*1 29, Oсtober reversed and remanded Argued March and submitted OREGON, OF STATE Plaintiff-Respondent, v. VEATCH,
BRETT ALAN Defendant-Appellant. Circuit Court County
Washington
D052111T; A132040
445-b argued appellant. Richard E. the cause Oberdorfer for With him on the brief was Oberdorfer Law Firm LLC.
Douglas Attorney argued Zier, General, F. Assistant respondent. Hardy cause for With him on the brief were Myers, Attorney Mary General, Williams, and H. Solicitor General. Presiding Judge, Judge, Haselton, Edmonds,
Before and Judge. Rosenblum, ROSENBLUM, J. concurring part dissenting part.
Edmonds, J., *4 J. ROSENBLUM, appeal
This to determine whether calls on us privately police consult with to denied defendant’s Intoxilyzer deciding test to take an whether counsel before given adequacy curative instruction ofa and to determine response jury by a defense motion court in to to the for a mistrial. deprive police that the did We conclude legal opportunity to obtain advice a reasonable defendant of correctly denied his motion the trial court and, thus, that Intoxilyzer suppress However, test. related to evidence that the court curative instruction conclude that the we also deny- inadequate gave erred in thus, that the court and, Accordingly, ing we motion for a mistrial. defendant’s reverse. driving under the influ- convicted of Defendant was 813.010(1). (DUII), three He makes ORS
ence of intoxicants reject appeal. assignments the first without We of error on challenges assignment, defendant In his second discussion. arresting made after the a motion for a mistrial the denial of speak his had with that defendant officer testified attorney asked deciding submit to an whether he would Intoxilyzer instruction a curative The trial court test. assignment In defendant’s third the motion. but denied denying his erred in that the trial court error, he contends Intoxilyzer suppress to the test. related evidence motion arresting assignment, support offi- he asserts of that messages he left mail the room while voice cer did not leave attorney if could mother to ask she and called his with attorney. him to another refer suppress pertinent motion to to the take the facts We per- hearing suppression and the facts record of the
from the the record of motion from tinent to the mistrial suspicion of DUII on was arrested trial. Defendant arresting police placed officer car. While the of a in the back transport talking had arrived another officer who Washington County took his Jail, defendant defendant attempted pocket make a call. Offi- phone from his cell phone him to the Berry then drove from him and cer took agree jail. jail, if he would defendant asked At the *5 Intoxilyzer con- alcohol determine his blood test to take tent. Defendant family’s his to contact that he wanted stаted jail policy, hands attorney Pursuant first. Berry dialed the back, so handcuffed behind remained telephone placed defen- on the receiver and then number his shoulder it between so he could hold shoulder dant’s attorney did approximately and the a.m., 4:00 head. It was telephone. mes- voice mail Defendant left two answer his jail. asking then sages Defendant his call at him to return asking to another attor- to refer him mother, her called his my hearing, suppression Berry “It was ney. at the testified understanding other of mother was unaware that his Berry family attorneys to let defen- offered used.” attorney telephone book, but, in the dant look for another Berry that.” “didn’t desire to do testified, defendant attorney, messages for his defendant left the
After attorney Berry call back. When an hour for the waited half Berry that he told defendant call, then he did not return agree to defendant would as to whether needed a decision initially Intoxilyzer proceed test. Defendant with the Berry take the as a refusal to silent, which took remained Intoxilyzer printed from the a “refusal card” test. He up stood and walked later, defendant machine. Moments Berry him a decided to let submit machine, to the so over mouthpiece, sample. but he did not into the Defendant blew get sample. enough a for the mаchine to hard blow attempt refusal. recorded his as another suppress a motion to trial, defendant made Before Intoxilyzer arguing that he test, the evidence related right private with counsel consultation denied the was before deciding court to the test. The to consent whether denied the motion. selected, trial, before
At defendant’s prosecutor, discussed and the trial court counsel, defense judge rulings pretrial had made earlier. different that a stated that the judge that there had ruled Defense counsel telephone [defendant’s] calls what- “no mention should be soever because * * right And the sec- a *. that’s invocation of Gerry prong Chase, who’s no mention witness ond part lawyer lawyer, of the is also to call because * * prosecutor counsel stated that she had a dif- pretrial ruling, acknowledging ferent recollection of the say lawyer,” contending judge “we can’t he was a but had ruled that evidence about calls could come in. The court telephone ruled that there could be no mention of calls unless opened the defense the door to such evidence even * * “[w]e then, don’t need to it know who was to *.” opening jury, prosecutor In her statement to the attempted phone stated that defendant had to use his cell police interrupted, the back of the car. Defense counsel stat- ing, Honor, “Your I have matter for the court.” The court responded, opening “No, I know what it is and it’s fine.”After *6 concluded, statements had was sent out ofthe court- room. Defense that, counsel stated “for record,” he was moving interjected for a mistrial. The court that it under- prosecutor’s stood that the motion was based on the mention phone, adding, “[I]t’s [what] of the cell close,but I that’s knew you going were to do and I would overrule it.” Berry testify. case-in-chief, its the state called transport After he testified about defendant’s arrest and jail, his direct examination continued as follows: Okay. you you oper- “Q. all, Did are trained to —first Intoxilyzer? ate the “A. Yes. Okay. you “Q. station, Whileat the did read the defen- rights consequences?
dant his “A. Yes. you
“Q. Did himask if he wouldtake the test? Yes, “A. I did. respond?
“Q. Howdid he lawyer making “A. He wanted to call his decision. Objection.
“[Defensecounsel]: I have a matter for the court. “THE COURT: Sustained. And if I hear that word
again— Yeah. “[Prosecutor]: again. all over to start —you’regoing
“THE COURT: officer, talked about And, we Right. “[Prosecutor]: this. you, person real honest with To be “THE COURT: you’re supposed lawyer and call their
has a to do they have a since any inferences from make it. it bring up. supposed even the State’s nоt “And so totally going us are up. it The seven of They brought Go ahead. it, though they couldn’t. ignore * * * Officer, you under- just so Okay. “[Prosecutor]: ques- Just answer about this outside. stand. We talked Okay? tions I ask. right. All
“[Berry]: No talk of—
“[Prosecutor]:
“[Berry]: Okay. So, you lawyers. —phone calls or
“[Prosecutor]: he the defendant would point you some asked asked —at take a test? breath
“A. Yes.” did not that defendant testify went on to then a “refusal card” but he initially printed answer and that *7 Berry stated give sample. defendant to breath allowed because, view, in his as a refusal attempt he recorded the effort.” had not “an honest given defendant rested its the state testifying, finished Berry After then lunch. Defendant excused for case, and the the law- comment about on the for a mistrial “based moved That’s denied still.” “Okay. The court yer.” responded, behalf, in defendant’s testified Several witnesses he had testified that Defendant defendant himself. including after- early lunch in the half with one and a beers consumed he the time then and alcohol between had no more noon but ultimately The jury later. than 12 hours arrested more DUII. guilty found defendant appeal, challenges
On
defendant
the denial of his
suppression
begin
and mistrial motions. We
with the motion
suppress.
challenge
to
Defendant renews his
to the introduc
Intoxilyzer
tion of the evidence related
test. He con
Berry
given
privacy
tends that
should have
him
both when he
messаges
attorney
left the voice mail
for his
and when he
attorney.1
called his mother to ask her to refer him to another
passage
He relies on a
in State Durbin,
v.
Defendant reads too much into that in phrase legal Durbin. Read in isolation, the “to seek advice” attempting could be understood to include to locate or contact attorney. an However, the context in which the court used phrase “seeking in Durbin demonstrates that advice” actually conferring means with counsel. The issue that defen- play dant raises here was not in even Rather, Durbin. (1) only questions right before the court were whether “the privately consult with counsel is inherent in the (2) prоvides”; counsel that I, Article section whether “the police opportunity must afford an arrested driver the to con- privately sult counsel, with if even the arrested driver does independent request privately”; not make an to consult (3) police justified limiting “right whether the are argue Defendant does violated his to counsel remain ing that, telling counsel, Berry in the room without defendant if he contacted would (2007) Matviyenko, 125, 130, 157 leave the room. See State v. that, (holding made, if an officer intends to remain the room until the call is onus is on the officer to inform the arrestee before the call is made once he or afforded). attorney, privacy she contacts will be Because defendant does not argument, make that we do not consider it. *8 already period privately” has if the observation consult attempt- right begun. extends Whether Id. at 187-88. attorney was sim- an ing contact with locate and establish ply at issue. not question, answering the court the first
Moreover, in encourage necessary confidentiality the full stated attorneys their cli- between frank communication legal appropriate rendition to the that is essential ents (citing right State Id. at 190 to counsel. advice and thus (1986) (“Lawyers can 270, 274, 730 Jancsek, 302 Or v. par- fully effectively only facts of the advised when act they represent[.]”)). “defen- that the It concluded ties whom privately right right included the to counsel dant’s confer to counsel and that his invocation counsel with privately opportunity request was sufficient confer ** added). (emphasis It further concluded Id. at 191 [the] presence while within earshot of the officer “the defen- confidentiality lawyer breached consulted with his dant [the] lawyer-client defen- and violated communication theof Id. at 192 I, section 11.” under Article to counsel dant’s (concluding added); (emphasis that the 192-93 see also id. at already begun obser- the 15-minute had fact that the officer presence justify period continued the officer’s did not vation [the] counsel”; fact that consulted with defendant “while the observation
period not terminated does have to be would “right justify with his to consult of the defendant’s a violation request begun, lawyer privately”; made after the for counsel is if a “ ordinarily period late’ to ‘too it is has observation require counsel be confidential” consultation with added)). (emphasis in Durbin that court held short, privacy driver confers an arrested afforded while must be attempts attorney, or to locate driver not while the with an attorney. with an establish contact
Consistently defen Durbin, conclude that we with opportunity consult with counsel reasonаble dant’s defen the room while remained in not violated because messages for a referral. his mother and asked left dant Matviyenko, App 125, in State v. Indeed, as we noted justified may be “an officer 130, 157 P3d attorney remaining is made with an until contact in the room suspect actually attorney in order to ensure that the calls an using telephone inappropriate pur- rather than for some added.) pose.” (Emphasis deny- The trial court did not err in ing suppress. the motion to
We turn to defendant’s mistrial motions. Defendant separately assigns error to the denial of his motion based on prosecutor’s phone the opening reference to the cell call in her Berry’s statement and his motion based on reference to his dispositive, invocation ofthe to counsel. Because it is we begin and end with the latter motion. outset, At the we must determine whether the preserved. asserted error is The state concedes that the trial court understood that defendant intended to seek a mistrial Berry lawyer after testified that defendant wanted to call his deciding argues, whether to take the breath test.2 It nonetheless, that the actual motion a for mistrial —which Berry testifying came after finished and the state rested— untimely preserve and therefore did not the issue for appеal. argues The state also that defendant failed to raise any objection sufficiency to the of the trial court’s instruction jury disregard testimony prosecutor’s to the or to the Berry “phone lawyers.” admonition to to mention not calls or appears position The state that, to take the because defen object dant did not to the trial instruction, court’s he cannot complain grant now about the court’s failure to a mistrial. agree respects.
We with the state, in some Defense counsel’s statement —“I have a matter for the court”— immediately following Berry’s testimony was sufficient to alert the trial court that he intended to move for a mistrial. response The court’s shows that it understood counsel’s immediately grant intent: It mistrial, threatened to a warn- ing prosecutor “going again” the that she was to start all over if defendant’s invocation of the to counsel was men- again, disregard tioned timony. and it instructed the the tes- expressly
Furthermore, when defendant made the testifying, motion after finished stated, the court 2 brief, objected, In its “[w]hen the state notes defendant the trial court objection immediately gave sustained his jury— a curative instruction to the necessarily showing that, discretion, required in its mistrial was not and that harm would cured be its instruction.”
453 added.) agree (Emphasis We with “That’s denied still.” that defendant intended trial court understood state mistrial. for a to move agree, however, that defendant made the
We
do
preserve
appeal.
for
“In
motion too late to
issue
actual
ruling
mistrial,
for a
a trial court must decide
on motion
grant
inappropri
motion,
cure the effect of
whether
testimony by giving
proper
conduct
instruction
ate
or
nothing
instead,
Evans,
211 Or
or to do
at all.”
358, 182
162, 166, 154
P3d
affd,
P3d
(2008).
purpose
requiring
behind
an immediate mistrial
prompt
if
take
curative action
motion is
allow
court to
Shafer,
court
it is warranted. State v.
Or
believes
(“The
(1960)
time move for mistrial is
235,
make
immediate motion
AppOr
463
instruction. 223
at
that
court
curative
(Edmonds,
dissenting).
of this
J.,
Under
circumstances
disagree.
the trial court under
case,
Where it is clear that
we
it
mistrial,
that the defendant intends
seek
stands
responds by giving a curative instruction, the need for an
Again,
point
immediate mistrial motion is obviated.
requiring
immediately
that the motion be made
is to allow
prompt
averting
court to take
action,
curative
thus
need for a mistrial.
Shafer,
235;
Or at
see also State v.
App
Wilson, 121 Or
460, 470-71,
657,
den,
855 P2d
rev
318 Or
(1993) (where
it is clear that the trial court would not take
response
preservation
curative action in
to a mistrial motion,
principles do not demand that the motion be made immedi
ately);
App
State Lundbom,
v.
458, 462,
96 Or
773 P2d
rev
(1989) (same).
gives
den,
The dissent asserts that another ciple play arguing is at here, that defendant used his motion position for a mistrial as a fallback in the event that he was acquitted. (Edmonds, dissenting). at 469 J., might In some circumstances, infer it be reasonable to delay making the defense counsel made a tactical decision to a motion for a mistrial in order to assess how trial was unfolding likely and whether it was would return a favorable verdict—in case, which a mistrial would not be desirable. Such a tactical decision undermines the assertion that the defendant cannot obtain fair trial. In this only case, however, defendant’s counsel waited a short time making the motion; indeed, he made it at the next Berry testifying. trial, break in the after had finished It unlikely waiting seems that counsel was to see how devastat- ing his cross-examination of would be to the state’s deciding case before whether to make the motion. respect Berry’s short, we conclude with
testimony, defendant’s mistrial motion does not run afoul of *11 preservation requirements.
We next consider the state’s contention that defen
object
sufficiency
dant’s failure to
to the
of the curative
purposes
instruction nullified his mistrial motion for
of this
appeal. We conclude that
it did not. Neithеr we nor the
gives
Court
have ever held
when a trial court
response
objectionable testimony,
a curative instruction in
sufficiency
object
instruction
ofthe
must
to the
the defendant
prop
appeal
permitted
an otherwise
to raise on
in order to be
testimony.
erly preserved
In
on that
mistrial motion based
give
rather
a curative instruction
short,
the court chooses to
if
denying preserved
any
mis
mistrial,
declare a
error
than
trial motion remains
preserved regardless
of whether
objected
sufficiency
See
of the instruction.
defendant
487, 508-11,
to have a fair trial if the
infer that the
is
defen
right
guilty
dant exercised the
because he or she was
of the
charged
Smallwood,
503, 505-06,
offense. See State v.
277 Or
(1977) (“There
600,
den,
561 P2d
cert
On we noted that context which trying indicate[d] [the] comment arose that defendant was get matter, the detective to discuss the and the reference merely reply.” stated the Id. at In other detective’s 898. jury’s likely words, the attention was focused on the defen- attempt dant’s to discuss the matter rather than on his ear- lier invocation of the that “the counsel. We concluded purpose drawing comment was not made for the attention [the] counsel,” defendant’s exercise of his and that prejudicial it “did not occur in a context where inferences [the] likely by jury.” defendant were to be drawn Id. jury’s
Where the context is such that the attention is away guilt not directed from the inference of that the defen right may give to, dant’s invocation of a constitutional rise a may necessary. mistrial White, 333, be State v. 736 point. There, illustrates that the defendant people separately and two other a were tried for the murder of single During victim. The defendant White was tried last. jurors jury potential selection, defense counsel told the testify opening in the trial. In the state’s the defendant would prosecutor jury statement, informed the that the defen testify in the trial one of the code dant had been called to for a fendants and had refused to do so. The defendant moved jury, prosecutor presence told mistrial. Out of the of the telling jury purpose in that the defen the court that his give story prior dant had in the trial was to dis refused to story exculpatory he tell at his own credit whatever would trial. The court denied the mistrial motion. Id. at 336-37. It stated that a refer- Court reversed. by prosecutor exercise of constitu- ence “ * * * rights ‘usually if it done in a tional is reversible error is
458 whereupon prejudicial
context
inferences
to the defendant
”
jury.’
(quoting
likely
by the
Id. at 341
are
to be drawn
505-06).
pointed
Smаllwood, 277 Or at
The court
out that
jury’s
prosecutor
deliberately
attention to the
had
drawn
right to remain silent. Given that
defendant’s exercise of the
“ ‘presumably harm-
context, the court held that there was a
”
(citation omitted).
ful effect.’ Id. at 342
jury
likely
Even where the context is such that the
is
guilt, the
to draw adverse inferences about the defendant’s
may
appropriate jury
prejudicial effect
cured
be
“[Jjurors
to have followed their
instruction. Id.
are assumed
overwhelming
they
probability that
instructions, absent an
if
Smith,
However,
to do
to that. It’s not evidence you any any place of the case or have this as evidence case.” Supreme that, Court if a trial court
tutional in a context to rise to an inference adverse to the defen- Supreme sufficient dant have we or the Court held that a curative instruction was remedy prejudice. to and, not, inference if whether guilt adverse about the trial court’s instruc- by was cured resulting prejudicе jury. tion to the rise Berry’s likely gave
We conclude that
statement
to an
inference of
The
was informed
guilt.
jury
adverse
counsel
in
to
right
response
defendant had invoked the
to a
incrim
potentially
asked whether he would submit
being
incidental
breath test.
statement was not
inating
Berry’s
more
to be
jury
likely
focusing
some other
that the
was
point
circumstances,
jury
under
a
argues,
on. As defendant
infer that a
arrested for DUII would not
likely
person
would
he or
concerned about fail
ask for an
unless
she was
attorney
it
words,
other
a
would
see
ing
jury
likely
the breath test —in
nothing
as a tacit admission of
Because
the context
guilt.
inference,
attention
from that
we
jury’s
away
diverted
it.4
unlikely
jury
cannot
that it is
drew
say
of the trial
turn,
therefore,
sufficiency
We
above,
noted
the court
court’s curative
instruction. As
that “a
has a
to call their law
jury
right
instructed the
person
make
inferences from
and
not
yer
you’re
supposed
have a
to do it. And so the State’s
they
since
** * The
of us are
bring
going
even
it
seven
supposed
up.
* *
imme
it
The court
the instruction
totally ignore
statement,
is a factor in
after
made the
which
diately
Smith,
instruction. See
310 Or
the effectiveness of curative
the trial court
cure
by
helps
at 27-28
intervention
(quick
Halford,
App
potential prejudice); cf.
660, 663,
invocation of the
to counsel did not
Thе dissent asserts that defendant’s
guilt
guilt
personal
that the inference of
is as tenuous
manifest a
belief
Smallwood,
it
in which the
Court affirmed
in this case as was
mistrial. 223 Or
at 471-73
court’s denial of the defendant’s motion for a
Smallwood,
charged
(Edmonds, J., dissenting).
murder.
the defendant was
with
victim,
deny having
he
that he had acted under
He did not
killed the
but
asserted
jury
was informed that he had
an extreme mental or emotional disturbance.
present
psychiatrist
he was examined
for
asked for his counsel to be
when
circumstances,
jury
likely
it
would
find
The that, dissent asserts unless we can demonstrate prejudice that no curative instruction could have cured the trial, to fair the trial court acted within granted the bounds of the discretion to it the law. 223 Or (Edmonds, dissenting). J., at 470 That is incorrect. We only need conclude—as we do—that the instruction that the actually gave prejudice. court was insufficient to cure the We speculate need not as to whether a different instruction would also have been insufficient. jury
The dissent further that, contends even if the request could infer that defendant’s to consult with his attor- ney guilt, nothing was an admission of “there is in the record majority’s jury that warrants the conclusion that the would have been unable to followthe trial court’s instruction in that regard.” (Edmonds, dissenting). J., Id. at 473 We do not doubt jurors obligations seriously. take their Nevertheless, we juror think it self-evident once has drawn the infer- tacitly guilt, ence that the defendant admitted it would be exceedingly disregard difficult to bоth the evidence that 5 Although object prosecutor’s defendant did not admonition to not “phone view, lawyers,” appropriate to mention calls or in our it is still to consider prosecutor’s part determining statement as of the context in whether adequate. court’s curative instruction was We would reach the same conclusion considering prosecutor’s statement, significant pros without but it is highlighted very just ecutor fact that the court had instructed the ignore. question, ultimately, whether, by deliberated, the time the sufficiently “unrung.” By making ringing adverse inference “bell” had been noticeable, prosecutor’s more admonition lessened the effectiveness ofthe cura tive instruction. importantly inference and—more
rise to that inference
itself.
—the
although
court “is in
sum,
it is true that the trial
complained-of
impact
position
of the
to assess the
the best
(if any) necessary to correct
and to select the means
incident
Wright,
resulting
any problem
8,12,
it,”
from State v.
its
true that a trial court abuses
it is also
produce
it selects a means that does
discretion when
Rogers,
legally
permissible,
Reversed *17 dissenting concurring part, in EDMONDS, J.,P. part. ruling regarding majoritys agree defen- the
I with disagree, suppress; I for the rea- however, dant’s motion to majority’s ruling that the trial court follow, with the sons a mistrial. defendant’s motion for erred when it denied response During police to a trial, a officertestified regarding prosecutor question how defendant from the responded to take an Intoxi- whether he wanted when asked “[h]e lyzer that defendant said that The testified test. officer making lawyer that decision.” The to call his before wanted arising prejudice majority defense to the concludes testimony remedied the could not be from the officer’s therefore, defendant was and, curative instruction court’s reasoning majoritys my view, In the denied a fair trial. applicable depart ofreview and the standard from conclusion controlling precedents. from motion issue is whether
The threshold objected during timely. the After defendant for a mistrial was examination, defendant cross-examined officer’s direct redirect examination. conducted witness, and the state transcript page objection cross- 126. Defendant’s at occurred transcript page begins redi- 137. The state’s at examination page transcript 146, and at commences rect examination transcript page tran- 148. At case-in-chief at state rested its objec- pages script page initial after defendant’s 149—23 on the comment moved for a mistrial “based tion—defendant “Okay. responded, lawyer.” That’s The trial court about the denied still.” ruling preserved
A
for mistrial is not
on motion
timely.
90,
Barone,
328 Or
unless it is made
State v.
(2000),
den,
cert
“[t]he time to move for a mistrial is when prejudicial occurs, act not after the incident has been allowed judge pass by, to caution to the for then it is too late for trial and mend the harm.” in this after The motion for a mistrial case occurred examination, after the state finished direct defendant completed the state cross-examination and redirect exami- respectively, nation and after the state rested its case-in- applicable law, for a mistrial chief. Under came too late to case motion
preserve Nevertheless, the claim of error. majority unprecedented exception appli- out an carves initially case It concludes that the state concedes cable law. “that intended to that defеndant wanted to court understood that defendant seek a mistrial after call his testified
lawyer deciding whether to take the breath majority’s follows, view, test.” 223 Or that it at 452. It in the necessary a mistrial was not for defendant to move for after the trial court its curative instruction and that the *18 motion that was made at the end of the state’s case was timely. majority respects. The errs in both majority purported the state’s con-
First, the reads The entire statement in the state’s cession out of its context. asserts, brief objected, defendant the trial court sustained
“When immediately instruction to objection gave curative discretion, showing in its mis- necessarily the — any cured required and that harm would be was believed that this instruction its instruction. If defendant insufficient, prosecutor’s was or that the admonition to ‘lawyer’ prejudicial, witness not to mention was he was obli- gated objection immediately to make that known Instead, he waited to move for a mistrial until the court. testimony conclusionof this witness’s state rested its casein chief.At that and until after the point it was toolate.” added.) (Emphasis argument, proper in its state’s when understood imposed obligation
context, is correct. The on defen- law immediately dant to make a motion for a mistrial after the trial court its curative instruction if he was dissatisfied so, with the effect of the instruction. Had he done the court give could have assessed the need to additional instructions any remaining prejudice grant to cure or Defen- mistrial. timely opportunity dant never afforded the trial court the policy affords, exercise its discretion that the of the law as fully Instead, discussed more the trial court could below. reasonably that defendant abandoned intention believe by remaining for a at that time silent and move mistrial proceeding to cross-examine officer. 335, 343,
Under
of his or her that is alleged identify its error with ensure that enough the court can clarity permit it to consider and correct the error immediately, if correction is warranted.” Id.
465 Wyatt applicable to the circumstances The rule of is for a mistrial defendant did not move in this case where gave immediately instruction, curative after the court its opportunity thereby depriving the trial court of the to exer governing any case and correct error. The cise its discretion unquestionably requires party an immediate to make law motion preserve for a mistrial in order to that issue
for
appeal.
e.g.,
P2d
See,
Walton,
223, 247-48, 809
State v.
311 Or
(1991)
regarding
(holding
a mistrial
tes
81
that a motion for
objection
timony
had sustained an
to which
court
untimely);
had testified
made after two other witnesses
was
(hold
(1990)
P2d
Montez,
564, 601,
309 Or
objection
pros
ing
timely
portion
made
that no
closing arguments
ecutor’s
when the defendant did move
for a mistrial at the time that the statements were made but
argu
responded
closing
instead
ment);
to the statements in his
(holding
summarily had it made denied a motion for a mistrial been
immediately unsupported by the There is no indi- record. cation from the record the trial court would about what have done had defendant made an immediate motion for a mis- ruling all knows, trial. For this court the court’s on defendant’s belated motion for mistrial was based on the responded, “Okay. lack of timeliness when the court That’s *20 importantly, denied at time—neither at the still.” More no objected time that he nor at the time that he explain for a moved mis- why trial —did defendant tive instruction was to the trial court its cura- inadequate any prejudice. to cure The ruling by the trial court followed the instruction to the was * * * prosecutor, again you’re going “if I hear that word again.” start all over ary Not once after the court its caution- prosecutor instruction and the resumed her examination object of defendant did defendant or ask to be heard out ofthe presence jury concerning until this issue after the state Additionally, rested. the sum total that defendant told the trial court when he did move for a mistrial at the end of the respectfully “I’ll was, state’s case move for a mistrial based on lawyer.” evident, the comment about the never informed the trial court at instruction was As is defendant why time its curative legally any prejudice. insufficient to cure In majority’s reasoning requires effect, the the trial court to be prescient concerning any purported inadequacy in the cura- tive instruction. reasoning, majority support posits
Also, of its
gives
“[w]hen
that
the court
a curative instruction without
waiting
anticipated
for an
mistrial motion to be made
expressly,
underlying purpose
preservation
of that
requirement
App
legal
is fulfilled.” 223 Or
at 454. There is no
support
majority’s ruling.
majority
for the
relies on State
App
Wilson,
460,
657,
den,
v.
(1993),
121 Or
855 P2d
rev
Also, argued therapy. Wilson objected that the victim was The defendant ground that there was no evidence that the
on objection. therapy. child was in The trial court overruled that objec- “[b]ecause held under We Lundbom overruled, tion his motion for a mistrial on the above ground timely.” In Lundbom, Or at 470-71. request give defendant did not the court to curative instruc- ground prosecu- tions or to declare a mistrial on the expert tor had referred to the defendant’s witness and coun- “pimps.” sel as However, he did move for a new on grounds prevailing party. ofmisconduct ofthe The trial court appeal, motion, and, denied the on we framed the issue as whether the trial court committed error it reversible when failing objections that motion after denied to sustain the prosecutor’s remarks. We reversed the defendant’s con- explaining, *21 trial, viction and remanded for a new court, therefore, “The trial should have sustained the objections. Instead, it objection overruled defendant’s first merely practical and noted his second. For all purposes, that action possibility foreclosed the that defendant would obtain curative instruction. Given the trial court’s earlier objections, failure to sustain defendant’s it committed grant reversible error when it failed to him a new trial. that, “Finally, argue it will not do to defendant because request mistrial, failed to curative instructions or a we should not responses consider the error. The trial court’s objection disposed made it obvious that it was not grant request. circumstances, either Given the we believe required that defense counsel did all that was of him. More- over, trial, counting defendant’s motion for a new the trial had opportunitiеs prejudice court three to correct the defendant. The adequately preserved.” error was at 462. holdings majority’s why
Our in Wilson illustrate reasoning Wilson, In in court case, is flawed. this as the trial objection. Wilson, In because
sustained
objection, the defendant’s
court sustained the defendant’s
ground
at a later time on that
was held
motion for a mistrial
untimely.
case,
In
occurred in this
to be
contrast to what
objection
the defendant’s
trial court in Wilson also overruled
argument
therapy.
prosecutor’s
that the victim was in
reasoning
Lundbom,
the Wilson court con-
Under the
practical purposes,
trial
that, for all
court’s over-
cluded
objection
possibility
ruling
foreclosed the
of
ofthe defendant’s
reasoning
giving
That
is
the trial court
a curative instruction.
give
inapplicable
a cura-
here where the trial court did fact
majority
simply wrong
Thus,
when it
tive instruction.
that
a court
concludes that Wilson and Lundbom hold
when
waiting
gives
an antici-
a curative instruction without
for
underlying
pated
expressly, the
mistrial motion to be made
purpose
preservation is satisfied.1
of
gives
majority’s ruling
when a trial court
The
—
waiting
anticipated
for an
mis-
a curative instruction without
required
made in
motion,
no mistrial motion is
to be
wrong
preserve
appeal
for an addi-
order to
the issue for
—is
Wyatt,
In this defendant’s belated motion for a mis- gave using trial rise to an inference that he was the motion as position unlikely a acquitted. in the that he fallback event be grant
The failure
mistrial
this case is
only
testimony
prejudi-
if the
reversible error
officer’s
was so
Sparks,
cial as to have denied defendant a fair trial. State v.
(2004).
298, 327,
If,
fact,
336 Or
a fair trial
470 timely,
Assuming
the
motion is
that defendant’s
explain why
majority proceeds
attempt
the triаl court
denying
it. In
of its discretion
exceeded the boundaries
properly,
important
mind-
it is
to be
to frame the issue
order
overarching
applied in this case
rule of law to be
ful that the
generally pos-
“[i]t
that a trial court
is
established
is that
well
proceedings
it.”
control the
sess
discretion to
broad
(2000).
Rogers,
A
300,
merely
party
his constitutional
because
asserts
during
of
trial; rather,
such an exercise
to a fair trial
authority
if
trial court
to determine
the
will be reviewed
granted
that have been
the
of discretion
exceeded
boundaries
Langley,
247, 257-60,
P2d 692
839
to it. State v.
(1992).
only
case
correct outcome in this
If there is
one
regarding
no curative
motion for a mistrial —that
defendant’s
prejudice
the
to defendant’s
could have cured
instruction
the trial court had no discretion
to a fair trial —then
Rogers,
deny
In those in the context of the helpful compare us, record before it is the circumstances of this case and a where of, case the state offers evidence or com- right on, ments the constitutional of a defendant to remain comparison apparent made, silent. When that is it is testimony of officer the that defendant “wanted call his lawyer” making before a decision about whether take an Intoxilyzer carry prejudicial test does not with it the same calling that effect the of to a attention defendant’s exercise of right Initially, to remain silent could have. the officer tes- objection “rights tified without that read to he defendant his consequences” administering Intoxilyzer and before test. by prosecutor inquiry The officer was made of defendant then asked if whether about he would take the Intoxilyzer replied test. affirmative, When the officer in the by prosecutor, [defendant] he was asked did “How respond?” Had made, a motion for a mistrial been found, court could in have the exercise ofits discretion, lawful juror guilt that no reasonable would have inferred based on light everyday particularly answer, common knowledge implied prоvisions about consent in ORS right 813.095 to 813.136 and the constitutional to consult lawyer. awith Supreme reasoning
The Court utilized similar Smallwood, P2d 503, 561 den, 600 cert (1977). US Smallwood, 849 had the state defen psychiatrist. by psychiatrist a dant examined The testified at that trial the defendant had asserted his to have coun present during sel the examination. The defendant moved for mistrial, denied. After the defendant which the court convicted, appeal, Supreme he On Court appealed. mistrial, trial court’s denial of the motion for
affirmed the that observing entirely [defendant] be dis-
“it seems natural would opposition trustful of the under such circumstances against advantage protection some unfair want being have The inference that could only taken of him. adverse want the possibly drawn be that defendant would be would actually he protection lawyer only if was sane psychiatrist fearful that it would be found out was that defendant was a contem- dissembling. We believe that sufficiently legal ofthe value of counsel porary jury is aware this tenuous inference.” not to draw Smallwood, Or at 508-09. knowledge majority inference of guilty as of his to counsel is from defendant’s invocation
draws rejected as the inference that the Court tenuous because Smallwood. However, majority, according morning, DUII at in the was arrested for 3:30 “defendant test, and was informed that asked to take a breath was there would be adverse refused[, consequences i]t if he why person in those cir- more difficult to see sober much deciding lawyer call a cumstances would want to take the test.” whether to *25 460 n That demonstrates reasoning
223 Or at 4. in Smallwood legal the court’s conclusion majority misses in this case. to the circumstances application its the that— Smallwood in turns on court’s conclusion holding the defen- inference could be drawn from even if an adverse that feigning of counsel he was right dant’s invocation out the that he would be found insanity and was fearful to examine him —a contem- psychiatrist prepared who inference its that of not draw because porary jury would under the Similarly, of counsel. awareness of the value legal exercise case, a trial court the proper of this circumstances of jury, find aware contemporary of discretion could that its defen- facing of the circumstances the counsel legal value that defendant wanted not the inference dant, would draw 473 lawyer had because he knew that he consumed more intoxi- permitted. Rather, than cants the law the desire consult the the with counsel under above circumstances is kind of person might merely action that a well reasonable undertake options deciding in an effort to understand his or her Intoxilyzer to take whether test. jury if
But, even the
could draw the inference from
request
attorney
consult with his
as an admis-
guilt,
jury
of
sion
the trial court
draw
told
not to
such an
jury, every person
inference. As the court told the
right
has the
lawyer
“you’re
to call
circumstances,
their
in such
supposed
they
to make
inference from
since
have a
“[t]he
going totally ignore
to do it” and
us are
seven of
nothing
Moreover,
it.”
majority’s
there
record that warrants the
that
conclusion
would have
unable
been
regard.
followthe trial court’s
in that
instruction
survey
Supreme
A
of the relevant
Court case law
involving
supports
similar considerations
that conclusion. In
(2006),
v. Bowen,
487,
State
340 Or
P3d
den,
135
272
cert
(2007),
US 1214,
549
made
was
prejudiced
Larson,
the
See also
ability testify.”). cases, In to the circumstances the above contrast prosecutor White, P2d 333, Or 736 552 the beginning of trial that the told the at the the testify trial but had had been called to in an earlier defendant Observing prosecutor’s conduct was refused do so. jury’s specifically attention, the the deliberate and directed at required. that a mistrial was See also State v. court concluded (1977) (holding 63, that mis- Jones, “prosecuting attorney, required where the well trial knowing proof pre- he had no that defendant has been that (as by viously rape indicated the record vari- convicted evidence), by persisted in offered him in ous other offenses including making effect, comments that and insinuations to clearly attempt get improper the by prosecution witness] alleged [the he that had statement ”). many it so Unlike in White and ‘done times before’ prosecu- suggestion Jones, no in this record that the there is inject improper evidence in record. tion intended request [to respond question “[h]ow did Indeed, he Intoxilyzer proper. test]” take assignment of error
Defendant also makes another involving in which he contends that different issue denying motion for a mistrial. I would hold court erred in under the the trial court did not abuse its discretion existing motion, it circumstances when denied not benefit the a further discussion of that issue would bench or bar. by summary, finding is no court there prosecution intentionally inadmissible introduced did make that conten- record, into the nor defendant
evidence only of a Rather, there is evidence tion to trial court. desiring response defendant the officer about truthful instruction with counsel combined with curative consult (to given by objection). the trial court which defendant had no Those circumstances make this case more like the cases in upheld which the denial of a motion for mistrial has been *27 than the cases in which the Court has reversed. The majority considering untimely errs first motion and by incorrectly construing governing Supreme then Court precedents regarding whether the trial court abused its dis- cretion.
For reasons, those I dissent.