Oregon DUII Law - Curative instruction not adequate
In the Court of Appeals of Oregon. - STATE of Oregon, Plaintiff-Respondent, v. Brett Alan VEATCH, Defendant-Appellant. D052111T; A132040., Argued and submitted on March 10, 2008. Decided Oct. 29, 2008.
From the defense perspective, this opinion starts out bad and then gets very good at the end. First, the court affirms that an officer doesn't have to give a defendant privacy to talk with an attorney until contact with a live attorney is made.
Consistently with Durbin, we conclude that defendant's reasonable opportunity to consult with counsel was not violated because Berry remained in the room while defendant left messages and asked his mother for a referral. Indeed, as we noted in State v. Matviyenko, 212 Or.App. 125, 130, 157 P3d 268 (2007), "an officer may be justified in remaining in the room until contact with an attorney is made in order to ensure that the suspect actually calls an attorney rather than using the telephone for some inappropriate purpose." The trial court did not err in denying the motion to suppress.
The court also considered the issue of whether a curative instruction was sufficient, and if not, whether the failure of defense counsel to specifically object to the content of the instruction failed to preserve the issue for appeal.
The court found that the issue was preserved:
We next consider the state's contention that defendant's failure to object to the sufficiency of the curative instruction nullified his mistrial motion for purposes of this appeal. We conclude that it did not. Neither we nor the Supreme Court have ever held that, when a trial court gives a curative instruction in response to objectionable testimony, the defendant must object to the sufficiency of the instruction in order to be permitted to raise on appeal an otherwise properly preserved mistrial motion based on that testimony. In short, if the court chooses to give a curative instruction rather than declare a mistrial, any error in denying a preserved mistrial motion remains preserved regardless of whether the defendant objected to the sufficiency of the instruction.
The issue of the adequacy of the curative instruction regarding Defendant's request for counsel was next considered:
The state agrees that it is improper to admit evidence of a defendant's invocation of constitutional rights, but it argues that the curative instruction was sufficient to ensure that defendant received a fair trial.
The court decided the issue of whether the curative instruction was sufficient to divert the jury's attention from an inference of guilt based on the request for counsel.
We conclude that Berry's statement likely gave rise to an adverse inference of guilt. The jury was informed that defendant had invoked the right to counsel in response to being asked whether he would submit to a potentially incriminating breath test. Berry's statement was not incidental to some other point that the jury was more likely to be focusing on. As defendant argues, under the circumstances, a jury would likely infer that a person arrested for DUII would not ask for an attorney unless he or she was concerned about failing the breath test-in other words, a jury would likely see it as a tacit admission of guilt. Because nothing in the context diverted the jury's attention away from that inference, we cannot say that it is unlikely that the jury drew it.
Here's the instruction that was given by the Judge:
As noted above, the court instructed the jury that "a person has a right to call their lawyer and you're not supposed to make any inferences from that, since they have a right to do it. And so the State's not even supposed to bring it up. * * * The seven of us are going to totally ignore it * * *."
Here's what the Oregon Court of Appeals said:
Because Berry's testimony was prejudicial to the defense and the trial court's instruction did not cure that prejudice, the court abused its discretion in denying defendant's motion for a mistrial.
ANALYSIS: It takes a lot to find an "abuse of discretion" in cases where the trial judge is in the best position to assess the impact of words on a jury in the courtroom. Kudos to the Oregon Court Of Appeals for getting this right. As we say "that is a bell you can't unring."
AN ASIDE: This week has seen a slew of new DUI cases from across the nation that are favorable to the defense. DUI defense lawyers should rejoice in their efforts. While the Constitutional Rights of those accused of DUI/DWI continues to be eroded by state legislators, it is good to see that the appellate benches are making the right calls.
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