State v. Quebrado

“When a motion for mistrial is not made immediately following the objectionable act, such a motion may nevertheless be timely and preserved if ‘no significant lapse of time, no additional testimony, no recess, and no discussion of another issue’ took place.” State v. Larson, 325 Or 15, 22 (1997).

Defendant appealed his motion for mistrial because the State did not present his co-defendant as a witness. Specifically, Defendant assigns error to the trial court, arguing that denial of his motion no confrontation grounds was improper as a matter of law and that he had preserved the argument. The State responded that the issue was unpreserved and that Defendant’s opportunity to object was when hearsay statements by co-defendant were elicited through direct examination of other witnesses. “When a motion for mistrial is not made immediately following the objectionable act, such a motion may nevertheless be timely and preserved if ‘no significant lapse of time, no additional testimony, no recess, and no discussion of another issue’ took place.” State v. Larson, 325 Or 15, 22 (1997). The Court reasoned that because no trial actions occurred between when the trial court dismissed the parties on Thursday and took up the mistrial motion on Tuesday the issue was timely. The Court further that because Defendant had no reasonable basis to believe the State would not call co-defendant as a witness and the State did not identify any prejudice from Defendant’s delay, the motion for mistrial at the conclusion of the State’s case was timely and preserved. Therefore, the judgement is reversed in part and affirmed in part.