Opinion
A165569
03-16-2022
STATE of Oregon, Plaintiff-Respondent, v. Delonte Antonio BROOKS, Defendant-Appellant.
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.
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 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 , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (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 , 309 Or. App. 615, 483 P.3d 701 (2021), and its progeny: State v. Burke , 311 Or. App. 611, 489 P.3d 1125 (2021) ; State v. Perales , 311 Or. App. 442, 489 P.3d 597 (2021) ; State v. Clark , 311 Or. App. 439, 489 P.3d 592 (2021) ; State v. Altamirano , 310 Or. App. 691, 485 P.3d 309 (2021) ; and State v. Yother , 310 Or. App. 563, 484 P.3d 1098 (2021). As we explained:
"In State v. Scott , 309 Or. App. 615, 620-21, 483 P.3d 701 (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. Id . at 617-18, 483 P.3d 701 (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."
Burke , 311 Or. App. at 612-13, 489 P.3d 1125. Accordingly, defendant's convictions are reversed, and this case is remanded for further proceedings.
Reversed and remanded.