In the preceding post, I asked how many jurors it takes to acquit of an aggravating factor. The answer is somewhere between 1 and 3. You probably assumed I was talking about Blakely factors. And it's true, I was.
But would the same apply to CDO factors that can enhance DCS/MCS/PCS to a level 8 CSL?
Keep in mind that the definition of an "enhancement fact" is very broad.
136.760 Definitions for ORS 136.765 to 136.785. As used in ORS 136.765 to 136.785: (1) "Accusatory instrument" has the meaning given that term in ORS 131.005. (2) "Enhancement fact" means a fact that is constitutionally required to be found by a jury in order to increase the sentence that may be imposed upon conviction of a crime. [2005 c.463 §1]
CDO factors pre-dated Blakely, and they are statutorily required to be proven to a jury (absent a waiver or plea). But they are also constitutionally required, not just under the federal constitution and Blakely but the state constitution as well (see the analysis in St v. Wedge, among many others.)
Consequently, CDO factors (and, for that matter, the gun minimum) fall under the definition of enhancement factors. Enhancement factors, in turn, can be defeated with no more than 3 findings against.
Let's say you're an appellate attorney, and the jury found an essential CDO factor 10-2, and they'd been instructed to that they needed 10 votes to acquit. Is that harmless error? After all, 10 people did find for the state on that CDO factor.
I would suggest that the appellate courts might adopt the same rationale for finding against harmless error that they did in Leckenby.
We expressly rejected that harmless error rationale in State v. Moses, 165 Or App. 317, 325-26, 997 P2d 251, rev den, 331 Or 334, 23 P3d 986 (2000). There, the defendant, charged with assault in the first degree, claimed that, because of intoxication, his conduct was reckless rather than intentional. The trial court declined to give an instruction on the lesser-included offense of reckless assault. We said that, because the court did not give the lesser-included offense instruction, the jury did not have a complete statement of the law that applied to the case. Id. at 326. The state contends that Moses has been superseded by State v. Horsley, 169 Or App. 438, 8 P3d 1021 (2000), rev den, 331 Or 692, 26 P3d 149 (2001). In Horsley, we held that an "acquittal first" instruction consistent with ORS 136.160(2) did not violate the defendant's constitutional rights to due process or an impartial jury. Contrary to the state's contention, however, our holding in Moses is not inconsistent with Horsley. It is true that, under ORS 136.160(2), the jury literally must go through the sequence described in Horsley of confronting and rejecting the charged offense before considering the lesser offense. We are not prepared to say, however, that, if the jury is not aware of the lesser offense, it is unlikely to have an effect on how the jury evaluates the greater offense. Thus, even in light of Horsley, under Moses the jury must still have before it the instruction on the lesser offense if the evidence would support it. State v. Leckenby, 200 Or App 684, 117 P3d 273 (2005). [Emphasis added.]
Had the jury been aware that only 1-3 votes were needed for an acquittal, would that have changed deliberations? The initial vote of 9-3 might have ended any further discussion. So I don't think anyone can say the 10-2 finding for the state rendered the error harmless.