Argued and Submitted September 27, 2013
Lane County Circuit Court No. 201028649, Douglas S. Mitchell, Judge.
Reversed and remanded.
David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jamie Contreras, Assistant Attorney-in-Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[265 Or.App. 180] NAKAMOTO, J.
Defendant appeals a judgment convicting him of perjury, ORS 162.065, assigning error to the trial court's instruction to the jury that it was required to accept certain facts as having been proved beyond a reasonable doubt in a prior proceeding. Defendant argues the instruction removed an element of
the crime from the jury's consideration and, therefore, violated his state and federal constitutional rights to a jury trial on all elements of the charged crime. We review the trial court's jury instructions for errors of law, State v. Bistrika, 262 Or.App. 385, 406, 324 P.3d 584 (2014), and reverse and remand.
The facts are procedural and undisputed. In a prior criminal case, defendant was charged with two counts of manslaughter and one count of driving under the influence of intoxicants (DUII) in connection with a fatal automobile accident in which two of defendant's friends were killed. Defendant denied that he was driving the vehicle at the time of the accident and testified to that effect at his trial. Despite that testimony, the jury found defendant guilty of manslaughter and DUII. Implicit in that verdict was a conclusion that defendant had been driving the vehicle at the time of the accident. See, e.g., ORS 813.010(1) (" A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle * * *." (Emphasis added.)). The state then charged defendant with perjury for his allegedly false testimony in the first trial.
At a pretrial hearing for the perjury trial, the state sought a special jury instruction labeled " Matter Determined by Former Judgment." In that instruction, the state sought to have the court instruct the jury that certain facts related to the perjury case had been proved beyond a reasonable doubt in defendant's first trial. The special instruction stated:
" In previous proceedings in this Court, [defendant] was found, beyond a reasonable doubt to have recklessly caused the deaths of [the victims] on September 18, 2010, * * * while [defendant] was driving under the influence of intoxicants.
" You are instructed to accept these facts as having been proven beyond a reasonable doubt and shall not deviate from these facts when reaching your verdict."
[265 Or.App. 181] Defendant objected to the state's requested special instruction, arguing that it was unconstitutional to apply issue preclusion offensively against a criminal defendant especially considering the state's burden of proof in criminal cases. In defense of its proposed instruction, the state argued that the issue preclusion rule, embodied in ORS 43.160, prevents relitigation of issues determined by a prior judgment to preserve and protect the prior judgment. The state explained that the jury in defendant's previous trial had necessarily determined that defendant was the driver in the accident when it found him guilty, and therefore, issue preclusion prevented relitigation of that issue.
The trial court ruled that it would give the state's special instruction and that the state was permitted to tell the jury that they would be receiving that instruction. In making that ruling, the court stated:
" I don't find that the instruction offends the defendant's due process. The defendant had a full opportunity to litigate those issues, was represented by competent counsel and I'm not able to find any decisional law that says defendants can use collateral estoppel but the state can't."
At the close of the trial, the court instructed the jury, in relevant part, as follows:
" In a previous proceeding in this court, [defendant] was found beyond a reasonable doubt to have recklessly caused the death of [the victims] on September 18th[, 2010,] * * * while [defendant] was driving a motor vehicle under the influence of intoxicants.
" You are instructed to accept these facts as having been proved beyond a reasonable doubt and shall not deviate from these facts ...