and submitted March 26, 2019.
Yamhill County Circuit Court 17CR09740; Ladd J. Wiles, Judge.
Fujita Munsey, Deputy Public Defender, argued the cause for
appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
G. Howe, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Summary: Defendant appeals a judgment of conviction for
possession and delivery of methamphetamine, ORS 475.894 and
ORS 475.890(2), challenging the denial of a motion for a
mistrial. Defendant contends that a sergeant's testimony
that defendant “wanted to talk” but “did
not want to waive his rights” prejudiced the
trial's fairness by raising the inference that, out of
guilt, defendant exercised his right to remain silent. He
argues that a jury instruction to “disregard” the
testimony failed to cure the error. The state counters that
defendant's claim is unpreserved, noting that he
requested and failed to object to the curative instruction.
The state also claims that the testimony was not prejudicial
and that the instruction addressed any potential harm. Held:
Defendant's motion for a mistrial remained preserved
despite the instruction. The testimony denied defendant a
fair trial because it gave rise to an adverse inference of
guilt. Nothing diverted the jury's attention from that
inference, and the curative instruction failed to negate it.
Or.App. 598] DEVORE, J.
appeals a judgment of conviction for possession and delivery
of methamphetamine, ORS 475.894 and ORS 475.890(2). He
assigns error to the denial of his motion for a mistrial.
Defendant argues that his ability to have a fair trial was
prejudiced by an officer's testimony that defendant
"did not want to waive his rights," because the
jury likely inferred that he chose not to speak with police
because he was guilty. He argues that a curative jury
instruction to disregard the testimony failed to cure the
error. We agree, reverse, and remand.
relevant facts are undisputed. Drug enforcement officers were
investigating individuals suspected of drug dealing. Seeing a
vehicle associated with the suspects, they followed it, saw
traffic infractions, and initiated a traffic stop. Defendant
sat in the front passenger seat. A detective asked several
questions of defendant, and he answered. A drug-sniffing dog
alerted officers to the odor of drugs, prompting a vehicle
search. Police asked that defendant and his companions get
out of the vehicle, and they handcuffed defendant and advised
him of his rights. The search revealed 221.08 grams of
methamphetamine in the rear compartment of the vehicle, as
well as drug paraphernalia in various other locations.
Defendant was placed under arrest and charged with four
defendant's trial, the state examined Sergeant Geist, one
of the officers who spoke to defendant at the scene of the
traffic stop. The problematic testimony occurred in this
"[PROSECUTOR]: Okay. After you assisted in the search,
what did you do?
"[SERGEANT]: I then interviewed the driver.
"[PROSECUTOR]: Did you interview the passenger?
"[SERGEANT]: I did, yes.
"[PROSECUTOR]: Okay. And who did you identify the