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State v. Swanson

Court of Appeals of Oregon

August 29, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
SHEILA MARIE SWANSON, Defendant-Appellant.

          Submitted July 25, 2017

          Josephine County Circuit Court 13CR0504; Thomas M. Hull, Judge.

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

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

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and James, Judge.

         Case Summary: Defendant appeals a judgment of conviction for driving under the infuence of intoxicants and other driving offenses. Defendant assigns error to the trial court's denial of her motion for mistrial, which she made in response to a state trooper's testimony that defendant had asked to speak with an attorney when the trooper questioned her about the accident. Held: The trial court abused its discretion in denying the motion for mistrial, because the admission of the improper testimony deprived defendant of a fair trial. Under the circumstances, including the absence of a curative instruction, the jury would likely have inferred that defendant had asked to speak with an attorney because she was guilty.

         [293 Or.App. 563] DEHOOG, P. J.

         Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.011, reckless driving, ORS 811.140, and driving while suspended, ORS 811.182. She assigns error to the trial court's denial of her motion for mistrial after a state trooper testified that defendant, in response to the trooper's questioning, had stated "that she didn't want to talk to [the trooper] without talking to her attorney." Reviewing for abuse of discretion, State v. Osorno, 264 Or.App. 742, 747, 333 P.3d 1163 (2014), we conclude that the admission of that testimony deprived defendant of a fair trial. Accordingly, we reverse and remand for a new trial.

         The relevant facts are undisputed. Defendant was involved in a single-vehicle car accident. The paramedics who responded to the accident observed that defendant had suffered a large cut to her forehead and appeared to be confused and emotional. Defendant admitted to the paramedics that she had been drinking and initially told them that she had been the only person in the vehicle; she maintained, however-both to the paramedics and, later, to the police-that she had not been the driver. The police did not speak with defendant until three hours after the accident, at a hospital where the paramedics had taken her for treatment. There, after a blood sample drawn with defendant's consent revealed a blood-alcohol content of .12 percent, the state trooper investigating defendant's accident arrested her for DUII.

         At trial, the trooper explained on direct examination that, when she first entered defendant's hospital room, defendant had "pretended that she wasn't responsive." Defendant objected, arguing that the trooper was not capable of judging whether defendant had been pretending. The court sustained the objection, stating, "Before I would allow that, I'm going to have to have at least some more basic information." The trooper then testified that defendant had appeared awake and alert but "initially" would not respond to the trooper's questions. The trooper explained, however, that defendant had later responded, and the prosecutor asked the trooper to "describe the circumstances." The trooper testified:

[293 Or.App. 564] "Sure. Again I had walked in, and initially my-my conversation was I wanted to ask her about the crash, make sure that there wasn't any other occupants, find out how the crash occurred, how fast was she going, was she wearing her seatbelt, things of that nature involved-regarding the crash. She kind of just looked at me and then again I-I introduced myself. She told me that she didn't really feel like talking. I attempted multiple times to try and get her to talk to me, and I explained the reason why, and that's kind of when she told me that she didn't want to talk to me without talking to her attorney, and she-"

         Defendant again objected at that point and, outside the presence of the jury, moved for a mistrial "on the basis that counsel elicited [defendant's] invocation of her constitutionally guaranteed right to counsel." In response to defendant's objection, the trial court questioned whether a curative instruction would "gain anything or just make it worse." Defendant expressly declined to argue for or against a curative instruction, other than to state that "the bell has been rung and cannot be sufficiently unrung."

         The trial court ultimately denied defendant's mistrial motion and elected not to give a curative instruction. The court explained some of its reasoning and instructed the prosecutor to tread carefully once the witness retook the stand, stating:

"[W]hat I thought you [the prosecutor] were dealing with was this implication that she was pretending. You were going through a * * * series of questions. My conclusion is it was not prejudicial under the circumstances, and * * * I'm denying the motion for mistrial. * * * You're going to have to be careful where you're headed with this, because [the trooper has] come out and said that. There was quite ...

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