State v. Porter
| Decision Date | 16 November 2005 |
| Docket Number | 0002-42642; A120069. |
| Parties | STATE of Oregon, Respondent, v. Monte Craig PORTER, Appellant. |
| Court | Oregon Supreme Court |
Mary-Shannon Storey, Deputy Public Defender, argued the cause for appellant. With her on the brief were Peter A. Ozane, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.
Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before EDMONDS, Presiding Judge, and LINDER* and SCHUMAN, Judges.
Defendant appeals his conviction for driving under the influence of intoxicants (DUII), ORS 813.010(1). To decide the merits of his appeal, we must determine the nature and effect of his acknowledgment, in a written agreement between him and the prosecution and in statements he made in court under oath, that he had driven while affected by alcohol at the time and place indicated in the citation. Defendant argues that the contents of the agreement and statements were merely evidentiary admissions that he was entitled to contest. The state characterizes them as stipulations with the effect of withdrawing the issues from dispute and thereby precluding defendant from offering contrary evidence. We agree with the state and affirm.
The following facts are undisputed. After driving his automobile into two parked cars on a small street in Multnomah County, defendant was charged with DUII and two counts of criminal mischief. Before trial, defendant and the state negotiated a plea agreement under which defendant agreed to plead guilty to one charge of criminal mischief; the state agreed to dismiss the other; defendant agreed to enter a DUII diversion program; and defendant agreed to stipulate to the elements of DUII. This last part of the agreement, a customary aspect of the prosecution's negotiated pleas when DUII is a "trailing charge" in a multi charge case, served to facilitate prosecution for DUII in the event that defendant did not successfully complete his diversion.
The plea agreement was negotiated by defendant's attorney and a deputy district attorney; defendant himself did not participate. However, the agreement was memorialized in a statement signed by defendant and containing the notation "Stip DUII." That abbreviation, according to the uncontradicted testimony, indicated that defendant stipulated to the elements of DUII. The statement also contained a "certificate of counsel" form signed by defendant's attorney and stating that the attorney had "explained alternatives and trial strategies to defendant," and that "[t]o the best of my knowledge, defendant's decision to enter this plea is made voluntarily, intelligently, and knowingly." Further, at defendant's change of plea hearing, the prosecutor announced, without objection, that defendant "will stipulate to the elements of DUII." Immediately thereafter, defendant was sworn as a witness and engaged in the following colloquy with the prosecutor:
When defendant subsequently failed to comply with the terms of the diversion agreement, the state reactivated his DUII prosecution and a jury trial ensued. At that trial, defendant and the state disagreed about the legal effect of the written and oral statements made by defendant and his counsel at and before the plea hearing. Defendant characterized the statements as mere evidence against defendant that the state could use in presenting its case to the jury. Based on that premise, defendant indicated that he planned to produce evidence that, contrary to one of the stipulations, he was not impaired by alcohol at the time of the accident. The state, on the other hand, characterized the statements as legally binding stipulations regarding the elements of DUII. Based on that premise, the state argued that defendant was precluded from presenting any evidence contrary to the statements. The trial court agreed with the state that defendant stipulated to every element of DUII, and accepting what it construed as a binding judicial admission, the court instructed the jury, in part, as follows:
The jury, not surprisingly, returned a verdict of guilty.
On appeal, defendant renews the argument he made below: first, because the statements made at the plea hearing were nothing more than evidence that the state might offer at trial to prove its case, the trial court erred by refusing to permit defendant to present contrary evidence tending to show that he was not under the influence of intoxicants at the time of the accident; second, the trial court erred in failing to ensure that defendant voluntarily and knowingly waived his right to present his defense; third, the court erred in denying defendant's motion for a judgment of acquittal because the state's only evidence regarding intoxication was that defendant was "under the effects of intoxicants," and no reasonable juror could find, on that basis, that he was "under the influence" of intoxicants, or, in the alternative, that the only evidence was an uncorroborated confession; and fourth, the trial court erred in instructing the jurors that they had to regard the fact of defendant's intoxication as proven. We reject all of those assignments of error.
A stipulation is the functional equivalent of a judicial admission; indeed, the two terms are sometimes used interchangeably. State v. Anderson, 137 Or.App. 36, 42, 902 P.2d 1206, rev. den., 322 Or. 362, 907 P.2d 249 (1995); Kathrens and Kathrens, 47 Or.App. 823, 827, 615 P.2d 1079 (1980). However denominated, it is a statement by which one party waives the right to require the other party to prove a particular fact. State v. Harris, 339 Or. 157, 173, 118 P.3d 236 (2005). The effect of a stipulation depends on the intention of the party that makes it; that party must knowingly make the statement for the purpose of dispensing with the need for proof. Johnson v. Northwest Acceptance, 259 Or. 1, 7, 485 P.2d 12 (1971). The party attempting to use a stipulation has the burden of establishing that the party against whom it would be used intended to dispense with the need to prove the stipulated fact. Id. Once stipulated, a fact is conclusively proven, State v. Ordonez-Villanueva, 138 Or.App. 236, 244 n. 8, 908 P.2d 333 (1995), rev. den., 322 Or. 644, 912 P.2d 375 (1996), and can be withdrawn only for "fraud, mutual mistake or the actual absence of consent," Murray v. Johnson, 86 Or.App. 295, 297, 738 P.2d 1005 (1987).
Thus, a stipulation of fact for purposes of disposing with the state's need to prove an element of a crime does not relieve the state from the burden of proving that fact for purposes of sentencing. Harris, 339 Or. at 172-73, 118 P.3d 236. A statement in opening argument that merely predicts what the evidence will show is not a stipulation, Erwin v. Thomas, 267 Or. 311, 313, 516 P.2d 1279 (1973), nor is a statement of ambiguous scope, State v. Cargill, 100 Or.App. 336, 341, 786 P.2d 208 (1990), aff'd, 316 Or. 492, 851 P.2d 1141 (1993), nor a mere casual statement by one party in the absence of evidence that the statement resulted from a formal agreement between the parties that a fact need not be proved, State v. Suggs, 119 Or.App. 245, 248, 850 P.2d 388, rev. den., 317 Or. 584, 859 P.2d 541 (1993).
What occurred here, on the other hand, clearly was intended to be, and was, a formal statement for the purpose of relieving the state of the need to prove facts. Defendant's assertion to the contrary is not persuasive. His statements were carefully orchestrated and formal, using universally understood terms of art, and were undeniably for the purpose of facilitating prosecution of defendant should he fail to complete his diversion. The stipulations occurred in writing and orally. Defendant signed an agreement, under advice of counsel, stating that he would "stip DUII," a notation that the state explained (without contradiction) meant that defendant stipulated to all of the elements of DUII, including driving while under the influence of alcohol. That signed statement, again according to the uncontradicted evidence, was the result of plea negotiations between the state and defendant's attorney. In consideration for dismissing one charge of criminal mischief, defendant agreed to plead guilty to a second charge of criminal mischief and to stipulate to the elements of DUII in order to allow the state expeditiously to prosecute him for that...
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