State v. Chorney-Phillips

                                      355

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.
          ZACKERY JOSHUA CHORNEY-PHILLIPS,
                    Petitioner on Review.
          (CC 17CR81310) (CA A167674) (SC S067557)
                                   

    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, during a jury poll, all jurors agreed that it was their verdict. The Court
of Appeals affirmed defendant’s conviction. Held: (1) In light of State v. Flores
Ramos, 

, 

 (2020), defendant’s challenge came down to an
argument that the jury poll did not show that the verdict was unanimous; (2) for
reasons similar to those given in State v. Dilallo, 

, 

 (2020),
plain error review was inappropriate because defendant told the trial court that
he was satisfied with the jury poll, impeding further development of the record.
    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.*
   Joshua B. Crowther, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the briefs for petitioner on review. Also on the briefs was
Ernest G. Lannet, Chief Defender.
   Christopher A. Perdue, 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 Doug M.
Petrina, Assistant Attorney General.
    Scott Sell, Thomas, Coon, Newton & Frost, Portland,
filed the brief for amicus curiae Street Roots.
______________
   * On appeal from Polk County Circuit Court, Norman R. Hill, Judge. 

, 

 (2020).
356                                State v. Chorney-Phillips

   Jonathan Zunkel-deCoursey, Schwabe, Williamson &
Wyatt, P.C., Portland, filed the brief for amicus curiae
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.
   FLYNN, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
Cite as 

 (2020)                                  357

        FLYNN, J.
         In this case, we again address the application of
the United States Supreme Court’s decision in Ramos v.
Louisiana, 

, 

, 

(2020), which held that the Sixth Amendment requires a
jury to be unanimous in order to convict a defendant of a
serious offense.
         Defendant was charged with first- and seconddegree custodial interference and was found guilty on both
counts by a 12-person jury. In the trial, which occurred before
the Supreme Court’s decision in Ramos, the court instructed
the jury that “[t]en or more jurors must agree on your verdict,” and defendant did not object to that jury instruction.
After the jury returned its verdict, on a form that contains
no indication of how individual jurors voted, the trial court
polled the jury at defendant’s request. The trial court first
informed the jurors that it would call on them one at a time,
by seat number and explained, “I just want you to let me
know if this was your verdict.” The court then called the
juror seat numbers one at a time, and each juror responded,
“Yes.” After the twelfth juror responded, the court asked
defense counsel if he was satisfied, and he responded that
he was. For purposes of sentencing, the court merged
the jury’s two guilty verdicts into one conviction for firstdegree custodial interference and then entered judgment
accordingly.
        Defendant appealed, assigning error to the nonunanimous jury instruction, as well as to other rulings that
are not at issue on review. In a decision issued before the
Supreme Court’s decision in Ramos, the Court of Appeals
affirmed defendant’s conviction without opinion. State v.
Chorney-Phillips, 

, 

 (2020).
         Defendant filed a petition for review, which this
court allowed after the United States Supreme Court decided
Ramos. Defendant argues that Ramos requires that his conviction be reversed. He first contends that the nonunanimous jury instruction was a structural error, which always
requires reversal. In the alternative, he argues that the erroneous instruction requires reversal under the federal harmless error standard because the poll of the jury is insufficient
358                                 State v. Chorney-Phillips

to establish that the jury instruction was harmless beyond a
reasonable doubt. See Chapman v. California, 

,

, 

 (1967) (establishing the “harmless beyond a reasonable doubt” harmless error standard for
federal constitutional violations). Acknowledging that his
assignment of error was unpreserved, defendant also argues
that his challenge to the nonunanimous jury instruction
qualifies for plain error review and that this court should
reverse defendant’s convictions regardless of whether he
objected to the jury instruction in the trial court.
        The state does not dispute that the instruction
was given in error, but it argues that the error is harmless
because each of defendant’s convictions is based on a unanimous verdict. The state also argues that defendant’s acceptance of the jury poll in the trial court prevents him from
challenging the adequacy of the jury poll on appeal.
         Nearly all of the questions that this case raises
are resolved by our decision in State v. Flores Ramos, 

, 

 (2020), also issued today. In Flores
Ramos, the defendant made identical arguments that a jury
instruction permitting nonunanimous verdicts was structural error, that the error could not be held harmless error
even if it were subject to a harmlessness analysis, and that
the jury poll was insufficient to demonstrate that any of the
jury’s verdicts were, in fact, unanimous. We rejected each of
those arguments. First, Flores Ramos held that instructing
the jury that it could return a nonunanimous guilty verdict
is not a structural error. 367 Or at 319. Next, Flores Ramos
held that, where the jury poll reveals that the jury unanimously found the defendant guilty of the charged offense,
the nonunanimous jury instruction can be held harmless
beyond a reasonable doubt. Id. at 320. Finally, Flores Ramos
rejected the defendant’s argument that a jury poll could not
reliably show that the jury’s verdict was unanimous. Id. at
324. As a result, we held that the instructional error was
harmless as to the convictions that were clearly based on
unanimous verdicts.
         This case differs from Flores Ramos in two pertinent
ways. First, in this case, defendant did not preserve an objection to the jury instruction that permitted nonunanimous
Cite as 

 (2020)                                    359

guilty verdicts. As a result, defendant’s assignment of error
is reviewable only for plain 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.”). Second, though defendant’s arguments
are largely identical to those advanced in Flores Ramos,
defendant also makes a narrower argument that the jury
poll in this case was insufficient to show that the jury was,
in fact, unanimous. Ultimately, we decline to reach that second argument.
          Although the nonunanimous jury instruction given
by the trial court may qualify as a plain error, we decline
to exercise our discretion to review that error, for reasons
similar to those given in our decision in State v. Dilallo, 

, 

 (2020). In light of our decision in Flores
Ramos, defendant’s challenge to his conviction comes down
to his argument that the jury poll was insufficient to demonstrate a unanimous verdict. But defendant told the trial
court that he was satisfied with the jury poll. As a result,
neither the state nor the trial court was alerted to the possible need to further develop the record, and “an important
purpose of the preservation requirement was not served[.]”
Dilallo, 

. Any “consequent uncertainty over
whether the erroneous jury instruction affected the result
of the trial is directly linked to defendant’s failure to object.”

. Thus, addressing defendant’s assignment of error,
which now turns entirely on the sufficiency of the record to
demonstrate jury unanimity, “would be contrary to the basic
goal of ‘procedural fairness to the parties and to the trial
court’ that motivates the preservation requirement.” 

 at
348 (quoting Peeples v. Lampert, 

, 

 (2008)).
         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.