State v. Larson
| Decision Date | 06 March 1997 |
| Docket Number | C-3 |
| Citation | 325 Or. 15,933 P.2d 958 |
| Parties | STATE of Oregon, Respondent on Review, v. Lewis Edward LARSON, Jr., Petitioner on Review. CC 90-3674-; CA A76276; SC S43140. |
| Court | Oregon Supreme Court |
Jay Edwards, Salem, argued the cause and filed the petition for petitioner on review.
Thomas A. Balmer, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Kaye E. Sunderland, Assistant Attorney General.
Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, GRABER and DURHAM, JJ.
A grand jury indicted defendant for aggravated murder, ORS 163.095, in the deaths of his father and stepbrother. Defendant defended himself pro se, with the assistance of a court-appointed legal adviser. A jury convicted defendant of two counts of aggravated murder. He was sentenced on each count to life imprisonment without the possibility of release or parole, pursuant to ORS 163.105(1)(b). The trial court ordered the sentences to run consecutively.
Defendant appealed his convictions to the Court of Appeals, asserting nine assignments of error. The Court of Appeals affirmed the convictions. State v. Larson, 139 Or.App. 294, 296, 911 P.2d 953 (1996).
We allowed defendant's petition for review, but limited review to only two assignments of error. The first assignment is that the trial court erred when it denied defendant's motion for a mistrial based on a comment by the prosecutor about defendant's state and federal constitutional right to remain silent. The second assignment is that the trial court erred when it denied defendant's motion to exclude witnesses from the courtroom. For the reasons that follow, we affirm.
Both the Oregon Constitution and the United States Constitution guarantee a criminal defendant the right to remain silent. 1 In this case, the prosecutor commented about defendant's failure to testify, in the following circumstances.
Defendant was questioning a police officer on direct examination about statements made by witnesses whom the officer had interviewed. After sustaining a hearsay objection by the prosecutor, the court explained:
Soon thereafter, defendant asked the officer:
"Can you tell me where I was between the 18th and the 30th of January, 1990 and use that [report] to refresh your memory?"
The following exchange ensued:
"[PROSECUTOR]: I'm going to object to the testimony based on hearsay. It's "THE COURT: What are you getting at, [defendant]? What do you want to present to this jury?
from various witnesses. We've already had them on the stand.
Next, defendant questioned the police officer about a statement made by a now-deceased person whom the officer had interviewed. The statement pertained to a possible alibi for defendant. The prosecutor objected that the testimony relating what the deceased person had told the officer was hearsay. This exchange took place:
After further discussion about the state's hearsay objection, defendant again consulted with his legal advisers. Out of the jury's presence, the following colloquy then occurred:
Defendant did not object to the prosecutor's suggestion to give a curative instruction. When the jurors returned to the courtroom, the trial judge instructed them:
Defendant did not except to anything in that curative instruction.
The state argues that defendant's motion for a mistrial was untimely. This court has stated that a motion for a mistrial must be made immediately after the objectionable statement or conduct occurs. See, e.g., State v. Walton, 311 Or. 223, 248, 809 P.2d 81 (1991) ( ; State v. Shafer, 222 Or. 230, 235, 351 P.2d 941 (1960) ().
In this instance, defendant moved for a mistrial immediately after he finished discussing with the judge the hearsay rulings and after he conferred with his legal advisers. The discussion that took place after the prosecutor's disputed comment, but before defendant's motion for a mistrial, encompassed less than two pages of the trial transcript. In the period of time between the prosecutor's comment and defendant's motion, there was no significant lapse of time, no additional testimony, no recess, and no discussion of another issue. A motion for We now must determine whether the trial court committed an error when it denied defendant's motion for a mistrial.
mistrial made in those circumstances is timely.
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Cunningham v. Thompson
...particular, we reject defendant's categorical reasoning that giving the instruction can never have an adverse effect. In State v. Larson, 325 Or. 15, 933 P.2d 958 (1997), the Supreme Court explained that a prosecutor's comment regarding the defendant's failure to testify violates the consti......
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Callen v. State
...stated:"We agree that it is improper to admit evidence that a defendant invoked his or her constitutional rights. State v. Larson, 325 Or. 15, 23, 933 P.2d 958 (1997). However, such an impropriety rises to the level of reversible error only if the context in which the evidence is offered ma......
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State v. Harrell
...discretionary [297 P.3d 478]choice to deny a criminal defendant in a noncapital case the right to waive trial by jury); State v. Larson, 325 Or. 15, 26, 933 P.2d 958 (1997) (legal error for trial court to decline to exercise discretion when it has obligation to make discretionary decision).......
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State v. Veatch
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