State v. Carrasco-Montiel, 379 P.3d 529

Defendant Duncan was convicted after a jury trial of first-degree assault and unlawful use of a weapon and was sentenced to 90 months’ imprisonment.
On appeal, Duncan challenges: (a) failure to sua sponte grant a mistrial after a juror injected outside information into deliberations; (b) improper closing argument allegedly undermining presumption of innocence; (c) denial of his motion for a new trial based on allegedly inaudible alibi witness and juror threats, and the petition to subpoena the jury foreperson; (d) trial court’s discretion in declining to subpoena the foreperson.
During trial, Cornejo’s testimony was difficult to hear; defense offered an alibi and U visa-related testimony through James; the victim acknowledged U visa knowledge.
Closing arguments featured prosecutor’s statements, which Duncan objected to as compromising presumption of innocence, but the court overruled.
Deliberations revealed a juror (Gaul) discussed outside information about U visas and other non-record material; the court questioned Gaul and then declined to declare a mistrial.
Verdict was 10-2 in favor of guilt; a juror safety escort was arranged after a report of threat, with one juror (Smith) eventually acquitting.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mistrial sua sponte required?	State argues no plain error; parties considered proceeding with the jury; no mandate to mistrial.	Duncan contends the court erred by not declaring mistrial after outside information tainted deliberations.	No plain-error requirem ent; no automatic mistrial mandated.
Closing argument violated presumption of innocence?	State contends remarks viewed in context did not undermine presumption of innocence.	Duncan asserts comments impermissibly shifted focus from evidence to defendant’s guilt.	Closing argument did not undermine presumption of innocence.
Denial of post-verdict motion for a new trial based on known irregularities?	State argues known irregularities were not properly preserved for review; no error.	Duncan contends new-trial motion should be reviewed for irregularities (inaudible testimony, juror misconduct, threats).	Motion for a new trial not reviewable due to waiver from not objecting earlier.
Authority to subpoena the jury foreperson for misconduct determination?	State asserts court’s discretion to decide on subpoenas and rely on in-court findings.	Duncan seeks subpoena to identify who threatened foreperson and to probe misconduct.	Trial court did not abuse discretion; no need to subpoena given findings and acquittals.

State v. Sundberg, 233 Or App 77 (Or. App. 2009) (waiver when irregularity known and not timely objected; post-verdict review limited)
Transamerica Title Ins. v. Millar, 258 Or 258 (Or. 1971) (timing of objection governs reviewability of new trial motions)
Evans, 98 Or 214 (Or. 1920) (newly discovered evidence may warrant review despite final verdict)
Sullens, 314 Or 436 (Or. 1992) (legislative changes did not expand reviewability of new-trial denials)
Koennecke v. State of Oregon, 122 Or App 100 (Or. App. 1993) (balance deliberation privacy and integrity of verdicts in juror investigations)