State v. Schumacher

Under State v. Veatch, 223 OR App 444 (2008), testimonial “[r]eference to a defendant’s exercise of a constitutional right” from which a jury is likely to infer guilt “jeopardizes the right to a fair trial[,]” particularly when it goes uncured.

Defendant appealed a conviction for DUII and reckless driving. Defendant assigned error to the trial court’s denial of his motion for a mistrial. On appeal, Defendant argued that the arresting officer’s testimony referring to Defendant’s invocation of his right to counsel, which the trial court did not cure, likely caused the jury to infer guilt. In response, the State argued that (1) “in context, the jury likely perceived the reference to Defendant’s invocation as an explanation for the officer’s conduct[,]” (2) that Defendant failed to propose a curative instruction, and (3) that later testimony abated “any inference of guilt.” Under State v. Veatch, 223 OR App 444 (2008), testimonial “[r]eference to a defendant’s exercise of a constitutional right” from which a jury is likely to infer guilt “jeopardizes the right to a fair trial[,]” particularly when it goes uncured. The Court found that the testimony here “directed the jury’s attention” to Defendant’s invocation “after the officer asked him for potentially incriminating information” and not merely to the officer’s actions. The Court further found that the trial court should have, but failed to, take any curative action and that “no other evidence negated the inference of guilt.” Reversed and remanded.