State v. Johnson

• Docket Number: A176792
• Decision Date: 28 December 2023
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. PETER JOHNSON, Defendant-Appellant.
• Court: Oregon Court of Appeals

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329 Or.App. 728

STATE OF OREGON, Plaintiff-Respondent,
v.
PETER JOHNSON, Defendant-Appellant.

A176792

Court of Appeals of Oregon

December 28, 2023

Submitted November 13, 2023.

Jackson County Circuit Court 19CR14005 David J. Orr, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Ingrid A. MacFarlane, Chief Deputy Defender, Offce of Public Defense Services, fled the brief for appellant.

Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General, fled the brief for respondent.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and Hadlock, Judge pro tempore.

Affirmed.

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[329 Or.App. 729] AOYAGI, P. J.

Defendant was convicted of two counts of first-degree sodomy, ORS 163.405, and two counts of first-degree sexual abuse, ORS 163.427. On appeal, he contends that the trial court erred in failing to declare a mistrial after a witness vouched for the complainant. Specifically, he argues that the court erred in denying his motion for a mistrial or, in the alternative, if that motion was made too late, that the court plainly erred by not declaring a mistrial sua sponte. We agree with the state that the court took appropriate corrective action to address the situation, including striking the testimony, giving a detailed curative instruction, and giving a final instruction that reiterated the jury's singular responsibility for making credibility determinations. The trial court did not abuse its discretion by denying a mistrial and instead taking the actions that it did. Accordingly, we affirm.

FACTS

In 2018, defendant and his three-year-old daughter, M, were living with a family friend, Stafford. Defendant went to California in December to visit his ailing sister and ended up staying there into 2019. While defendant was gone, M described sexual abuse by defendant to Stafford. Stafford contacted the authorities. Detective Reynolds subsequently interviewed M, who again described sexual abuse by defendant. Defendant was arrested in March 2019 upon his return to Oregon. Defendant made some incriminating statements in a police interview. He was later indicted, and the charges against him were tried to a jury.

During trial, the prosecution played a video of Reynolds's interview of M. After playing the video, the prosecutor asked Reynolds the following question, and Reynolds gave the following answer:

" [PROSECUTOR]: Based on your training and experience interviewing children, what stood out to you in regard to [M's] disclosure to you

"[REYNOLDS]: Some of the things that stood out to me was her reluctance to talk about it, the sensory stuff that she described, the-the things she talked about that

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[329 Or.App. 730] made me realize based on my training and experience that she was talking about something she actually experienced. For instance, if you heard her say that it happened almost-I think she said it happened every night.

"In my training and experience, when you talk to somebody that's been abused over and over and it's the same thing every time it tends to all blur together, they can't even single out a certain event unless something unusual happened during that event.

"And in this case with [M], she talked about somebody interrupting them and Dad having to pull his pants up and that just really stood out as something it was obvious to me she had truly experienced?

(Emphases added.)

Defense counsel did not object to the foregoing testimony, and Reynolds continued testifying for a few more minutes (five transcript pages), until the trial concluded for the day. After the jurors exited the courtroom, the court advised the prosecutor and defense counsel that it wanted to meet with them in chambers the next morning before the trial resumed. The court explained that "there may be a reason to strike some testimony," specifically Reynolds's answer to the above-quoted question, and that the court would play the recording in chambers when they met.

The next morning, the court met with the prosecutor and defense counsel as planned. Afterwards, the court put on the record that the meeting had occurred, including that its purpose was to discuss how to address the fact that Reynolds had given some testimony the prior day that violated the vouching rule. The court noted that it was "still not clear on whether the defense chose not to object to that as a strategic approach to in the hope of * * * arguing that the witness was biased." The court then asked defense counsel how he wanted to proceed now that he had spoken to his client. Defense counsel at that time moved for a mistrial. Describing the case as a pure credibility contest, defense counsel argued that a limiting instruction was not enough and that a mistrial was necessary, because it was "just such a substantial issue that I don't believe that he can have a fair and impartial jury just based on this credibility evidence."

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[329 Or.App. 731] The trial court initially stated that it did not believe that a mistrial was "on the table at this point because there was no objection at any point." Defense counsel responded that, under the case law, "the judge themselves is supposed to take care of it" even if the defense misses it. The court stated that it understood, then asked the state's position. The prosecutor agreed that Reynolds had "crossed the line into vouching" and requested that her answer be stricken and that a limiting instruction be given.

The court denied defendant's motion for a mistrial, reasoning that the testimony should not have come in but that it could be adequately addressed by striking it and giving curative instructions. The court concluded by stating, "It didn't appear to me that the way that that testimony came out had such a-had the kind of impact that does require a mistrial. I think it's a matter that can be cured through limiting instructions."

The court then called in the jury and stated as follows to the jury:

"All right. It looks like all the jurors-all the jurors are back and seated and

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