State v. Osorno

• Decision Date: 13 August 2014
• Docket Number: 120444112,A151949.
• Citation: 333 P.3d 1163,264 Or.App. 742
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Kekainani OSORNO, aka Kekaimanni Osorono, Defendant–Appellant.
• Court: Oregon Court of Appeals

264 Or.App. 742

333 P.3d 1163

STATE of Oregon, Plaintiff–Respondent,

v.Kekainani OSORNO, aka Kekaimanni Osorono, Defendant–Appellant.

120444112; A151949.

Court of Appeals of Oregon.

Submitted April 29, 2014.

Decided Aug. 13, 2014.

Peter Gartlan, Chief Defender, and David Sherbo–Huggins, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.

Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.

GARRETT, J.

A jury convicted defendant of driving under the influence of intoxicants (DUII), reckless driving, and failure to perform the duties of a driver when property is damaged. At trial, the prosecutor elicited testimony regarding defendant's invocation of her right to remain silent, despite a pretrial ruling that such evidence was inadmissible. The trial court denied defendant's motions for a mistrial and for a new trial based on its conclusion that, although the elicitation of the testimony was clearly improper, it did not prejudice defendant's right to a fair trial. We agree with defendant that the trial court erred in denying defendant's motion for a mistrial. We reverse and remand.

The facts pertinent on appeal are not disputed. A green sport-utility vehicle (SUV) collided with a vehicle driven by Aleksandra Dikova. When the SUV immediately left the scene, Dikova called the police and described the SUV that had hit her. A short time later, police observed an SUV matching that description in a convenience store parking lot. As Sergeant Snyder pulled his patrol car into the parking lot, defendant, who was standing near the SUV, began walking away. Snyder called out to her several times, but defendant continued to walk away. Snyder took hold of defendant and walked her to his patrol car. Defendant told Snyder that the SUV belonged to her, but that her friend had been driving it and had left on foot. Snyder handcuffed defendant and placed her in his patrol car.

Police transported Dikova's brother, Vasiliy Dikov, who had been riding with Dikova at the time of the collision, to the parking lot to determine if Dikov could identify defendant as the driver of the SUV. Dikov had told police that he believed the SUV's driver was either Filipino or African American. When Dikov arrived at the parking lot, police removed defendant, still handcuffed, from the back of the patrol car, to face Dikov. Dikov said something to the effect of, “that is the person that hit us.” He told police that he was 100 percent sure. The police told Dikov that they were “pretty sure” defendant had been the driver.

Defendant was taken to a police station, where Officer Martinson administered field sobriety tests. Defendant failed the tests. She submitted to a breath test, which revealed a blood-alcohol-content (BAC) level of .14. Martinson asked defendant “when she stopped drinking,” to which defendant replied, “Don't want to say anything incriminating.”

Prior to trial, defendant sought to exclude any evidence that she had invoked her right against self-incrimination during her interview with Martinson. The trial court agreed that “that would not be admissible.”

At trial, however, the following exchange occurred during the state's redirect examination of Martinson:

“[PROSECUTOR]: And did she say when she started drinking?

“[MARTINSON]: She stated at 10:00 a.m.

“[PROSECUTOR]: Did she say when she stopped drinking?

“[MARTINSON]: She told me, ‘Don't want to say anything incriminating.’ ”

Defendant objected, and counsel met immediately with the trial judge in chambers, where defendant moved for a mistrial. Following that conference, the court instructed the jury as follows:

“[THE COURT]: Ladies and gentlemen, I would instruct you to disregard the last statement that was made, that it is not information that you can consider in deciding this case. Okay? So if you wrote anything down, cross it off your notes and you must disregard it.”

Subsequently, outside the presence of the jury, the trial court allowed defendant to make a record of her in-chambers motion for a mistrial:

“[THE COURT]: We did have a discussion before trial started in which [defendant] specifically moved in limine to exclude any discussion or any such answer as an indication of the defendant's right to—right to remain silent. It seemed to me the State agreed at that time, and as to the Court, that that would be an improper—or could be an improper indication of the right to counsel but the State was not going to go there, in any event, so now * * * [defendant] did move for mistrial in chambers.

“ * * * *

“[DEFENSE COUNSEL]: I think that the district attorney knew exactly which statement I was talking about. I specifically told her, this is the statement in the report, right here, that I don't believe should be allowed into evidence. I don't think anybody should be able to testify to that because it's her right to invoke her constitutional [rights] under the Oregon and U.S. Constitutions, the right to remain silent and not to answer questions and to invoke.

“ * * * *

“Letting it in in front of the jury is—it should be a mistrial. The jury's heard it. We took about a minute or two in chambers right after the statement came out to talk about it so they were sitting here in silence without the Judge or the attorneys in the courtroom, so obviously they knew this was significant; came back in, and there was an instruction saying, ‘Don't’—‘You know, disregard that statement.’ The bell is rung. You cannot unring the bell, and the case law supports that. I think this is a mistrial. I think it's clear.

“ * * * *

“[PROSECUTOR]: This was accidental. I did not intentionally want a statement to come in that had been ruled to be inadmissible, and so I would ask that we do not have a mistrial, that the curative instruction in this case is sufficient to caution the jury that they're not supposed to-they're supposed to disregard this statement and to not consider it when they are deliberating.”

The prosecutor argued further that, while the officer “should not have testified to the defendant's statement,” a “mistrial [would be] the most extreme option,” and that the curative instruction was a sufficient remedy. Defense counsel disagreed:

“[DEFENSE COUNSEL]: The problem is [defendant's] statement by saying, ‘I don't want to incriminate myself,’ * * * only makes sense in the context if she was driving because it's not against the law to drink, so she's basically saying to the officer * * * that she's guilty in that statement[.]”

The court denied defendant's motion for mistrial, concluding that:

“[THE COURT]: [M]y view of the totality of the evidence presented so far and the impact of this statement which was, again, in response to the question, ‘What time did you stop drinking,’ and the defendant allegedly responded, ‘Don't want to say anything incriminating,’ which is what the officer repeated, based on all the other information that was elicited and the other evidence that's been presented at trial, I don't—and as much as I'm disappointed that the State wasn't more careful in this case, I don't find that it was an intentional error on the part of the State. I know [the prosecutor] is new here and I take her at her word that she didn't intend to elicit it. I suspect she will never do it again so I'm not going to grant a mistrial here because of the—again, the whole scope of the evidence that's been presented. If I thought that this were to tip the verdict in any way I would grant a mistrial, but I don't believe that that's the case here so I'm not going to grant it now.”

The court invited defense counsel to propose “any additional curative instruction,” but counsel declined, explaining, “I believe that the curative instruction that was already given has made the problem worse already, so I would go with no curative instruction over any curative instruction at all.”

Defendant was convicted of DUII, ORS 813.010; reckless driving, ORS 811.140; and failure to perform the duties of a driver when property is damaged, ORS 811.700. Defendant moved for a new trial on the same grounds as in her motion for mistrial. The court denied defendant's motion for a new trial, again citing the prosecutor's inexperience, the curative instruction, and the “strength of the evidence,” including the “alcohol content” and the “strength of the witness testimony.”

On the DUII charge, defendant was sentenced to 10 days in jail and three years of enhanced bench probation, and 100 hours of community service. On the other two charges, defendant was sentenced to two years of probation.

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. Veatch, 223 Or.App. 444, 455, 196 P.3d 45 (2008) (citing State v. Smith, 310 Or. 1, 24, 791 P.2d 836 (1990)). A fair trial is that in which “the verdict is based on the evidence and not on factors external to the proof at trial.” Pachl v. Zenon, 145 Or.App. 350, 360 n. 1, 929 P.2d 1088 (1996), rev. den.,325 Or. 621, 941 P.2d 1022 (1997).

Defendant argues that she did not receive a fair trial because the state elicited testimony concerning defendant's invocation of her right to remain silent “in a context that gave rise to a prejudicial inference.” Defendant further argues that the court's curative instruction was insufficient to overcome that prejudicial inference. The state counters that the curative jury instruction was sufficient to ensure that defendant received a fair trial, and that the trial court acted reasonably within its discretion in concluding that the improper testimony did not affect the jury.

A reference by a prosecutor or a witness to the fact that a defendant exercised a constitutional right, such as the right to remain silent, “may prejudice ...