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explaining that, "[o]rdinarily, we will consider issues likely to arise on remand when the trial court * * * has determined a question of law that will still be at issue after the case is remanded"
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A163866
07-08-2020
STATE of Oregon, Plaintiff-Respondent, v. William Martin SAVAGE, Defendant-Appellant.
Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Rolf Moan, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Rolf Moan, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and James, Judge, and Aoyagi, Judge.
James, J., vice Hadlock, J. pro tempore.
JAMES, J. In 2014 defendant was tried for a residential break-in where property was stolen. The jury acquitted him of burglary and robbery but convicted him of aggravated first-degree theft. Defendant appealed the theft conviction and prevailed. Before retrial in 2016 for theft, defendant moved, in limine , to exclude evidence related to, and suggestive of, the 2014 burglary and robbery charges against defendant in proving the theft count, arguing that its introduction violated the Oregon Evidence Code (OEC) in multiple respects, primarily that such evidence constituted impermissible prior bad acts. The court excluded the robbery evidence but allowed the burglary evidence, and defendant was ultimately convicted of aggravated first-degree theft.
Defendant appeals from the most recent judgment of conviction, raising two assignments of error and two supplemental assignments of error. In defendant's second supplemental assignment of error, he challenges his conviction by less than a unanimous verdict and that the court accepted the jury's 10 to 2 guilty verdict. In Ramos v. Louisiana , ––– U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d. 583 (2020), the Court concluded that nonunanimous jury verdicts violated the Sixth Amendment. In State v. Ulery , 366 Or. 500, 504, 464 P.3d 1123 (2020), the Oregon Supreme Court concluded that a trial court's acceptance of a nonunanimous verdict constituted plain error and, in light of the gravity of the error, exercised discretion to correct that error, considering that failure to raise the issue in the trial court did not weigh heavily against correction, as the trial court would not have been able to correct the error under controlling law.
The state concedes that the trial court's acceptance of a nonunanimous verdict in this case constitutes plain error. For the reasons set forth in Ulery , we exercise our discretion to correct the error in this case. That disposition obviates our need to address defendant's first supplemental assignment of error or his second assignment of error, raised in the opening brief.
However, defendant has filed a memorandum of additional authorities requesting that, despite the state's concession, we address his first assignment of error because the legal issue is likely to arise on remand. Ordinarily, we will consider issues likely to arise on remand when the trial court or agency has determined a question of law that will still be at issue after the case is remanded. See, e.g. , Westwood Construction Co. v. Hallmark Inns , 182 Or. App. 624, 50 P.3d 238, rev. den. , 335 Or. 42, 57 P.3d 581 (2002) (addressing ruling concerning the availability of certain type of attorney fees under ORS 87.060 as likely to arise on remand). Defendant's first assignment of error might, arguably, fall under that ambit. Notwithstanding that possibility, however, we do not reach the merits of defendant's first assignment of error because, as we explain below, we conclude that it is unpreserved.
In defendant's first assignment of error he challenges the trial court's denial of his motion in limine , advancing on appeal a constitutional double jeopardy argument concerning issue preclusion—specifically, that double jeopardy principles prevent the state from relying on facts, and evidence, related to a previous acquittal, relying primarily on Ashe v. Swenson , 397 U.S. 436, 90 S. Ct. 1189, 25 L.Ed.2d 469 (1970), and Oregon cases that have adopted Ashe ’s reasoning.
The state does not dispute preservation in its briefing in this case. Nevertheless, we have an "independent obligation to determine whether an argument advanced on appeal was preserved at trial." Vokoun v. City of Lake Oswego , 189 Or. App. 499, 508, 76 P.3d 677 (2003), rev. den. , 336 Or. 406, 84 P.3d 1082 (2004) (citing State v. Wyatt , 331 Or. 335, 344-46, 15 P.3d 22 (2000) ).
In Ashe , the case principally relied upon by defendant on appeal, the United States Supreme Court held that double jeopardy also encompassed certain principles of issue preclusion. 397 U.S. at 436, 90 S.Ct. 1189. Ashe was first applied in Oregon in State v. Mozorosky , 277 Or. 493, 561 P.2d 588 (1977). There, the Oregon Supreme Court emphasized the analytical framework set forth in Ashe :
"Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational
jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ "
Id. at 498, 561 P.2d 588 (quoting Ashe , 397 U.S. at 444, 90 S.Ct. 1189 ) (internal citations omitted).
For purposes of assessing preservation then, we must ask whether the trial court here was ever asked to undertake the record review contemplated by Ashe , or asked to assess the prior trial record to determine if "it would have been irrational" for the jury in the first trial to acquit without finding in favor of defendant on a fact essential to a conviction in the new trial. Currier v. Virginia , ––– U.S. ––––, 138 S. Ct. 2144, 2150, 201 L. Ed. 2d. 650 (2018) (discussing the Ashe inquiry). We conclude that it was not.
Upon review of the trial record here, it is apparent that before the trial court, defendant was making an evidentiary exclusion argument, not an argument seeking suppression of evidence based on a constitutional right. That is further reinforced when we view that argument in the context of defendant's written motion in limine . Nowhere in that motion does defendant cite the federal or state constitutions, Ashe , or any Oregon case adopting Ashe , or otherwise advance any argument that constitutional double jeopardy principles prohibit the admission of certain evidence.
At least one court has indicated that issue preclusion arguments based in double jeopardy might be properly categorized as a motion to suppress. See, e.g. , United States v. Mock , 604 F.2d 336, 338 (5th Cir. 1979).
While defendant did, in one sentence in oral argument before the trial court, reference double jeopardy, he did not orally inform the court or opposing counsel of Ashe , Ashe ’s requirement for a record review, Ashe ’s analytical test, or how double jeopardy would change the analysis in any way from the OEC prior bad acts cases upon which he relied. Accordingly, we reject defendant's first assignment of error on preservation grounds. We reverse defendant's conviction based on a nonunanimous verdict.
Reversed and remanded.