Lead Opinion
This аppeal calls on us to determine whether the police denied defendant’s right to consult privately with counsel before deciding whether to take an Intoxilyzer test and to determine the adequacy of a curative instruction given to the jury by the trial court in response to a defense motion for a mistrial. We conclude that the police did not deprive defendant of a reasonable opportunity to obtain legal advice and, thus, that the trial court correctly denied his motion to suppress evidence related to the Intoxilyzer test. However, we also conclude that the curative instruction that the court gave was inadequate and, thus, that the court erred in denying defendant’s motion for a mistrial. Accordingly, we reverse.
Defendant was convicted of driving under the influence of intoxicants (DUII), ORS 813.010(1). He makes three assignments of error on appeal. We reject the first without discussion. In his second assignment, defendant challenges the denial of a motion for a mistrial made after the arresting officer testified that defendant had asked to speak with his attorney before deciding whether he would submit to an Intoxilyzer test. The trial court gave a curative instruction but denied the motion. In defendant’s third assignment of error, he contends that the trial court erred in denying his motion to suppress evidence related to the Intoxilyzer test. In support of that assignment, he asserts that the arresting officer did not leave the room while he left voice mail messages with his attorney and called his mother to ask if she could refer him to another attorney.
We take the facts pertinent to the motion to suppress from the record of the suppression hearing and the facts pertinent to the mistrial motion from the record of defendant’s trial. Defendant was arrested on suspicion of DUII and placed in the back of a police car. While the arresting officer was talking to another officer who had arrived to transport defendant to the Washington County Jail, defendant took his cell phone from his pocket and attempted to make a call. Officer Berry took the phone from him and then drove him to the jail. At the jail, Berry asked defendant if he would agree to take an Intoxilyzer test to determine his blood alcohol content. Defendant stated that he wanted to contact his family’s attorney first. Pursuant to jail policy, defendant’s hands remained handcuffed behind his back, so Berry dialed the telephone number and then placed the receiver on defendant’s shoulder so he could hold it between his shoulder and head. It was approximately 4:00 a.m., and the аttorney did not answer his telephone. Defendant left two voice mail messages asking him to return his call at the jail. Defendant then called his mother, asking her to refer him to another attorney. Berry testified at the suppression hearing, “It was my understanding that his mother was unaware of any other attorneys that the family used.” Berry offered to let defendant look for another attorney in the telephone book, but, Berry testified, defendant “didn’t desire to do that.”
After defendant left the messages for his attorney, Berry waited half an hour for the attorney to call back. When he did not return the call, Berry then told defendant that he needed a decision as to whether defendant would agree to proceed with the Intoxilyzer test. Defendant initially remained silent, which Berry took as a refusal to take the test. He printed a “refusal card” from the Intoxilyzer machine. Moments later, defendant stood up and walked over to the machine, so Berry decided to let him submit a sample. Defendant blew into the mouthpiece, but he did not blow hard enough for the machine to get a sample. Berry recorded his attempt as another refusal.
At defendant’s trial, before the jury was selected, defense counsel, the prosecutor, and the trial court discussed pretrial rulings that a different judge had made earlier. Defense counsel stated that the judge had ruled that there should be “no mention of [defendant’s] telephone calls whatsoever because that’s invocation of a right * * *. And the second prong was no mention of witness Gerry Chase, who’s a lawyer, because the right to call a lawyer is also part of the counsel right * * The prosecutor stated that she had a different recollection of the pretrial ruling, acknowledging that “we can’t say he was a lawyer,” but contending that the judge had ruled that evidence about calls could come in. The court ruled that there could be no mention of telephone calls unless the defense opened the door to such evidence and that, even then, “[w]e don’t need to know who it was to * * *.”
In her opening statement to the jury, the prosecutor stated that defendant had attempted to use his cell phone in the back of the police car. Defense counsel interrupted, stating, “Your Honor, I have a matter for the court.” The court responded, “No, I know what it is and it’s fine.” After opening statements had concluded, the jury was sent out of the courtroom. Defense counsel stated that, “for the record,” he was moving for a mistrial. The court interjected that it understood that the motion was based on the prosecutor’s mention of the cell phone, adding, “[I]t’s close, but I knew that’s [what] you were going to do and I would overrule it.”
In its case-in-chief, the state called Berry to testify. After he testified about defendant’s arrest and transport to the jail, his direct examination continued as follows:
“Q. Okay. Did you — first of all, are you trained to operate the Intoxilyzer?
“A. Yes.
“Q. Okay. While at the station, did you read the defendant his rights and consequences?
“A. Yes.
“Q. Did you ask him if he would take the test?
“A. Yes, I did.
“Q. How did he respond?
“A. He wanted to call his lawyer before making that decision.
“[Defense counsel]: Objection. I have a matter for the court.
“THE COURT: Sustained. And if I hear that word again—
“[Prosecutor]: Yeah.
“THE COURT: —you’re going to start all over again.
“[Prosecutor]: Right. And, officer, we talked about this.
“THE COURT: To be real honest with you, a person has a right to call their lawyer and you’re not supposed to make any inferences from that, since they have a right to do it.
“And so the State’s not even supposed to bring it up. They brought it up. The seven of us are going to totally ignore it, though they couldn’t. Go ahead.
“[Prosecutor]: Okay. * * * Officer, just so you understand. We talked about this outside. Just answer the questions I ask. Okay?
“[Berry]: All right.
“[Prosecutor]: No talk of—
“[Berry]: Okay.
“[Prosecutor]: —phone calls or lawyers. So, you asked — at some point you asked the defendant would he take a brеath test?
“A. Yes.”
Berry went on to testify that defendant did not answer and that he initially printed a “refusal card” but then allowed defendant to give a breath sample. Berry stated that he recorded the attempt as a refusal because, in his view, defendant had not given “an honest effort.”
After Berry finished testifying, the state rested its case, and the jury was excused for lunch. Defendant then moved for a mistrial “based on the comment about the lawyer.”
Several witnesses testified in defendant’s behalf, including defendant himself. Defendant testified that he had consumed one and a half beers with lunch in the early afternoon but had no more alcohol between then and the time he was arrested more than 12 hours later. The jury ultimately found defendant guilty of DUII.
On appeal, defendant challenges the denial of his suppression and mistrial motions. We begin with the motion to suppress. Defendant renews his challenge to the introduction of the evidence related to the Intoxilyzer test. He contends that Berry should have given him privacy both when he left the voice mail messages for his attorney and when he called his mother to ask her to refer him to another attorney.
Defendant reads too much into that phrase in Durbin. Read in isolation, the phrase “to seek legal advice” could be understood to include attempting to locate or contact an attorney. However, the context in which the court used the phrase in Durbin demonstrates that “seeking advice” means actually conferring with counsel. The issue that defendant raises here was not even in play in Durbin. Rather, the only questions before the court were (1) whether “the right to consult privately with counsel is inherent in the right to counsel that Article I, section 11, provides”; (2) whether “the police must afford an arrested driver the opportunity to consult privately with counsel, even if the arrested driver does not make an independent request to consult privately”; and (3) whether the police are justified in limiting the “right to consult privately” if the observation рeriod has already begun. Id. at 187-88. Whether the right extends to attempting to locate and establish contact with an attorney was simply not at issue.
Moreover, in answering the first question, the court stated that confidentiality is necessary to encourage the full and frank communication between attorneys and their clients that is essential to the rendition of appropriate legal advice and thus to the right to counsel. Id. at 190 (citing State v. Jancsek,
Consistently with Durbin, we conclude that defendant’s reasonable opportunity to consult with counsel was not violated because Berry remained in the room while defendant left messages and asked his mother for a referral. Indeed, as we noted in State v. Matviyenko,
We turn to defendant’s mistrial motions. Defendant separately assigns error to the denial of his motion based on the prosecutor’s reference to the cell phone call in her opening statement and his motion based on Berry’s reference to his invocation of the right to counsel. Because it is dispositive, we begin and end with the latter motion.
At the outset, we must determine whether the asserted error is preserved. The state concedes that the trial cоurt understood that defendant intended to seek a mistrial after Berry testified that defendant wanted to call his lawyer before deciding whether to take the breath test.
We agree with the state, in some respects. 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. The court’s response shows that it understood counsel’s intent: It immediately threatened to grant a mistrial, warning the prosecutor that she was “going to start all over again” if defendant’s invocation of the right to counsel was mentioned again, and it instructed the jury to disregard the testimоny. Furthermore, when defendant expressly made the motion after Berry finished testifying, the court stated, “That’s denied still.” (Emphasis added.) We agree with the state that the trial court understood that defendant intended to move for a mistrial.
We do not agree, however, that defendant made the actual motion too late to preserve the issue for appeal. “In ruling on a motion for a mistrial, a trial court must decide whether to grant the motion, to cure the effect of inappropriate conduct or testimony by giving a proper instruction instead, or to do nothing at all.” State v. Evans,
In this case, when defense counsel asserted that he had “a matter for the court,” the court understood what the “matter” was. As the dissent points out, a trial court is vested with broad discretion in controlling
The dissent contends that defendant was required to make an immediate motion for a mistrial despite the fact that the court gave a curative instruction.
The dissent asserts that another preservation principle is at play here, arguing that defendant used his motion for a mistrial as a fallback position in the event that he was not acquitted.
In short, we conclude that, with respect to Berry’s testimony, defendant’s mistrial motion does not run afoul of preservation requirements.
We next consider the state’s contention that dеfendant’s failure to object to the sufficiency of the curative instruction nullified his mistrial motion for purposes of this appeal. We conclude that it did not. Neither we nor the Supreme Court have ever held that, when a trial court gives a curative instruction in response to objectionable testimony, the defendant must object to the sufficiency of the instruction in order to be permitted to raise on appeal an otherwise properly preserved mistrial motion based on that testimony. In short, if the court chooses to give a curative instruction rather than declare a mistrial, any error in denying a preserved mistrial motion remains preserved regardless of whether the defendant objected to the sufficiency of the instruction. See State v. Bowen,
We review the denial of a motion for a mistrial for abuse of discretion, and we will not reverse a conviction on that basis unless the defendant was denied a fair trial. State v. Smith,
The context in which a reference is made to the defendant’s invocation of a constitutional right may be such that the jury’s attention is directed away from the adverse inference of guilt based on the invocation. Where the context makes such an inference unlikely, the trial court does not abuse its discretion if it denies the defendant’s motion for a mistrial. State v. Williams,
“About the only thing that the defendant ever said in response to this whole eрisode was made the morning after the apartment was searched. That was somewhere around June 26th. And that took place because Ray Broderick, an investigator for the district attorney’s office, returned after executing the warrant the night before because he left his flashlight there. Defendant was the only one there and he said, ‘Cinda took your flashlight and she’ll try and give it back to you. She’s got it at her work.’ Broderick says fine, he’s getting ready to leave and the defendant keeps saying, ‘Hey, what’s the big deal? What’s the big deal? What’s going on? What’s the big deal? What’s this all about?’ Broderick says, ‘Listen, you know, somebody said, or you said that you wanted to talk to your attorney first and I don’t want to talk to you about the incident.’ He kept saying, ‘What’s the big deal? What’s going on?’ So Broderick said Well, the big deal is you showing these pictures to Nancy, taking pictures of Nancy, and the other things that Nancy has said.’ His response was, ‘Hey, big deal. She wanted to take her clothes off. So what?’ Well, that’s why we’re here.’ ”
On appeal, we noted that “[t]he context in which the comment arose indicate[d] that [the] defendant was trying to get the detective to discuss the matter, and the reference merely stated the detective’s reply.” Id. at 898. In other words, the jury’s attention wаs likely focused on the defendant’s attempt to discuss the matter rather than on his earlier invocation of the right to counsel. We concluded that “the comment was not made for the purpose of drawing attention to [the] defendant’s exercise of his right to counsel,” and that it “did not occur in a context where inferences prejudicial to [the] defendant were likely to be drawn by the jury.” Id.
Where the context is such that the jury’s attention is not directed away from the inference of guilt that the defendant’s invocation of a constitutional right may give rise to, a mistrial may be necessary. State v. White,
The Supreme Court reversed. It stated that a reference by a prosecutor to a defendant’s exercise of constitutional rights is “ ‘usually reversible error * * * if it is done in a context whereupon inferences prejudicial to the defendant are likely to be drawn by the jury.’ ” Id. at 341 (quoting Smallwood,
Even where the context is such that the jury is likely to draw adverse inferences about the defendant’s guilt, the prejudicial effect may be cured by an appropriate jury instruction. Id. “[Jjurors are assumed to have followed their instructions, absent an overwhelming probability that they would be unable to do so.” Smith,
For example, the trial court in White instructed the jury that the defendant’s decision not to testify was not probative and that
“in no way are you to take that into account or in any way to discuss or consider what [the prosecutor] has said in regard to that. It’s not evidence in this case. It’s not to be taken by you as any evidence of the case or have any placе in this case.”
The question in this case, then, is whether the context of Berry’s statement that defendant invoked the right to counsel was such that the jury was unlikely to have drawn an adverse inference about defendant’s guilt and, if not, whether the resulting prejudice was cured by the trial court’s instruction to the jury.
We conclude that Berry’s statement likely gave rise to an adverse inference of guilt. The jury was informed that defendant had invoked the right to counsel in response to being asked whether he would submit to a potentially incriminating breath test. Berry’s statement was not incidental to some other point that the jury was more likely to be focusing on. As defendant argues, under the circumstances, a jury would likely infer that a person arrested for DUII would not ask for an attorney unless he or she was concerned about failing the breath test — in other words, a jury would likely see it as a tacit admission of guilt. Because nothing in the context diverted the jury’s attention away from that inference, we cannot say that it is unlikely that the jury drew it.
The dissent asserts that, unless we can demonstrate that no curative instruction could have cured the prejudice to defendant’s right to a fair trial, the trial court acted within the bounds of the discretion granted to it by the law.
The dissent further contends that, even if the jury could infer that defendant’s request to consult with his attorney was an admission of guilt, “there is nothing in the record that warrants the majority’s conclusion that the jury would have been unable to follow the trial court’s instruction in that regard.” Id. at 473 (Edmonds, J., dissenting). We do not doubt that jurors take their obligations seriously. Nevertheless, we think it self-evident that, once a juror has drawn the inference that the defendant tacitly admitted guilt, it would be exceedingly difficult to disregard both the evidence that gavе rise to that inference and — more importantly — the inference itself.
In sum, although it is true that the trial court “is in the best position to assess the impact of the complained-of incident and to select the means (if any) necessary to correct any problem resulting from it,” State v. Wright,
Reversed and remanded.
Notes
Defendant does not argue that Berry violated his right to counsel by remaining in the room without telling defendant that, if he contacted counsel, Berry would leave the room. See State v. Matviyenko,
In its brief, the state notes that, “[w]hen defendant objected, the trial court sustained his objection and immediately gave a curative instruction to the jury— necessarily showing that, in its discretion, mistrial was not required and that аny harm would be cured by its instruction.”
Although both we and the Supreme Court have stated that the “presumably prejudicial effect” of an improper comment can be cured by an appropriate jury instruction, see White,
The Supreme Court held that, under the circumstances, the instruction was adequate:
“Here, as stated above, immediately following the prosecutor’s objectionable question, the trial court gave a curative instruction to the jury to disregard any convictions that were not within the permissible 15-year period. That instruction was significantly stronger than the statement given in White', by contrast, it included an explanation of the sole purpose for admitting prior convictions and the reason why the reference to defendant’s manslaughter conviction was to be disregarded. Additionally, the trial court expressly instructed the jury that defendant’s prior convictions could not he used as evidence of his propensity to commit the crimes charged in the present case. ‘[Jlurors are assumed to have followed their instructions, absent an overwhelming probability that they would be unable to do so.’ Moreover, on the facts of this record, it is difficult to say that the prosecutor’s behavior, though careless, was a deliberate attempt to admit improper evidence.
“Finally, the admissibility principle that the prosecutor’s actions offended here involved an evidentiary rule and not a constitutional right, as in White. Thus, the ‘presumably hаrmful effect’ of the prosecutor’s conduct in this case was not of such magnitude that we can conclude that a proper curative instruction could not ameliorate any potential prejudice.”
Id. at 510-11 (citation omitted).
In no case of which we are aware involving an improper reference to a constitutional right in a context likely to give rise to an inference adverse to the defendant have we or the Supreme Court held that a curative instruction was sufficient to remedy the prejudice.
The dissent asserts that defendant’s invocation of the right to counsel did not manifest a personal belief in his guilt and that the inference of guilt is as tenuous in this case as it was in Smallwood, in which the Supreme Court affirmed the trial court’s denial of the defendant’s motion for a mistrial.
Although defendant did not object to the prosecutor’s admonition to Berry not to mention “phone calls or lawyers,” in our view, it is still appropriate to consider the prosecutor’s statement as part of the context in determining whether the trial court’s curative instruction was adequate. We would reach the same conclusion without considering the prosecutor’s statement, but it is significant that the prosecutor highlighted the very fact that the court had just instructed the jury to ignore. The question, ultimately, is whether, by the time the jury deliberated, the adverse inference “bell” had been sufficiently “unrung.” By making the ringing more noticeable, the prosecutor’s admonition lessened the effectiveness of the curative instruction.
Concurrence Opinion
concurring in part, dissenting in part.
I agree with the majoritys ruling regarding defendant’s motion to suppress; however,
During trial, a police officer testified in response to a quеstion from the prosecutor regarding how defendant responded when asked whether he wanted to take an Intoxi-lyzer test. The officer testified that defendant said that “[h]e wanted to call his lawyer before making that decision.” The majority concludes that the prejudice to the defense arising from the officer’s testimony could not be remedied by the court’s curative instruction and, therefore, defendant was denied a fair trial. In my view, the majoritys reasoning and conclusion depart from the applicable standard of review and from controlling precedents.
The threshold issue is whether defendant’s motion for a mistrial was timely. After defendant objected during the officer’s direct examination, defendant cross-examined the witness, and the state conducted redirect examination. The objection occurred at transcript page 126. Defendant’s cross-examination begins at transcript page 137. The state’s redirect examination commences at transcript page 146, and the state rested its case-in-chief at transcript page 148. At transcript page 149 — 23 pages after defendant’s initial objection — defendant moved for a mistrial “based on the comment about the lawyer.” The trial court responded, “Okay. That’s denied still.”
A ruling on a motion for mistrial is not preserved unless it is made timely. In State v. Barone,
The motion for a mistrial in this case occurred after the state finished direct examination, after defendant and the state completed cross-examination and redirect examination respectively, and after the state rested its case-in-chief. Under the applicable case law, the motion for a mistrial came too late to preserve the claim of error. Nevertheless, the majority carves out an unprecedented exception to the applicable case law. It initially concludes that the state concedes “that the trial court understood that defendant intended to seek a mistrial after Berry testified that defendant wanted to call his lawyer before deciding whether to take the breath test.”
First, the majority reads the state’s purported concession out of its context. The entire statement in the state’s brief asserts,
“When defendant objected, the trial court sustained his objection and immediately gave a curative instruction to the jury — necessarily showing that, in its discretion, mistrial was not required and that any harm would be cured by its instruction. If defendant believed that this instruction was insufficient, or that the prosecutor’s admonition to the witness not to mention ‘lawyer’ was prejudicial, he was obligated to make that objection known immediately to the court. Instead, he waited to move for a mistrial until the conclusion of this witness’s testimony and until after the state rested its case in chief. At that point it was too late.”
(Emphasis added.)
The state’s argument, when understood in its proper context, is correct. The law imposed an obligation on defendant to make a motion for a mistrial immediately after the trial court gave its curative instruction if he was dissatisfied with the effect of the instruction. Had he done so, the court could have assessed the need to give additional instructions
Under State v. Wyatt,
The rule of Wyatt is applicable to the circumstances in this case where defendant did not move for a mistrial immediately after the court gave its curative instruction, thereby depriving the trial court of the opportunity to exercise its discretion and correct any error. The governing case law unquestionably requires a party to make an immediate motion for a mistrial in order to preserve that issue for appeal. See, e.g., State v. Walton,
Nonetheless, the majority reasons,
“In this case, when defense сounsel asserted that he had ‘a matter for the court,’ the court understood what the ‘matter’ was. * * * Rather than giving defendant an immediate opportunity to make his mistrial motion outside the presence of the jury, the court here took the actions that it believed to be appropriate in response to the offending testimony: It warned the prosecutor of the possibility of a mistrial and gave the jury a curative instruction. Had defense counsel expressly moved for a mistrial at the outset, rather than signaling his intent by merely saying, ‘I have a matter for the court,’ there is no reason to believe that the court’s response would have been any different. Under the circumstances, defendant should not be penalized on preservation grounds because the court chose to respond to the situation as it did.”
The majority’s speculation that the court would have summarily denied a motion for a mistrial had it been made immediately is unsupported by the record. There is no indication from the record about what the trial court would have done had defendant made an immediate motion for a mistrial. For all that this court knows, the court’s ruling on defendant’s belated motion for a mistrial was based on the lack of timeliness when the court responded, “Okay. That’s denied still.” More importantly, at no time — neither at the time that he objected
Also, in support of its reasoning, the majority posits that “[w]hen the court gives a curative instruction without waiting for an anticipated mistrial motion to be made expressly, the underlying purpose of that preservation requirement is fulfilled.”
“defendant’s motion for a mistrial at a later time on that ground was untimely. It is incumbent on defendant to move for a mistrial at the time that the allegedly improper remarks were made. Accordingly, we decline to consider defendant’s argument.”
Also, during closing arguments, the prosecutor in Wilson argued that the victim was in therapy. The defendant objected on the ground that there was no evidence that the child was in therapy. The trial court overruled that objection. We held under Lundbom that “[b]ecause defendant’s objection was overruled, his motion for a mistrial on the above ground was timely.”
“The trial court, therefore, should have sustained the objections. Instead, it overruled defendant’s first objection and merely noted his second. For all practical purposes, that action foreclosed the possibility that defendant would obtain a curative instruction. Given the trial court’s earlier failure to sustain defendant’s objections, it committed reversible error when it failed to grant him a new trial.
“Finally, it will not do to argue that, because defendant failed to request curative instructions or a mistrial, we should not consider the error. The trial court’s responses to his objection made it obvious that it was not disposed to grant either request. Given the circumstances, we believe that defense counsel did all that was required of him. Moreover, counting defendant’s motion for a new trial, the trial court had three opportunities to correct the prejudice to defendant. The error was adequately preserved.”
Our holdings in Wilson illustrate why the majority’s reasoning is flawed. In this case,
The majority’s ruling — that, when a trial court gives a curative instruction without waiting for an anticipated mistrial motion, no mistrial motion is required to be made in order to preserve the issue for appeal — is wrong for an additional reason. In Wyatt,
In this case, defendant’s belated motion for a mistrial gave rise to an inference that he was using the motion as a fallback position in the event that he was unlikely to be acquitted. The failure to grant a mistrial in this case is reversible error only if the officer’s testimony was so prejudicial as to have denied defendant a fair trial. State v. Sparks,
Assuming that defendant’s motion is timely, the majority proceeds to attempt to explain why the trial court exceeded the boundaries of its discretion in denying it. In order to frame the issue properly, it is important to be mindful that the overarching rule of law to be applied in this case is that “[i]t is well established that a trial court generally possess broad discretion to control the proceedings before it.” State v. Rogers,
In general, it is improper to admit evidence of a defendant’s invocation of constitutional rights. State v. Larson,
In analyzing those questions in the context of the record before us, it is helpful to compare the circumstances of this case and a case where the state offers evidence of, or comments on, the constitutional right of a defendant to remain silent. When that comparison is made, it is apparent that the testimony of the officer that defendant “wanted to call his lawyer” before making a decision about whether to take an Intoxilyzer test does not сarry with it the same prejudicial effect that the calling of attention to a defendant’s exercise of the right to remain silent could have. Initially, the officer testified without objection that he read to defendant his “rights and consequences” before administering the Intoxilyzer test. The officer was then asked by the prosecutor if inquiry was made of defendant about whether he would take the Intoxilyzer test. When the officer
The Supreme Court utilized similar reasoning in State v. Smallwood,
“it seems entirely natural that [defendant] would be distrustful of the oрposition under such circumstances and want to have some protection against unfair advantage being taken of him. The only adverse inference that could possibly be drawn would be that defendant would want the protection of his lawyer only if he was actually sane and was fearful that it would be found out by the psychiatrist that defendant was dissembling. We believe that a contemporary jury is sufficiently aware of the value of legal counsel not to draw this tenuous inference.”
Smallwood,
The inference of guilty knowledge that the majority draws from defendant’s invocation of his right to counsel is as tenuous as the inference that the Supreme Court rejected in Smallwood. However, according to the majority, because
“defendant was arrested for DUII at 3:30 in the morning, was asked to take a breath test, and was informed that there would be adverse consequences if he refused[, i]t is much more difficult to see why a sober person in those circumstances would want to call a lawyer before deciding whether to take the test.”
But, even if the jury could draw the inference from defendant’s request to consult with his attorney as an admission of guilt, the trial court told the jury not to draw such an inference. As the court told the jury, every person has the right to call their lawyer in such circumstances, “you’re not supposed to make any inference from that, since they have a right to do it” and “[t]he seven of us are going to totally ignore it.” Moreover, there is nothing in the record that warrants the majority’s conclusion that the jury would have been unable to follow the trial court’s instruction in that regard.
A survey of the relevant Supreme Court case law involving similar considerations supports that conclusion. In State v. Bowen,
In State v. Farrar,
In contrast to the circumstances in the above cases, the prosecutor in State v. White,
Defendant also mаkes another assignment of error involving a different issue in which he contends that the trial court erred in denying his motion for a mistrial. I would hold that the trial court did not abuse its discretion under the existing circumstances when it denied defendant’s motion, and a further discussion of that issue would not benefit the bench or bar.
In summary, there is no finding by the trial court that the prosecution intentionally introduced inadmissible evidence into the record, nor did defendant make that contention to the trial court. Rather, there is only evidence of a truthful response by the officer about defendant desiring to consult with counsel combined with the curative instruction given by the trial court (to which defendant had no objection). Those circumstances make this case more like the cases in which the denial of a motion for mistrial has been upheld than the cases in which the Supreme Court has reversed. The majority errs by first considering an untimely motion and then by incorrectly construing the governing Supreme Court precedents regarding whether the trial court abused its discretion.
For those reasons, I dissent.
The giving of a curative instruction without waiting for an anticipated mistrial motion does not preclude a defendant from asserting a motion for a mistrial despite the instruction. Under the facts of this case, defense counsel verbally manifested his agreement with the trial court’s sustaining of his objection and made no further objection after the court cautioned the jury. Nothing in this record suggests that defendant could not have voiced a further objection to the trial court’s cautionary instruction or moved for a mistrial as he apparently intended when he told the trial court at an earlier point in time, “I have a matter for the court.” Indeed, defendant had moved for a mistrial on a different ground earlier in the trial, so it is apparent that he was familiar with that procedure.
The majority also asserts that “[i]t seems unlikely that counsel was waiting to see how devastating his cross-examination of Berry would be to the state’s case before deciding whether to make the motion.”