo

           NELSON, J.
         In this case, we address whether defendant’s conviction should be reversed in light of the decision of the United
States Supreme Court in Ramos v. Louisiana, 

,

, 

 (2020), which held that only a
unanimous jury can find a defendant guilty of a serious crime.
At defendant’s trial, consistent with Article I, section 11,
of the Oregon Constitution,1 the jury was instructed that it
could convict him without reaching unanimity. Defendant
did not object to that jury instruction, and the record does
not reveal whether the jury’s guilty verdicts were unanimous. Defendant argues that, although he did not preserve
an objection to the erroneous jury instruction, we should
conclude that the trial court plainly erred and exercise our
discretion to review the error. See ORAP 5.45(1) (“No matter claimed as error will be considered on appeal unless the
claim of error was preserved in the lower court …, provided that the appellate court may, in its discretion, consider a plain error.”). Because of the absence of a jury poll,
we conclude that it is not appropriate to consider defendant’s
unpreserved assignment of error, and we therefore affirm
defendant’s judgment of conviction.
         Defendant was charged with delivery of methamphetamine and conspiracy to commit delivery of methamphetamine. He entered a plea of not guilty. Both charges
were tried to a 12-person jury in 2018, before the Supreme
Court’s decision in Ramos. The trial court instructed the
jury that “ten or more jurors must agree on your verdict,”
including on whether the state had proved a subcategory
factor. Defendant did not raise an objection to that instruction at any point before or during the trial. After the jury
began deliberating, the trial court asked defendant whether
he had formal objections to any of the jury instructions.
Defendant stated that he had none.
         After deliberating, the jury found defendant guilty
of both charged offenses. The court transcript reflects that

    1
      Article I, section 11, of the Oregon Constitution provides that, “in the circuit court[,] ten members of the jury may render a verdict of guilty or not guilty,
save and except a verdict of guilty of first degree murder, which shall be found
only by a unanimous verdict, and not otherwise[.]”
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the trial court then inquired of the jury, “Do any of you disagree with the verdict that I have read?” The transcript does
not reflect any response to the court’s question. Defendant
did not object to the verdicts, and he did not request that
the jury be polled. Those verdicts merged into a conviction
for delivery of methamphetamine, and defendant was sentenced to 90 months in prison.
         Defendant appealed. He assigned error to the trial
court’s jury instructions permitting the jury to return
nonunanimous guilty verdicts.2 Defendant acknowledged
that he had not preserved that assignment of error in the
trial court, but he asked the Court of Appeals to exercise
its discretion to consider the assignment of error as plain
error under ORAP 5.45(1). In a decision issued before the
Supreme Court’s decision in Ramos, the Court of Appeals
affirmed defendant’s conviction without opinion. State v.
Dilallo, 

, 

 (2020).
         Defendant filed a petition for review in this court,
again raising his challenge to the jury instruction permitting nonunanimous guilty verdicts. We initially denied the
petition for review, but we subsequently granted defendant’s
petition for reconsideration, allowing review limited to the
question of the appropriate disposition of this case in light of
the Supreme Court’s decision in Ramos.
         As we explained in our decision in State v. Flores
Ramos, also issued today, the trial court erred in instructing
the jury that it could convict defendant by a nonunanimous
vote. 

, 

 (2020) (“We conclude that
the Sixth Amendment is violated when a trial court tells
the jury that it can convict a defendant of a serious offense
without being unanimous.”). The issue that remains to be
decided in this case is not whether a constitutional error
occurred in defendant’s trial, but whether it is appropriate
to review defendant’s assignment of error, when defendant
did not object to the erroneous instruction in the trial court,
and the record does not reveal whether the jury’s verdicts
were unanimous.
    2
      Defendant also assigned error to the trial court’s denial of a motion to suppress, but that issue falls outside of the scope of the question that we allowed
review to address.
344                                               State v. Dilallo

       The fact that defendant did not preserve his assignment of error limits the availability of appellate review.
ORAP 5.45(1) provides:
   “No matter claimed as error will be considered on appeal
   unless the claim of error was preserved in the lower court
   and is assigned as error in the opening brief in accordance
   with this rule, provided that the appellate court may, in its
   discretion, consider a plain error.”
The plain error inquiry consists of two stages. At the first
stage, the reviewing court must consider whether the error
is plain. “For an error to be plain error, it must be an error
of law, obvious and not reasonably in dispute, and apparent
on the record without requiring the court to choose among
competing inferences.” State v. Vanornum, 

,

 (2013). “If all the requirements of the first step
are satisfied, then the court proceeds to the second step,
where it must decide whether to ‘exercise its discretion to
consider or not to consider the error[.]’ ” State v. Gornick,

, 

 (2006) (quoting Ailes v.
Portland Meadows, Inc., 

, 

 (1991)
(alteration in Gornick)).
          In this case, the state does not dispute that the first
step of the plain error inquiry is satisfied, and both parties
focus their arguments on whether this court should exercise its discretion to conduct plain error review. We assume,
without deciding, that the trial court plainly erred when
it instructed the jury that it could return nonunanimous
guilty verdicts and turn to the question of whether it would
be appropriate to exercise our discretion to consider the
unpreserved assignment of error.
        In Ailes, we emphasized that “[a] court’s decision
to recognize unpreserved or unraised error in this manner should be made with utmost caution.” 

.
That caution is based on a recognition that the preservation
requirement serves important practical purposes in our system of appellate review and that reaching out to consider
unpreserved errors may lead to inefficient or unfair results.
Preservation promotes efficiency by giving the trial court
an opportunity “to consider the legal contention or to correct an error already made.” Shields v. Campbell, 277 Or
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71, 77, 

 (1977). The preservation requirement
also “ensures fairness to an opposing party, by permitting
the opposing party to respond to a contention and by otherwise not taking the opposing party by surprise.” Peeples
v. Lampert, 

, 

 (2008). And, of
particular importance to this case, “preservation fosters
full development of the record, which aids the trial court in
making a decision and the appellate court in reviewing it.”

.
        We articulated, in Ailes, several factors to consider
in making the discretionary decision to review a plain error.
Those factors take into account the practical importance of
the preservation requirement, as well as other important
considerations that may weigh in the balance:
   “the competing interests of the parties; the nature of the
   case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention;
   and whether the policies behind the general rule requiring preservation of error have been served in the case in
   another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an
   opportunity to correct any error.”
Ailes, 

 n 6.
         In State v. Ulery, 

, 

 (2020),
we discussed those factors to explain why we considered
it appropriate to consider an unpreserved challenge to the
trial court’s receipt of nonunanimous verdicts. We first
addressed whether the purposes of preservation had been
served, stating that, “given the trial court’s inability to correct the error under controlling law, the fact that it was not
given an opportunity to do so does not weigh heavily.” 

. We also noted that the error was a grave one, emphasizing that the defendant had been convicted over the votes
of jurors who believed “that the state had failed to prove its
case against defendant beyond a reasonable doubt.” 

 We
recognized that “the expense and difficulty associated with
a retrial” weighed against reviewing the error, but we concluded that the balance weighed in the defendant’s favor. 

         In this case, those factors weigh differently. Our
decision in Ulery was based on a recognition that the failure
346                                              State v. Dilallo

to object in the trial court did not have a practical effect on
the proceedings in that court. Because the jury had been
polled, the pertinent record had been developed as fully as
it could have been. Moreover, the trial court was bound by
controlling law to accept the nonunanimous verdicts, and
we did not identify any way in which the state had been
prejudiced by the defendant’s failure to object.
          This record, by contrast, lacks any indication of
whether the jury’s verdicts were unanimous. A jury poll
could have been requested by either party, in which case
the trial court would have been obligated to perform one.
See ORCP 59 G(3) (“When the verdict is given, and before it
is filed, the jury may be polled on the request of a party, for
which purpose each juror shall be asked whether the verdict is the juror’s verdict.”); ORS 136.330(1) (providing that
ORCP 59 G(3) applies to criminal cases); Brooks v. Gladden,

, 

 (1961) (“Although the statute
is cast in language indicating that the polling of the jury is
discretionary with the trial judge, it is firmly established by
our previous decisions that the right to have the jury polled
is absolute.”). The trial court directed a question to the jury,
the answer to which does not appear in the record, but neither party requested a formal poll.
         Defendant argues that the deficiency in the record
does not matter and that, if it does, it should be attributed to
the state, not to his failure to object. Defendant’s first line of
argument is that it does not make a difference whether the
jury was polled because a nonunanimous jury instruction is
reversible error regardless of whether the jury’s verdict is
unanimous. He argues that a nonunanimous jury instruction is a structural error that is not susceptible to a harmlessness analysis. In the alternative, he argues that, even if
a jury instruction permitting nonunanimous verdicts is subject to a harmlessness analysis, a jury poll revealing that
the jury was unanimous would be insufficient to show that
the error was harmless.
        Those arguments are identical to those that we
rejected in Flores Ramos. In that decision, we held that
a nonunanimous jury instruction is not structural error
and that a jury poll demonstrating that the verdict was
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unanimous is sufficient to show that the instructional
error was harmless beyond a reasonable doubt. 

. In Flores Ramos, we therefore affirmed the defendant’s unanimous convictions but reversed the sole conviction based on a nonunanimous verdict. 

. Flores
Ramos establishes that the information that would have
been revealed by a jury poll would not only be important, it
would likely be dispositive.
         Defendant next argues that it was the state’s obligation to request a jury poll. In making that argument,
defendant relies on the harmlessness standard for federal
constitutional error set out in Chapman v. California, 

, 

, 

 (1967), which requires
“the beneficiary of a constitutional error to prove beyond a
reasonable doubt that the error complained of did not contribute to the verdict obtained.” 

. Defendant asserts
that, even when a defendant has not preserved an assignment of error, “[t]he burden remains on the state to prove
beyond a reasonable doubt that the error was harmless.”
         Defendant may be right that the state would be
unable to show that the instructional error that occurred in
this case was harmless beyond a reasonable doubt, if we did
exercise our discretion to review the error. But that does not
mean that plain error review is appropriate; rather, it militates against a conclusion that “the policies behind the general rule requiring preservation of error have been served in
the case,” Ailes, 

 n 6. The fact that the opposing party may need to take additional steps to develop the
record in order to address an assignment of error is one of
the reasons that a timely objection is required. See Peeples,

 (so explaining). Here, defendant did not
put the state or the court on notice of his objection to the
jury instruction, so the absence of a jury poll is fairly attributable to defendant, even if the state would otherwise bear
the burden of establishing harmlessness on appeal. In this
case, therefore, an important purpose of the preservation
requirement was not served, because the record was not
fully developed.
        That lack of record development also affects our
evaluation of the gravity of the error. In Ulery, we knew that
348                                           State v. Dilallo

the jury’s verdicts had been nonunanimous, which is why we
concluded that the error was a grave one. 

. In
this case, we do not know whether the jury reached unanimous verdicts. The consequent uncertainty over whether
the erroneous jury instruction affected the result of the
trial is directly linked to defendant’s failure to object. As
the state notes, reversal of defendant’s conviction would lead
to an anomaly: many defendants in cases where the jury
was polled will have their convictions affirmed if the poll
revealed that the verdicts were unanimous, but defendant
would be guaranteed a reversal, regardless of whether the
jury reached a unanimous verdict, because of a deficiency in
the record that could have been avoided if he had objected.
As a result, defendant’s failure to comply with the preservation requirement would not only be excused, it would be
rewarded.
         Defendant responds to that concern by arguing
that there is no indication that he withheld an objection to
the nonunanimous jury instruction for strategic reasons.
He argues that because, after Ramos, juries will not be
instructed that they can return nonunanimous guilty verdicts, this situation will not arise again, so any incentive
not to object to those instructions that would be created by a
ruling in his favor will not matter.
         But the effect of judicial decisions cannot be cabined so easily; rewarding a failure to preserve an assignment of error in this case will inevitably generate expectations in analogous cases. And the question before us is
not just how future cases will be affected but “whether, in
the context of an individual case, reaching the unpreserved
error would advance the ends of justice.” State v. Ramirez,

, 

 (2007), opinion amended
on recons, 

, 

 (2008). In this case,
allowing defendant to benefit from his failure to preserve
an objection, and requiring the state to undergo a retrial
that could have been avoided had the record in this case
been fully developed, would be contrary to the basic goal of
“procedural fairness to the parties and to the trial court”
that motivates the preservation requirement. Peeples,

.
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         For those reasons, we conclude that it is not appropriate to exercise our discretion to review defendant’s
unpreserved assignment of error as plain error. We therefore affirm defendant’s conviction.
        The decision of the Court of Appeals and the judgment of the circuit court are affirmed.