ORCP 59

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 17.335)

 

      It was error for trial court to deny timely request for second jury poll where first jury poll did not demonstrate validity of verdict. Sandford v. Chev. Div. Gen. Motors, 52 Or App 579, 629 P2d 407 (1981), aff’d 292 Or 590, 642 P2d 624 (1982)

 

ORCP 59B

 

      See also annotations under ORS 17.255 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 17.255)

 

      For instruction standing alone to constitute reversible error, it must be one which would prejudice defendant when instructions are considered as whole. State v. Betz, 11 Or App 25, 500 P2d 1219 (1972), Sup Ct review denied

 

      Jury instruction submitting theories of guilt not included in indictment is erroneous. State v. Gaylor, 12 Or App 544, 508 P2d 250 (1973)

 

      In determining whether offense is lesser included, court’s consideration should be limited to statutory definition of offenses and indictment in particular case. State v. Washington, 20 Or App 350, 531 P2d 743 (1975), aff’d 273 Or 829, 543 P2d 1058 (1975)

 

      Instruction that concealment may be considered evidence of consciousness of guilt was impermissible comment on evidence. State v. Wright, 31 Or App 1345, 572 P2d 667 (1977)

 

      When basis of crime with which person is charged is flight, such as escape case, prejudice of trial court’s pointing out evidence of flight by way of instruction is obvious. State v. Girard, 34 Or App 85, 578 P2d 415 (1978)

 

      Court’s statements of undisputed facts during instruction did not constitute error. R.J. Frank Realty, Inc. v. Heuvel, 284 Or 301, 586 P2d 1123 (1978)

 

      Concepts of “intent” and “knowledge” are distinct under ORS 161.085 and instruction worded in terms of intent should not be given in prosecution for crime where indictment alleges knowledge. State v. Francis, 284 Or 621, 588 P2d 611 (1978)

 

In general

 

      By making recorded instructions available to jury in courtroom during its deliberation, trial court complied with this Rule. State v. Looper, 77 Or App 660, 713 P2d 1099 (1986)

 

      Trial court’s decision on desirability of submitting instructions to jury in written or recorded form is case specific and is not determined by court’s standard procedure. Leland Properties v. Burton Engineering and Survey, 152 Or App 557, 954 P2d 851 (1998), Sup Ct review denied

 

ORCP 59C

 

      See also annotations under ORS 17.305, 17.310 and 17.320 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 17.320)

 

      It was error for judge to allow jury to have dictionary during deliberations. State v. Holmes, 17 Or App 464, 522 P2d 900 (1974)

 

      Where trial court did not submit to jury defendant’s statement of “jury issues,” but jury was adequately apprised of issues by court’s instructions to which defendant took no exception, although failure to submit was error, reversal was not required. State v. Gale, 36 Or App 275, 583 P2d 1169 (1978)

 

      Notwithstanding instruction that indictment was not evidence, submission of indictment to jury as statement of issues was improper. State v. Greene, 36 Or App 281, 583 P2d 1171 (1978), Sup Ct review denied; State v. Fisher, 39 Or App 931, 593 P2d 1294 (1979)

 

      Under provisions of ORS 136.330, this section is applicable in criminal cases. State v. Greene, 36 Or App 281, 583 P2d 1171 (1978), Sup Ct review denied

 

      New trial was required where alternate jurors were permitted to accompany jury to jury room and to deliberate and vote with jury. Vander Veer v. Toyota Motor Distributors, 282 Or 135, 577 P2d 1343 (1978)

 

      Where instructions to jury were clear as to which party had burden of proof on loaned servant question, it was not error for court to refer, in written statement of issues, to defendant-demolition company’s contention that tortfeasor was loaned employe of another. Salsgiver v. E.S. Ritter Co., 42 Or App 547, 600 P2d 951 (1979), Sup Ct review denied

 

      Where bailiff made improper remarks concerning sentencing habits of trial judge and knowledge of criminal element of society which were motivated by prejudice against defendant and were in violation of bailiff’s oath, remarks were assumed, even without proof, to be causally related to mistrial declared on basis of inability of jury to reach verdict. State v. Rathbun, 287 Or 421, 600 P2d 392 (1979)

 

In general

 

      Court may not exclude exhibit received as demonstrative evidence from use and consideration by jury during deliberation. Christensen v. Cober, 206 Or App 719, 138 P3d 918 (2006)

 

LAW REVIEW CITATIONS

 

Under former similar statute (ORS 17.320)

      56 OLR 558 (1977)

 

ORCP 59D

 

      See also annotations under ORS 17.325 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 17.325)

 

      Giving of instructions out of presence of and without notice to counsel when no record is made is reversible error. Huntley v. Reed, 276 Or 591, 556 P2d 122 (1976); Hastings v. Top Cut Feedlots, Inc., 285 Or 261, 590 P2d 1210 (1979)

 

      In reinstructing jury, judge may properly limit reinstruction to information required for addressing specific issue of law raised by jury. R.J. Frank Realty, Inc. v. Heuvel, 284 Or 301, 586 P2d 1123 (1978)

 

In general

 

      Where judge rejected plaintiff’s written instructions to jury on standard of care and summarized law in own words, and jury requested copy of trial court’s instruction on negligence and strict liability and counsel approved submission of written instruction not containing plaintiff’s rejected instruction on issue of standard of care, there was no error in such re-instruction. Carlson v. Piper Aircraft Corp, 57 Or App 695, 646 P2d 43 (1982), Sup Ct review denied

 

ORCP 59E

 

      See also annotations under ORS 17.255 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 17.255)

 

      It was error for trial judge to instruct jury on meaning of medical term when no evidence of its meaning had been introduced by either party. Creasey v. Hogan, 48 Or App 683, 617 P2d 1377 (1980), aff’d 292 Or 154, 637 P2d 114 (1981)

 

In general

 

      Instruction that jury could infer that defendant’s blood alcohol content was not less at time of driving and arrest than at time of intoxilyzer test was instruction on inference which should be left to oral argument. State v. Conway, 75 Or App 430, 707 P2d 618 (1985), Sup Ct review denied

 

      Instruction that jury could consider certain evidence was permissible where instruction did not suggest that jury draw particular inference from evidence. State v. Blanchard, 165 Or App 127, 995 P2d 1200 (2000), Sup Ct review denied

 

ORCP 59F

 

      See also annotations under ORS 17.330 and 17.335 in permanent edition.

 

NOTES OF DECISIONS

 

      Motion for mistrial is addressed to sound discretion of trial court and its exercise will not be upset except for clear abuse. State v. Poole, 11 Or App 55, 500 P2d 726 (1972), Sup Ct review denied

 

      Where trial judge clearly and emphatically instructed jury to disregard an improper question and gave further cautionary instruction at end of trial, judge did not abuse discretion in denying motion for mistrial. State v. Poole, 11 Or App 55, 500 P2d 726 (1972), Sup Ct review denied

 

      Trial court cannot declare mistrial on its own motion because of remarks made by prosecutor during trial. State v. Bauer, 16 Or App 443, 519 P2d 96 (1974), Sup Ct review denied

 

      Anonymous polling of jury in criminal trial is reversible error. State v. Lewis, 18 Or App 206, 524 P2d 1231 (1974), Sup Ct review denied

 

      Verdict-urging instruction is permissible in civil cases if instruction closely follows model instruction approved by Oregon Supreme Court. Schlimgen v. May Trucking Co., 335 Or 143, 61 P3d 923 (2003)

 

ORCP 59G

 

      See also annotations under ORS 17.345, 17.355 and 17.360 in permanent edition.

 

NOTES OF DECISIONS

 

      Where court instructed jury in personal injury action involving two defendants that same nine jurors need not agree as to liability of both defendants if one defendant was found not liable, verdict was valid. Davis v. Dumont, 52 Or App 73, 627 P2d 907 (1981), Sup Ct review denied

 

      Rule that same nine jurors must agree on every issue material to decision in order to return legal verdict applies only to cases where answers are interdependent, not where they are separate and independent. Veberes v. Knappton, 92 Or App 378, 759 P2d 279 (1988)

 

      Jury’s unanimous conviction of defendant of felony murder is not inconsistent with less than unanimous vote on first degree kidnapping because dissenting juror could have found defendant guilty of lesser included offense sufficient to support felony murder verdict. State v. Mendez, 308 Or 9, 774 P2d 1082 (1989)

 

      Once verdict is received and jury has dispersed, court is foreclosed from taking any curative action regarding defective verdict other than mistrial or other post-trial motion. State v. Vann, 158 Or App 65, 973 P2d 354 (1999)

 

      Attempt by court to rectify inconsistency in jury verdict does not excuse party from seeking clarification of verdict by way of instruction or by requesting clarification. Howmar Materials, Inc. v. Peterson, 171 Or App 52, 14 P3d 631 (2000), modified 174 Or App 55, 23 P3d 409 (2001), Sup Ct review denied

 

      Where verdict includes more than one finding, at least nine members of 12-person jury must agree on each finding but this section permits different nine jurors to agree on each of multiple findings in verdict. Kennedy v. Wheeler, 356 Or 518, 341 P3d 728 (2014)

 

ORCP 59H

 

      See also annotations under ORS 17.505 to 17.515 in permanent edition.

 

NOTES OF DECISIONS

 

      In action for slander, though trial court should have instructed that defendants’ statements were qualifiedly privileged, error was not preserved where such instruction was not submitted to court. Worley v. OPS, 69 Or App 241, 686 P2d 404 (1984), Sup Ct review denied

 

      Purported error in jury instruction was not preserved for appeal where appellant did not particularly state grounds for exception to court’s instruction. Shivers v. Riney, 72 Or App 281, 695 P2d 951 (1985)

 

      Considerations of orderly procedure and fairness require defendant who desires lesser included jury instruction to request it before beginning of closing arguments. State v. Radford, 101 Or App 665, 793 P2d 324 (1990), Sup Ct review denied

 

      Error not properly preserved or raised on appeal can be considered by court if error of law and apparent on face of record. Ailes v. Portland Meadows, Inc., 118 Or App 517, 848 P2d 138 (1993), Sup Ct review denied

 

      Finding that no probability exists that jury will agree upon verdict is prerequisite to statutory ability to terminate trial upon grounds that jury is unable to reach decision and to permit subsequent retrial. State ex rel Turner v. Frankel, 322 Or 363, 908 P2d 293 (1995)

 

      Where court omits giving defendant’s requested jury instruction, defendant has obligation to bring issue to attention of court to clarify whether omission is accidental or is adverse ruling on instruction request. State v. Derrick, 198 Or App 358, 108 P3d 608 (2005), Sup Ct review denied

 

      Prohibition against reviewing instruction that was not objected to at trial does not apply where appeal is based on giving of correct but incomplete instruction. State v. Pervish, 202 Or App 442, 123 P3d 285 (2005), Sup Ct review denied

 

      Appellate court may review unpreserved assertion that trial court committed plain error by failing to deliver instruction that was not requested but was required by law. State v. Toth, 213 Or App 505, 162 P3d 317 (2007)

 

      Extended to criminal cases by ORS 136.330, rule does not impose requirements at trial for party’s perseveration of instructional error for appellate review or preclude appellate court from reviewing claim of error pursuant to appellate court’s traditional plain error doctrine. State v. Vanornum, 354 Or 614, 317 P3d 889 (2013)