Argued and submitted June 4, 2013
On review from the Court of Appeals CC 200818082A; CA A142341. [*]
Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender.
Patrick M. Ebbett, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Mary H. Williams, Deputy Attorney General, and Anna M. Joyce, Solicitor General.
Bridget Donegan, Larkins Vacura LLP, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.
Defendant appealed his conviction for resisting arrest, ORS 162.315, raising, among other issues, two claims that the trial court erred in instructing the jury. The Court of Appeals concluded that it was barred from reviewing those claims by ORCP 59 H, which states that "a party may not obtain review on appeal" of an asserted error in giving or failing to give an instruction unless the party objected in a specified manner. We allowed defendant's petition for review to consider whether ORCP 59 H applies to and controls appellate court review of claims of instructional error, including claims of "plain error." We hold that it does not. We reverse and remand to the Court of Appeals for further proceedings.
The relevant facts are primarily procedural. Police arrested defendant for disorderly conduct during an anti-pesticide demonstration. In the course of the arrest, defendant struggled and failed to follow police officers' instructions while they forcefully moved him across a street in an "arm bar" hold, pushed him against a cement pillar and then to the ground, and repeatedly tased him. Defendant later was charged with resisting arrest, in addition to the original disorderly conduct charge, and went to trial on both charges. At trial, defendant raised a defense of self-defense to the resisting arrest charge.
At the close of evidence, the trial court proposed a set of jury instructions to the parties, including Uniform Criminal Jury Instruction (UCrJI) 1227, which describes when a person may use physical force for self-defense in response to an officer's use of unreasonable force in making an arrest. The trial court asked defendant and the state if they had any objections to the proposed instructions. Neither party objected to any of the trial court's proposed instructions, including UCrJI 1227. Defendant did, however, request that the court give the following special instruction defining "unreasonable physical force" for purposes of his self-defense claim:
"When analyzing a claim of Self-Defense to the charge of Resisting Arrest, the jury shall find that 'unreasonable physical force' by the officer[s] making the arrest exists if the defendant reasonably believed that the officers' use of force was disproportionate in the circumstances.
"If the jury finds that the defendant reasonably believed that the officers' use of force was disproportionate in the circumstances, the jury must then decide whether the defendant reasonably believed that his own use of force in response was necessary in the circumstances."
The trial court declined to give the requested instruction, stating that the uniform jury instruction was "sufficient." The court gave the jury the set of instructions that it had proposed, including UCrJI 1227. After the jury was instructed, defendant formally excepted to the trial court's refusal to give his requested special instruction, but he did not except (formally or otherwise) to the trial court having given UCrJI 1227. The jury found defendant guilty on both the disorderly conduct charge and the resisting arrest charge, and defendant appealed.
Shortly after defendant initiated his appeal, this court decided State v. Oliphant, 347 Or 175, 218 P.3d 1281 (2009), which dealt with a number of uniform jury instructions, including UCrJI 1227, pertaining to the defense of self-defense in the context of a prosecution for resisting arrest. Oliphant held, among other things, that UCrJI 1227 was not a correct statement of an arrestee's right of self-defense. In particular, Oliphant faulted the instruction because it focused on whether the police officer reasonably believed that the degree of force he or she used was necessary, when an arrestee's right of self-defense depends instead on whether the arrestee reasonably believes that the officer is using an unlawful degree of force to make the arrest. 347 Or at 193-94.
Relying on Oliphant, defendant in this case argued on appeal that the trial court had erred in two ways: (1) in refusing to give his requested special instruction (which focused on whether defendant reasonably believed that unlawful force was being used against him at the relevant time); and (2) in giving the uniform instruction, UCrJI 1227. With regard to that second claim of error, defendant acknowledged that he had not objected to the uniform instruction. But he urged that, in light of Oliphant, giving that instruction was "plain error, " and he asked the Court of Appeals to exercise its discretion to correct that error. The state argued against plain error review of the UCrJI 1227 claim and responded to defendant's other claim of instructional error on the merits.
Notably, the state did not raise ORCP 59 H as a bar to appellate review of either of defendant's claims. The Court of Appeals raised that rule on its own initiative, noting its independent duty to determine whether appellants have adequately raised and preserved their present claims before the trial court. State v. Vanornum, 250 Or.App. 693, 697, 282 P.3d 908 (2012). The court began by observing that ORCP 59 H(1) provides that a party "may not obtain review on appeal of an asserted [instructional] error * * * unless the party who seeks to appeal identified the asserted error to the trial court." Id. at 697. The court further observed that ORCP 59 H, although otherwise a rule of civil procedure only, applies to criminal actions as a result of ORS 136.330(2). Id. The Court of Appeals concluded that defendant's claim regarding UCrJI 1227 was not reviewable, even under the plain error doctrine, because defendant had not raised the claim at trial as ORCP 59 H(1) requires. Id. at 699. As to defendant's claim that the trial court had erred in refusing to give his requested instruction on self-defense, the court concluded that defendant had failed to identify the asserted error to the trial court "with particularity, " as ORCP 59 H(2) requires, thus precluding appellate review of that claim of error as well. Id. at 698. Accordingly, the Court of Appeals affirmed defendant's conviction for resisting arrest without reaching the merits of his claims.
Before this court, defendant argues that ORCP 59 H did not preclude the Court of Appeals from reviewing the merits of his claims of instructional error. Defendant contends that neither the Council on Court Procedures, which drafted ORCP 59 H, nor the legislature, which enacted ORS 136.330(2) and, thus, made the rule applicable to "criminal actions, " intended to dictate to appellate courts what claims of error they may and may not review. Rather, in defendant's view, the rule was intended to describe to litigants and trial courts what must be done to preserve instructional error for review (or new trial motions). It follows, defendant argues, that ORCP 59 H does not preclude plain error review and does not bind appellate courts to any stricter preservation standards than they otherwise would apply under their own authority. Defendant concludes, finally, that, under the preservation and plain error standards that this court has developed, his claims of instructional error in this case are reviewable.
As the parties recognize, the initial issue presented by this case is one of interpretation -- whether ORCP 59 H dictates preservation standards for instructional error to appellate courts, or instead, instructs litigants and trial courts on the procedure in the trial court for ensuring preservation of such claims. Because ORCP 59 H was promulgated by the Council on Court Procedures and accepted by the legislature without amendment, the intent of the council governs the interpretation of the rule. A.G. v. Guitron, 351 Or 465, 479, 268 P.3d 589 (2011); Waddill v. Anchor Hocking, Inc., 330 Or 376, 382 n 2, 8 P.3d 200 (2000), adh'd to on recons, 331 Or 595, 18 P.3d 1096 (2001). To discern that intent, we use an analytical process that parallels the one we use to interpret statutes -- that is, we examine text, context, and, if helpful, legislative history. Guitron, 351 Or at 479.
ORCP 59 H is part of a rule that deals with instructions to and deliberations by juries. As relevant here, it provides:
"(1) * * * A party may not obtain review on appeal of an asserted error by a trial court in submitting or refusing to submit a statement of issues to a jury pursuant to subsection C (2) of this rule or in giving or refusing to give an instruction to a jury unless the party who seeks to appeal identified the asserted error to the trial court and made a notation of exception immediately after the court instructed the jury.
"(2) * * * A party shall state with particularity any point of exception to the trial judge. A party shall make a notation of exception either orally on the record or in a writing filed with the court."
The initial question that this case raises -- whether ORCP 59 H controls appellate court review of claims of instructional error -- arises because subsection (1) declares that "a party may not obtain review on appeal" of a trial court's asserted error in giving or refusing to give a jury instruction unless the party identified the asserted error to the trial court and made a timely notation of exception.
The state contends that the phrase "a party may not obtain review on appeal" can be read to mean only one thing -- that an appellate court is barred from reviewing an instructional error if a party, at trial, did not identify and take exception to the error as the rule requires. Defendant, urges, however that the wording is susceptible to an alternative meaning. According to defendant, because the operative words are directed at trial litigants ("a party") and not at the appellate courts, the rule can plausibly be understood to identify a procedure for objecting in the trial court to instructional error and to warn litigants that they "may not obtain review" of the error if they fail to follow that ...