State v. Hunt
| Citation | 442 P.3d 232,297 Or.App. 597 |
| Decision Date | 22 May 2019 |
| Docket Number | A165048 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. David Benjamin HUNT, Defendant-Appellant. |
| Court | Court of Appeals of Oregon |
297 Or.App. 597
442 P.3d 232
STATE of Oregon, Plaintiff-Respondent,
v.
David Benjamin HUNT, Defendant-Appellant.
A165048
Court of Appeals of Oregon.
Argued and submitted March 26, 2019.
May 22, 2019
Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Susan G. Howe, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
DeVORE, J.
Defendant appeals a judgment of conviction for possession and delivery of methamphetamine, ORS 475.894 and ORS 475.890(2). He assigns error to the denial of his motion for a mistrial. Defendant argues that his ability to have a fair trial was prejudiced by an officer's testimony that defendant "did not want to waive his rights,"
because the jury likely inferred that he chose not to speak with police because he was guilty. He argues that a curative jury instruction to disregard the testimony failed to cure the error. We agree, reverse, and remand.
The relevant facts are undisputed. Drug enforcement officers were investigating individuals suspected of drug dealing. Seeing a vehicle associated with the suspects, they followed it, saw traffic infractions, and initiated a traffic stop. Defendant sat in the front passenger seat. A detective asked several questions of defendant, and he answered. A drug-sniffing dog alerted officers to the odor of drugs, prompting a vehicle search. Police asked that defendant and his companions get out of the vehicle, and they hand-cuffed defendant and advised him of his rights. The search revealed 221.08 grams of methamphetamine in the rear compartment of the vehicle, as well as drug paraphernalia in various other locations. Defendant was placed under arrest and charged with four felony offenses.
At defendant's trial, the state examined Sergeant Geist, one of the officers who spoke to defendant at the scene of the traffic stop. The problematic testimony occurred in this exchange:
"[PROSECUTOR]: Okay. After you assisted in the search, what did you do?
"[SERGEANT]: I then interviewed the driver.
"[PROSECUTOR]: Did you interview the passenger?
"[SERGEANT]: I did, yes.
"[PROSECUTOR]: Okay. And who did you identify the passenger as?
"[SERGEANT]: [Defendant].
"[PROSECUTOR]: What happened with the interview with [defendant]?
"[SERGEANT]: There really wasn't an interview. I advised him of his constitutional rights. He indicated he wanted to talk to me, but did not want to waive his rights."
Defendant objected, and the trial court immediately took a short recess to meet with counsel. Defendant moved for a mistrial, arguing that he was prejudiced by the comment regarding the exercise of his constitutional right. The state disagreed that the comment warranted a mistrial, emphasizing that it had no intention of using the comment against defendant and noting that the court could address any potential harm with a curative jury instruction. The court denied defendant's motion. The court recognized that "it's very clear if you try to use an individual's exercising of his rights to remain silent against him, that it's a mistrial[,]" but the court found that the testimony "was vague as to whether or not he had invoked." The court gave defendant the option of a curative instruction, and defendant accepted. Defendant asked that the court "simply say an objection's been sustained. His last answer should be disregarded without saying what his answer was." The court reminded the state to "avoid any further inquiry" into defendant's conversation with the police leading up to the invocation of his rights. When the jury returned, the court instructed:
"THE COURT: Okay. Ladies and gentlemen, I've sustained an objection. The jury is instructed to disregard the last question and the last answer that the witness provided, not consider it any way in their deliberations."
The trial continued, and the jury convicted defendant of possession and delivery of methamphetamine.
Defendant appeals, assigning error to the trial court's denial of his motion for a mistrial. He contends that the jury was likely to infer that he exercised his right to remain silent because he was guilty—especially because he stopped speaking with police once they discovered drugs. Defendant claims that the jury instruction was insufficient to cure that prejudice.
The state argues that defendant failed to preserve his assignment of error because he "invited the error" by requesting the curative instruction and failing to object to it. In response, defendant contends that he preserved the issue by moving for a mistrial, notwithstanding his attempt to mitigate the damage of the testimony with a curative instruction, once the court had denied his mistrial motion.
As to the merits, the state contends that the improper testimony did not deny defendant a fair trial, because the jury was unlikely to have inferred much from the testimony. The state argued that the officer's statement was an isolated statement that the state did not exploit and that the statement was unclear about what particular rights defendant had invoked. Finally, the state argues that the curative instruction was an effective remedy.
At the outset, we must determine whether defendant preserved the asserted error. We previously addressed the very question of whether a "defendant's failure to object to the sufficiency of the curative instruction nullified his mistrial motion for the purposes of [an] appeal," concluding that it did not. State v. Veatch , 223 Or. App. 444, 454-55, 196 P.3d 45 (2008). We have held that, "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." Id. at 455, 196 P.3d 45. Consistent with that principle, we conclude that defendant's claim of error was preserved.
We turn to the merits of defendant's appeal. We review the denial of a motion for a mistrial for abuse of discretion, reversing only if the defendant was denied a fair trial. Id. (citation omitted). For a trial to be fair, the verdict must be "based on the evidence" rather than "factors external to the proof at trial." State v. Osorno , 264 Or. App. 742, 748, 333 P.3d 1163 (2014) (citation omitted). A prosecutor's or a witness's reference to the defendant having exercised a constitutional right—like the right to remain silent or to obtain counsel—may prejudice the defendant's ability to have a fair trial if it raises the impermissible inference that
the defendant did so because he or she was guilty.1 Veatch , 223 Or. App. at 455–56, 196 P.3d 45. When such prejudicial inferences are likely, "[t]here is no doubt that it is usually reversible error" to admit the testimony. State v. Smallwood , 277 Or. 503, 505-06, 561 P.2d 600, cert. den. , 434 U.S. 849, 98 S.Ct. 160, 54 L.Ed.2d 118 (1977).
Whether a defendant has been prejudiced by a reference to an invocation of his rights depends on the circumstances in which the reference was made and the likelihood that the jury will draw an inference of guilt. Veatch , 223 Or. App. at 456-57, 196 P.3d 45. Where the context makes the inference unlikely, the trial court does not abuse its discretion by denying a motion for a mistrial. Id. at 456, 196 P.3d 45. A reference may not be prejudicial if it is incidental to some other point that diverts the jury's focus, id. , or it is ambiguous and isolated without any elaboration, State v. Beisser , 258 Or. App. 326, 341, 308 P.3d 1121 (2013). However, declaration of a mistrial may be necessary when a discernable reference is made and nothing directs the jury's attention away from the adverse inference that it raises. Veatch , 223 Or. App. at 457, 196 P.3d 45.
The Supreme Court has determined that an adverse inference of guilt is unlikely when the testimony involves an isolated and indirect reference that is merely incidental to some other focal point of discussion. In State v. Larson , 325 Or. 15, 17, 933 P.2d 958 (1997), the defendant questioned a police officer on the stand about statements made by witnesses whom the officer had interviewed. The prosecutor raised multiple objections on hearsay grounds, all of which the trial court sustained. Id. at 17-21, 933 P.2d 958. On one occasion, the prosecutor suggested that the defendant call those witnesses to testify directly. Id. at 19, 933 P.2d 958. At a later time, the prosecutor complained that the defendant was "trying to get in objectionable
material by testifying to it himself" through
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