State v. Hunt

“An adverse inference of guilt is likely when the testimony is not merely incidental and when nothing directs the jury’s focus away from it.”

Defendant appealed a conviction for possession and delivery of methamphetamine. Defendant assigned error to the trial court’s denial of his motion for mistrial. On appeal, Defendant argued that the jury was likely to infer, from testimony provided in court, that Defendant was guilty because he exercised his right to remain silent.  In response, the State argued that Defendant failed to preserve the assignment of error because, by requesting the curative instruction and failing to object to the chosen instruction, Defendant “invited the error”. “An adverse inference of guilt is likely when the testimony is not merely incidental and when nothing directs the jury’s focus away from it.” The Court found that the sergeant's testimony gave rise to an adverse inference of guilt because Defendant’s statement suggested that he had information pertinent to the crime but could not share it without incriminating himself. Thus, the Court held that the curative jury instruction was insufficient to address the prejudicial effect of the testimony. Reversed and remanded.