State v. Stanley

• Jurisdiction: Oregon
• Decision Date: 05 July 1977
• Citation: State v. Stanley, 566 P.2d 193, 30 Or.App. 33 (Or. App. 1977)
• Parties: STATE of Oregon, Respondent, v. Ray C. STANLEY, Appellant.
• Court: Oregon Court of Appeals

Page 193

566 P.2d 193

30 Or.App. 33

STATE of Oregon, Respondent, v. Ray C. STANLEY, Appellant.

Court of Appeals of Oregon.

Argued and Submitted May 17, 1977.

Decided July 5, 1977.

Scott M. Galenbeck, Springfield, argued the cause for appellant. With him on the brief was Lively & Wiswall, Springfield.

W. Benny Won, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C. J., and TANZER and RICHARDSON, JJ.

TANZER, Judge.

The defendant appeals from his judgment of conviction in the district court for driving while under the influence of intoxicants. The issues on appeal flow from a claim of prejudice based on the jury's knowledge of a breathalyzer test administered to the defendant at the time of his arrest, the result of which was excluded from evidence on defendant's objection.

Defendant first assigns as error the denial of his motions to determine the admissibility of the breathalyzer evidence in camera. He next assigns as error the denial of his motion for mistrial immediately following the sustaining of his objection.

The Supreme Court has held that the decision of whether to preliminarily determine in camera the admissibility of evidence is one for the discretion of the trial court. In State v. Jordan, 146 Or. 504, 510, 26 P.2d 558, 561, 30 P.2d 751 (1934), the Supreme Court said:

"The better practice is that all doubtful questions of evidence or procedure should not be proposed or discussed in the presence of the jury. The court should exclude the jury while hearing the preliminary testimony on the question of the admissibility of evidence generally, or documentary evidence. Whether offers of proof should be made out of the presence or hearing of the jury is discretionary with the trial court. * * *" ¹

Similarly, rulings on motions for mistrial are addressed to the sound discretion of the trial court. State v. Smith, 4 Or.App. 261, 263-64, 478 P.2d 417 (1970).

It is our function on appeal to review those rulings only for abuse of discretion. In the context of trial, abuse of discretion means the tolerance of uninvited prejudice. Prejudice, as it may flow from the denial of an in camera evidentiary hearing or of a mistrial, means a reasonable possibility that the judge or jury will be influenced in the performance of the fact-finding function by the irregular event. Whether that reasonable possibility exists must initially be determined by the trial court. The trial court is in the best position to determine the effect of the irregular event because such a determination must often take into account a sense of the courtroom atmosphere, the dynamics of the trial, the appearance of the parties and witnesses, and other intuitional and subjective factors which are seldom evident to appellate judges reading a transcript. Furthermore, the trial court is in a position to cure or minimize prejudice by taking immediate remedial action, whereas the only remedy available to the appellate court, reversal, is both late and drastic. Therefore the appellate court must defer to the trial court in matters of discretion unless it concludes as a matter of law, that is, beyond reasonable dispute, that the trial court abused its discretion by improperly tolerating uninvited prejudice.

The existence or not of prejudice in this case must be determined from a review of the challenged rulings in the sequential context of trial. There was no pretrial motion to suppress as evidence the results of the breathalyzer examination. ² Defense counsel asked a juror on voir dire whether there had been breathalyzer evidence presented in a previous case in which she had served involving a charge of driving while under the influence of intoxicants. In opening statement, the prosecutor informed the jury that there would be evidence of the results of the breathalyzer test. The subject of breathalyzer evidence had been mutually opened and the jury's expectancy established.

After opening statements, the defendant first asked for an in camera hearing on the admissibility of the breathalyzer evidence. The court denied the request, preferring to rule after the state had laid its foundation and offered the evidence.

Again, during the testimony of the police officer, while in chambers on another evidentiary matter, defense counsel asked the court to hear the objection to the breathalyzer evidence in camera. The court denied the request and again said that it would give the state the opportunity to lay a proper foundation before ruling.

The state then examined the officer with the objective of laying a foundation for the admissibility of the breathalyzer results. The defense made several objections, one of which was...