Submitted April 29, 2014
Multnomah County Circuit Court. 120444112. Karin Johana Immergut, Judge.
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.
[264 Or.App. 744] 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 [264 Or.App. 745] 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, ...