Pleading, proof and stipulation regarding previous conviction element in prosecution for aggravated murder
(1) In a prosecution for aggravated murder under ORS 163.095 (“Aggravated murder” defined) (1)(c), the state shall plead the previous conviction, and shall prove the previous conviction unless the defendant stipulates to that fact prior to trial. If the defendant so stipulates and the trial is by jury:
(a) The court shall accept the stipulation regardless of whether or not the state agrees to it;
(b) The defendant’s stipulation to the previous conviction constitutes a judicial admission to that element of the accusatory instrument. The stipulation shall be made a part of the record of the case, but shall not be offered or received in the presence of the jury;
(c) For the purpose of establishing the prior conviction solely as an element of the crime under ORS 163.095 (“Aggravated murder” defined) (1)(c), neither the court nor the state shall reveal to the jury the previous conviction, but the previous conviction is established in the record by the defendant’s stipulation; and
(d) The court shall not submit the accusatory instrument or evidence of the previous conviction to the jury.
(2) In a proceeding under ORS 163.095 (“Aggravated murder” defined) (1)(c), the state may offer, and the court may receive and submit to the jury, evidence of the previous conviction for impeachment of the defendant or another purpose, other than establishing the conviction as an element of the offense, when the evidence of the previous conviction is otherwise admissible for that purpose. When evidence of the previous conviction has been admitted by the court, the state may comment upon, and the court may give instructions about, the evidence of the previous conviction only to the extent that the comments or instructions relate to the purpose for which the evidence was admitted.
(3) When the defendant stipulates to the prior conviction required as an element of aggravated murder under ORS 163.095 (“Aggravated murder” defined) (1)(c), if the jury finds the defendant guilty upon instruction regarding the balance of the elements of the crime, the court shall enter a judgment of guilty of aggravated murder. [1981 c.873 §3]
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