State v. Ciraulo

                                      350

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.
                   PETER ANTHONY CIRAULO,
                        Petitioner on Review.
                    (CC 17CR72865, 18CR39718)
                  (CA A168211 (Control), A168227)
                            (SC S067569)
                                  

478 P3d 502

    At defendant’s trial, and over his objection, the jury was instructed that it
could return nonunanimous guilty verdicts. The jury returned guilty verdicts on
three counts, and a poll of the jury indicated that all three verdicts were unani-
mous. The Court of Appeals affirmed defendant’s convictions. Held: (1) The record
establishes that all of the jury’s verdicts were unanimous; (2) under State v.
Flores Ramos, 

367 Or 292

, 

478 P3d 515

 (2020), the instructional error is harmless
beyond a reasonable doubt as to the convictions based on unanimous 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.*
   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, and Benjamin Gutman, Solicitor General.
    Scott Sell, Thomas, Coon, Newton & Frost, Portland,
filed the brief for amicus curiae Street Roots.
______________
   * On appeal from Douglas County Circuit Court, Kathleen E. Johnson,
Judge. 

301 Or App 849

, 

459 P3d 960

 (2020).
Cite as 

367 Or 350

 (2020)                                351

   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.
   DUNCAN, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
352                                           State v. Ciraulo

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

590 US ___

, 

140 S Ct 1390

, 

206 L Ed 2d 583

(2020), which held that the Sixth Amendment requires a
jury to be unanimous in order to convict a criminal defen-
dant of a serious offense.
         Defendant was charged with first-degree forgery,
possession of a forged instrument, and third-degree theft.
Defendant was tried before a 12-person jury, in a trial that
occurred before the Supreme Court’s decision in Ramos.
Before trial, defendant requested that the jury be instructed
that it needed to be unanimous in order to return a con-
viction. The trial court denied defendant’s request, stating:
“[U]ntil the Court of Appeals tells me otherwise, I’ll continue
to comply with the law that requires the ten-person verdict
in felony cases.” The jury was instructed that 10 votes were
sufficient for a guilty verdict. After deliberation, the jury
found defendant guilty of all three counts. The jury’s ver-
dict form listed each count, with the words “Not Guilty” and
“Guilty” on the lines below each count. Below each of the
three counts, a juror had written the number “0” next to the
words “Not Guilty” and the number “12” next to the word
“Guilty.” After receiving the verdict form, the trial court
asked the presiding juror whether the jury’s decision had
been unanimous, and the presiding juror confirmed that it
had been. The trial court asked defendant whether there
was any need to poll the jury further, and defense counsel
responded that there was not.
        Defendant appealed, assigning error to the non-
unanimous jury instruction, along with some other issues
not relevant on review. In a decision issued before the
Supreme Court’s decision in Ramos, the Court of Appeals
affirmed defendant’s convictions. State v. Ciraulo, 

301 Or App 849

, 

459 P3d 960

 (2020).
        Defendant filed a petition for review which, after
the Supreme Court decided Ramos, we allowed. Defendant
argues that Ramos requires that all of his convictions be
reversed. He first contends that the nonunanimous jury
instruction was a structural error, which always requires
Cite as 

367 Or 350

 (2020)                                                  353

reversal. In the alternative, he argues that, even if the error
is subject to a harmlessness analysis, the poll of the jury is
insufficient to establish that the jury instruction was harm-
less beyond a reasonable doubt. See Chapman v. California,

386 US 18, 24

, 

87 S Ct 824

, 

17 L Ed 2d 705

 (1967) (estab-
lishing the “harmless beyond a reasonable doubt” harmless
error standard for federal constitutional violations).
          The state argues that the instructional error is
harmless with respect to all of defendant’s convictions,
because each of those convictions is based on a unanimous
verdict.1
         Our decision in State v. Flores Ramos, 

367 Or 292

,

478 P3d 515

 (2020), also issued today, resolves nearly all of
the questions in this case. In Flores Ramos, the defendant
made identical arguments that the jury instruction permit-
ting nonunanimous verdicts was structural error, that it
could not be held harmless even if it were subject to a harm-
lessness analysis, and that the jury poll was insufficient to
demonstrate that any of the jury’s verdicts were, in fact,
unanimous. In Flores Ramos, we held that instructing the
jury that it could return a nonunanimous guilty verdict was
not a structural error. 

367 Or at 319

. We also held that, where
the jury poll revealed that the jury unanimously found the
defendant guilty of the charged offense, the nonunanimous
jury instruction could be held harmless beyond a reasonable
doubt. 

Id. at 320

. We also rejected the defendant’s argument
that a jury poll could not reliably show that the jury’s ver-
dict was unanimous. 

Id. at 324

.
        For the same reasons as in Flores Ramos, we reject
defendant’s identical arguments. However, defendant does,
albeit cursorily, offer one additional argument: that the
record does not demonstrate that the jury’s verdict was

    1
      One of defendant’s convictions is for third-degree theft, a Class C mis-
demeanor punishable by a maximum of 30 days in jail. ORS 164.043(2); ORS
161.615(3). Neither party has addressed whether third-degree theft is a petty
offense or whether any constitutional provision requires a jury verdict finding
the defendant guilty of a petty offense to be unanimous. See Lewis v. United
States, 

518 US 322, 325-26

, 

116 S Ct 2163

, 

135 L Ed 2d 590

 (1996) (holding that
the Sixth Amendment’s jury trial right does not apply to petty offenses). Because
we would affirm defendant’s third-degree theft conviction even if it were not a
petty offense, we do not address those questions either.
354                                           State v. Ciraulo

unanimous, arguing that, “[a]t most, it shows that one juror
thought that they were” and suggesting that the presid-
ing juror may not have known what the word “unanimous”
meant. We rejected a similar argument in Flores Ramos,
stating that
  “we are skeptical that jurors would not understand the
  word ‘unanimous’ or that jurors, however polled, would
  not respond honestly. See United States v. Poole, 

545 F3d 916, 921

 (10th Cir 2008) (rejecting an argument that jurors
  would not have understood the trial court’s use of the word
  ‘nullity’).”

367 Or at 324

. This record contains multiple indications
that the jury’s verdicts were unanimous—including writ-
ten notations that the jury reached 12-0 verdicts—and any
other conclusion would be entirely speculative.
         As a result, we conclude that, although the jury
instruction permitting nonunanimous verdicts was errone-
ous, the error was harmless beyond a reasonable doubt as to
all of the verdicts in this case.
        The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.