284 P.3d 585
Or. Ct. App.2012Background
- Defendant was convicted of possession of a controlled substance (PCS) after a Portland incident; the court acquitted him of resisting arrest and failed to appear.
- Event occurred in August 2009 in downtown Portland; police found a glass pipe with crack cocaine and defendant claimed he picked it up off the ground.
- Defendant was tackled and injured during a scuffle, transported to a hospital, and involved in a second scuffle while in custody.
- During trial, an officer testified that Mirandaized defendant and he refused to talk, and shortly after another officer stated that defendant invoked his right to speak with counsel.
- Defense objected to the invocation comment; the court heard the motion for a mistrial, which the court denied.
- State concedes the statements violated the right to remain silent, but the issue on appeal is whether the denial of the mistrial was proper and whether any error was harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admission of statements about invoking right to counsel violated defendant’s right to silence. | State argues the error was not reversible given it was not intentional and could be cured. | Schuman contends the improper statements tainted the trial and warranted a mistrial. | The error occurred and was prejudicial, but harmless error analysis applied; affirm. |
| Whether the court’s denial of a mistrial was proper given the improper testimony. | State contends the court acted within discretion and no curative instruction was requested. | Defendant argues denial of mistrial was a reversible error. | Harmless error under Davis standard; judgment affirmed. |
Key Cases Cited
- State v. Alvord, 118 Or App 111 (1993) (improper comment on exercising right to silence violates rights; curative instruction discussed)
- State v. Davis, 336 Or 19 (2003) (test for harmless error focuses on likelihood error affected verdict)
- Ryan v. Palmateer, 338 Or 278 (2005) (recognizes some errors not structural; harm presumption analysis)
- State v. Wederski, 230 Or 57 (1962) (prejudice from invoking right to silence if likely to influence jurors)
- State v. White, 303 Or 333 (1987) (prejudice standard for evidence related to right to silence)
- State v. Smallwood, 277 Or 503 (1977) (context for admissibility and prejudice considerations)