State v. Quebrado ( 2024 )

No. 16 May 16, 2024 301
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
CARLOS ALBERTO QUEBRADO,
Petitioner on Review.
(CC 19CR34736) (CA A174385) (SC S070057)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 19, 2023.
Morgen E. Daniels, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the briefs for petitioner on review. Also on the briefs was
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section.
Doug M. Petrina, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
JAMES, J.
The decision of the Court of Appeals is reversed in part
and affirmed in part. The case is remanded to the Court of
Appeals for further consideration.
Flynn, C.J. concurred and filed an opinion.
______________
* Appeal from Washington County Circuit Court, Ricardo J. Menchaca,
Judge. 323 Or App 308 (2022) (nonprecedential memorandum opinion).
302 State v. Quebrado
Cite as 372 Or 301 (2024) 303
JAMES, J.
This is a case about preservation. The state charged
defendant as an accomplice to second-degree assault and
unlawful use of a weapon. The charges arose from defen-
dant’s codefendant firing a shotgun from the passenger win-
dow of the car that defendant was driving, into another car’s
window, hitting that car’s passenger. Prior to trial, the code-
fendant entered a plea deal with the state in return for her
testimony against defendant. Everything about the state’s
conduct of the case, from the pretrial hearings to its witness
list and voir dire discussions, indicated that it intended to
call her as a witness. However, when the state rested its case
on a Thursday afternoon, it had not called her. The state
had, however, already introduced several of her statements
through other witnesses during its case-in-chief. When the
state rested, the trial court immediately concluded the day’s
proceedings with instructions to counsel that court would
resume the following Tuesday.
In the interim, defense counsel filed a written
motion for a mistrial, or, alternatively, a motion to strike
testimony, arguing that the state’s failure to call the code-
fendant as a witness meant that its reliance on her hearsay
statements violated defendant’s confrontation rights under
Article I, section 11, of the Oregon Constitution. The court
took up that mistrial motion immediately upon resuming
the proceedings on Tuesday. The state did not argue at that
time that defendant’s motion was untimely, and the trial
court engaged with the merits of defendant’s motion, rul-
ing that no confrontation violation had occurred. Defendant
thereafter was convicted. On appeal, the Court of Appeals
affirmed, in a nonprecedential opinion, briefly reasoning
that defendant’s motion had been untimely and therefore
not preserved as error on appeal. State v. Quebrado, 323
Or App 308, 310 (2022) (nonprecedential memorandum opin-
ion). Defendant petitioned for review, which we allowed.
The issue before us on review therefore con-
cerns preservation. And while this case involves only one
motion—a mistrial motion—the preservation analysis of
mistrial motions requires we address two distinct, but
interrelated questions of timeliness—the timeliness of the
304 State v. Quebrado
objection to the act that allegedly created the basis for the
mistrial, and the timeliness of the mistrial motion itself.
First, we consider when a defendant must object to timely
raise a confrontation challenge under Article I, section 11,
of the Oregon Constitution—either at the point when state-
ments that a potential witness had made are admitted, or,
instead, when the state fails to call the potential witness to
testify. Second, we consider whether defendant’s motion for
a mistrial, which was not orally raised immediately upon
the state resting, but instead was filed in written form sev-
eral days later, yet before the next scheduled day of trial,
was untimely, and therefore unpreserved.
As we explain, confrontation under Article I, sec-
tion 11, is more than solely a question of evidence. A poten-
tial Article I, section 11, confrontation violation occurs, not
simply when hearsay evidence is admitted at trial, but when
hearsay evidence is admitted and the hearsay declarant
does not testify at trial and the state fails to show that it was
unable to produce the declarant after exhausting all reason-
able means of doing so. Because not one, but two events need
to occur for an Article I, section 11, confrontation violation,
and because those two events may occur at different points
in a trial, the appropriate time to challenge the admission
of hearsay evidence on confrontation grounds may likewise
vary. Thus, in determining whether a defendant has pre-
served a confrontation objection under Article I, section 11,
courts must recognize that preservation “is a doctrine rooted
in practicality, not technicality.” State v. Skotland, ___ Or
___, ___, ___ P3d ___ (May 16, 2024) (slip op at 7:14-15).
Here, in the circumstances of defendant’s trial, it
was understandable for defendant to forego objecting to the
hearsay testimony when it was offered, because, in light of
how the case had been tried, it was reasonable to expect
that the declarant would testify herself later. The practical
purposes of preservation were served by an objection occur-
ring at the close of the state’s case-in-chief. Here, defendant
did not make that objection immediately when the state
rested, which could well have presented a problem for him.
However, because no significant event occurred in the trial
between the time the state rested and the trial resumed on
Cite as 372 Or 301 (2024) 305
the following Tuesday, and, even more importantly, because
neither the state nor the trial court expressed any concerns
about timeliness or prejudice, we conclude that defendant’s
mistrial motion based on confrontation grounds was timely,
and properly preserved the issue. Accordingly, the decision
of the Court of Appeals is reversed in part and affirmed in
part, and this case is remanded to the Court of Appeals for
further consideration.1
BACKGROUND
The relevant facts are undisputed. Defendant and
his girlfriend, Sisco, were at a bar and began arguing with
another couple, the Dixons. The argument escalated, and bar
staff directed all of them to leave the bar, with their alterca-
tion continuing outside in the parking lot. Eventually, defen-
dant and Sisco drove away; the Dixons left shortly there-
after. Defendant and Sisco then followed the Dixons, with
Sisco shouting at the Dixons and firing a shotgun at them
from the passenger window while defendant drove. Shotgun
pellets hit Ms. Dixon in the forehead and the hand.
A police officer who happened to be in the area saw
defendant’s car and also saw Sisco in the passenger seat
holding a shotgun. The officer began to pursue defendant’s
car, and a short chase ensued. Defendant and Sisco even-
tually abandoned their car and fled on foot; they were later
apprehended. Police searched defendant’s car and found a
12-gauge shotgun and a spent shell in the passenger-door
pocket. A citizen found an unfired shell some distance away.
The shells contained size-eight shot, the same type of pellets
that struck the Dixons’ car. The state charged defendant and
Sisco with attempted murder, second-degree assault, unlaw-
ful use of a weapon, and attempting to elude a police officer.
1
We allowed review on a second question presented in defendant’s petition
for review—whether, when a jury “asks a question during deliberations that indi-
cates that the jury may be proceeding under a legal theory that is not cogniza-
ble under Oregon law, does a defendant’s request that the trial court inform the
jury that the legal theory is not correct constitute a ‘negative instruction’ that
the court is not required to give?” Because we conclude that this case must be
remanded to the Court of Appeals for further consideration of the merits of defen-
dant’s confrontation objection, we exercise our discretion under ORAP 9.20(2) to
decline to reach the jury question issue identified in defendant’s second question
at this time. Our decision here does not foreclose continued litigation on that
matter, should it continue to be at issue following our remand.
306 State v. Quebrado
Sisco entered a plea deal contingent on her agreeing
to testify against defendant, and the trial court later granted
a pretrial continuance so that defendant could conduct discov-
ery in preparation to impeach her. At a later pretrial hearing,
the parties discussed limits on Sisco’s anticipated trial testi-
mony, and, at another hearing, the state represented that it
expected her to testify. At trial, the state included Sisco on its
witness list, subpoenaed her as a trial witness, and read her
name to the jury pool as a potential witness.
During the state’s direct examination of Mr. Dixon,
the state elicited a statement that Sisco allegedly had made
to Mr. Dixon at the bar, to the effect of “I’m going to kill
you.” Defense counsel did not object at that time.2 The state
also elicited testimony from Mr. Dixon that Sisco allegedly
had said to defendant in the parking lot, when he had been
looking for something in his car, “Not right here; not right
here.” Defendant objected to that statement as hearsay,
and the trial court permitted its admission as a cocon-
spirator statement made in furtherance of the conspiracy
under OEC 801(4)(b)(E). Defense counsel made no further
objection at that time. Ms. Dixon, similarly, testified that
she had observed defendant getting into the back of his
car during the altercation and that Sisco had said “No, not
here.” Defendant did not object to that testimony. Finally, a
detective testified that both Mr. and Ms. Dixon had told him
that Sisco had said, “Not here. Not here.” Defendant did not
object to that testimony.
The state then rested its case on a Thursday after-
noon without having called Sisco as a witness. The trial
court adjourned for the day, with instructions to the par-
ties that the case would resume on Tuesday morning. At
that point, it was clear that the state would not be calling
Sisco as a witness. After court adjourned, defendant filed
a written motion for mistrial or, alternatively, to strike
the testimony of the Dixons and the detective relating to
2
Defense counsel later stated that he did not object at the time on hearsay
grounds because he believed a hearsay exception applied. Because we address
only the issue of preservation and not merits of defendant’s confrontation-based
arguments in this case, we express no view as to whether that statement or any of
the other challenged statements constituted hearsay so as to raise confrontation
concerns.
Cite as 372 Or 301 (2024) 307
Sisco’s statements and give a curative instruction, on con-
frontation grounds under Article I, section 11, of the Oregon
Constitution. When trial resumed on Tuesday, the court took
up the filed mistrial motion. At that time, defense counsel
additionally orally moved for a mistrial or else to strike that
testimony, on the same confrontation grounds. Defendant
conceded that all the disputed testimony fell within firmly
rooted hearsay exceptions—his sole argument was that the
state had failed to prove Sisco’s unavailability as required
by Article I, section 11, which grants persons accused of a
crime the right “to meet the witnesses [against them] face to
face.” See, e.g., State v. Copeland, 353 Or 816, 818, 306 P3d
610 (2013) (referring to a defendant’s confrontation right
under Article I, section 11).
In response, the state did not argue that defen-
dant’s motion was untimely or that Sisco was unavailable.
In addressing the merits, however, rather than responding
to defendant’s argument under Article I, section 11, of the
Oregon Constitution, the state advanced an argument under
the Sixth Amendment to the United States Constitution,
that the testimony had described nontestimonial statements
of a coconspirator and, therefore, no Sixth Amendment con-
frontation violation had occurred. The trial court agreed
with the state—including that no confrontation violation
had occurred—and denied defendant’s motion on the merits:
“I’m respectfully going to deny the Motion for a Mistrial
and respectfully decline to give a curative instruction. I
don’t find it’s hearsay and I don’t find it’s testimonial, the
two statements at issue.”3
3
The state also had maintained that the statements at issue were not tes-
timonial and, therefore, the Confrontation Clause did not apply. See Crawford
v. Washington, 541 US 36, 124 S Ct 1354, 158 L Ed 2d 177 (2004) (holding that
the federal Confrontation Clause applies only to hearsay statements that are
“testimonial” in nature). However, only the federal confrontation clause makes
a distinction between testimonial and nontestimonial statements. See State v.
Cook, 340 Or 530, 540, 135 P3d 260 (2006) (explaining that, even though the
United State Supreme Court no longer adheres to the test abrogated by Crawford,
Oregon’s constitutional confrontation rights are governed by the earlier rule,
announced in Ohio v. Roberts, 448 US 56, 100 S Ct 2531, 65 L Ed 2d 597 (1980),
which required both witness unavailability and a firmly rooted hearsay excep-
tion). The trial court, in turn, referred only to the fact that the statements were
not “testimonial,” without addressing defendant arguments under the Oregon
Constitution’s confrontation provision.
308 State v. Quebrado
The trial court added, “I do find you’ve preserved your record.”
In rebuttal closing argument, the state relied on
Sisco’s statements as evidence of defendant’s guilt. Defendant
was convicted of second-degree assault and unlawful use of
a weapon as an accomplice, and he was convicted as a prin-
cipal for attempting to elude a police officer.
On appeal, among other assignments, defendant
assigned error to the trial court’s ruling on his Article I,
section 11, confrontation objection, arguing that the court’s
denial of his motion for mistrial or to strike had “flowed from
a mistaken legal premise” that no confrontation violation
had occurred. The Court of Appeals rejected that argument
on preservation grounds, briefly stating:
“Defendant’s fourth and fifth assignments of error assert
that the trial court erred when it denied his motion for mis-
trial and motion to strike. Considering the totality of the
circumstances, we conclude that defendant’s motions were
untimely. See State v. Sprow, 298 Or App 44, 49, 445 P3d
351 (2019). Accordingly, we reject defendant’s arguments
because they were not preserved.”
Quebrado, 323 Or App at 310.
ANALYSIS
The issue in this case is preservation, and the motion
in question is a mistrial motion. We have stated that, to be
preserved for appeal, a motion for mistrial must be timely.
See State v. Walton, 311 Or 223, 248, 809 P2d 81 (1991) (“To
preserve error, a motion for a mistrial must be timely.”). We
have further noted that, typically, a motion for mistrial is
timely if it is made when the allegedly objectionable and mis-
trial worthy statements or acts are made. Id.; see also State
v. Shafer, 222 Or 230, 235, 351 P2d 941 (1960) (“The time
to move for a mistrial is when the allegedly prejudicial act
occurs, not after the incident has been allowed to pass by, for
then it is too late for the trial judge to caution the jury and
mend the harm.”).4
4
The concurrence raises thoughtful questions about the extent to which our
prior decisions may have overvalued timeliness, when considered against the
general goals of preservation. In this case, no party has advanced that argument
or asked us to revisit any prior decisions. We therefore leave that discussion for
another day.
Cite as 372 Or 301 (2024) 309
Accordingly, before we can consider the timeliness
of defendant’s mistrial motion, based on his Article I, section
11, confrontation rights, we must consider when a basis for
a confrontation objection under Article I, section 11, arises.
The state equates confrontation objections to evidentiary
objections, and it advocates for a contemporaneous-objection
rule. That is, the state argues that a confrontation objection
can be timely raised only if made contemporaneously with
the state’s introduction of the purported hearsay statement.
Here, according to the state, defendant was required to object
on confrontation grounds when the state elicited the state-
ments of Sisco through witnesses on direct examination.
There is some support for the state’s position.
For purposes of the Sixth Amendment, the United States
Supreme Court has implied that confrontation objections
may be the equivalent to evidentiary objections, stating
that “[t]he right to confrontation may, of course, be waived,
including by failure to object to the offending evidence; and
States may adopt procedural rules governing the exercise
of such objections.” Melendez-Diaz v. Massachusetts, 557 US
305, 313 n 3, 129 S Ct 2527, 174 L Ed 2d 314 (2009).
If a confrontation objection is the direct equivalent of
an evidentiary objection, there is support for the state’s posi-
tion that a contemporaneous objection is required because,
to challenge an evidentiary ruling on appeal, a litigant typi-
cally must object at the time when the challenged testimony
is proffered. See State v. Clegg, 332 Or 432, 442, 31 P3d 408
(2001) (“Generally, once evidence has been admitted without
restriction, it can be used by the jury for any purpose.”).
However, we decline to create a strict contempora-
neous-objection requirement here, because we disagree with
the state’s characterization of a confrontation challenge as
the direct equivalent to an evidentiary challenge. For pur-
poses of Article I, section 11, a confrontation violation does
not occur solely with the introduction of hearsay statements.
As we explained in State v. Moore, 334 Or 328, 333-34, 49
P3d 785 (2002),
“when a hearsay declarant is not present for cross-
examination at trial, [Article I, section 11,] normally
requires a showing that he is unavailable. Even then, his
310 State v. Quebrado
statement is admissible only if it bears adequate ‘indicia
of reliability.’ Reliability can be inferred without more in a
case where the evidence falls within a firmly rooted hearsay
exception. In other cases, the evidence must be excluded,
at least absent a showing of particularized guarantees of
trustworthiness.”
(Some internal quotation marks omitted.) Accordingly, for
purposes of Article I, section 11, confrontation is not solely
a question of evidence. Rather, Article I, section 11, looks to
the co-occurrence of two events at trial: (1) the state’s intro-
duction of hearsay statements, and (2) the state’s failure to
call the declarant without a showing that the declarant is
unavailable.
Because a confrontation challenge is not the direct
equivalent to a challenge to the admission of evidence but
considers two components—one apparent when the evidence
is admitted (the introduction of hearsay), and one that may
or may not be apparent when the evidence is admitted (the
failure to produce a witness and the witness’s unavailabil-
ity)—and because those two components may not occur at
the same time at trial, a strict contemporaneous-objection
preservation rule is not workable. The complexity of the
inquiry does not lend itself to a one-size-fits-all approach.
Instead, parties and courts must consider the practical pur-
poses of preservation—most fundamentally, to ensure pro-
cedural fairness. Peeples v. Lampert, 345 Or 209, 220, 191
P3d 637 (2008). At its core, preservation asks whether the
parties, and the trial court, had a fair opportunity to meet
the merits of the argument later advanced on appeal and
thereby avoid the error at the outset or to correct the error
upon its occurrence.
In some instances—particularly when the hearsay
statement was made by a declarant whom the parties and
the court are not expecting to testify at trial—preserving
a confrontation objection may require a contemporaneous
objection as the hearsay statement is admitted. A contem-
poraneous objection in that circumstance may place both
the parties, and the trial court, in the best position to avoid
or remedy the error. Any other requirement could allow for
gamesmanship by the defense.
Cite as 372 Or 301 (2024) 311
In contrast, however, when a trial is conducted in
a manner such that it is reasonable to anticipate that the
declarant of a hearsay statement will be called as a witness,
preserving a confrontation objection may not always require
a contemporaneous objection at the time of the hearsay
statement’s admission. Preservation, as a doctrine of practi-
calities, does not require purely performative acts by coun-
sel. A requirement that a confrontation objection be made
contemporaneously to the introduction of a hearsay state-
ment, even when it is reasonable to expect that the declarant
will later be testifying, risks elevating form over substance,
which is antithetical to the goals of preservation. Shields v.
Campbell, 277 Or 71, 77-78, 559 P2d 1275 (1977) (explaining
that preservation does not “promote form over substance but
[promotes] an efficient administration of justice and the sav-
ing of judicial time”). In such a situation, based on the con-
text of how events unfolded at trial, an objection at the close
of the state’s case, when the declarant has unexpectedly not
testified, may sufficiently preserve an Article I, section 11,
confrontation objection. Any other requirement could allow
for gamesmanship by the state.
In this case, every indication in the record shows
that the state intended to call Sisco as a witness. The state
had secured a plea agreement for her testimony. The trial
court had previously continued the trial date so that defen-
dant could conduct discovery in preparation to impeach
Sisco after she had agreed to testify against defendant.
The parties had discussed at a pretrial hearing limiting the
scope of Sisco’s trial testimony. The state had included Sisco
in its witness list, subpoenaed her as a trial witness, and
read her name to the jury pool. In short, on this record there
was no reasonable basis to believe that the state would not
call Sisco as a witness. Considering all those circumstances,
we conclude that the practical purposes of preservation were
served by defendant’s objection at the close of the state’s
case, rather than at the time when Sisco’s hearsay state-
ments were admitted.
As noted earlier, although this case involves one
mistrial motion, analytically the issue involves two con-
stituent parts: (1) the timeliness of the objection to act that
312 State v. Quebrado
allegedly created the basis for the mistrial, and (2) the
timeliness of the mistrial motion itself. Having discussed
the first of those, we now address the second. As noted, the
state rested its case without calling Sisco as a witness in the
afternoon, on a Thursday. Apparently, the court had previ-
ously set a trial schedule with the parties that the trial pro-
ceedings would end for the week on Thursday, then resume
the following Tuesday. Upon the close of the state’s case, the
trial court said:
“[PROSECUTOR]: At this time, Judge, the State rests.
“[THE COURT]: All right. Okay it is roughly 3:40
[p.m.]. The State has rested, ladies and gentleman. * * *
Thank you all very much for being here this week. [Followed
by instructions to return to the courthouse the following
Tuesday at 9:00 a.m., together with other instructions, and
excusal of the jury.]
“(Outside the presence of the jury at 3:41 p.m.:)
“[THE COURT]: Okay. The jury is outside the court-
room. The State has rested. My thoughts are to take up any
additional things on Tuesday * * *. It’s been a long day.”
At that point, the prosecutor responded, “That’s fine with
me, Judge.” The trial court then adjourned.
During the intervening break in the trial proceed-
ings, defendant filed a written mistrial motion, or in the
alternative a motion to strike, based on the state’s alleged
confrontation violation. On Tuesday, the trial court called to
order and immediately took up defendant’s motion.
In this court, the state contends that the delay
between the Thursday afternoon when the state rested
its case, and the Tuesday morning when the court consid-
ered defendant’s mistrial motion, renders the issue unpre-
served. The state more particularly argues that defendant
was required to move for a mistrial on Thursday, and any
delay was fatal to preservation. In the context of this case,
we disagree.
Broadly speaking, mistrial motions are favored
at the time when the objectionable act occurs. See State v.
Montez, 309 Or 564, 601, 789 P2d 1352 (1990) (to preserve
Cite as 372 Or 301 (2024) 313
error, a motion for a mistrial must be raised in the trial
court); Shafer, 222 Or at 235 (generally, a mistrial motion
is timely if it is made when the allegedly objectionable error
was made). However, we have cautioned that, when a motion
for mistrial is not made immediately following the objec-
tionable act, such a motion may nevertheless be timely and
preserved if “no significant lapse of time, no additional tes-
timony, no recess, and no discussion of another issue” took
place. State v. Larson, 325 Or 15, 22, 933 P2d 958 (1997)
(mistrial motion was timely when a discussion that took up
only two pages of transcript had occurred before the defen-
dant moved for mistrial, following improper statement by
prosecutor).
The flexibility in our approach to the timing of mis-
trial motions once again emphasizes the practical aspect of
preservation. As we have explained, “[w]hat is required of a
party to adequately present a contention to the trial court
can vary depending on the nature of the claim or argument;
the touchstone in that regard, ultimately, is procedural fair-
ness to the parties and to the trial court.” Peeples, 345 Or at
220.
One pragmatic touchstone of preservation in the
context of a motion for mistrial is whether the parties and
the trial court would have been in a superior position to cure
the deficiency if the motion had been raised earlier in the
proceedings. Our decision in Shafer provides such an exam-
ple. In that case, the defense attorney had asked a prosecu-
tion witness who had sat inside the courtroom bar about his
presence there, and the trial judge then stated, “ ‘I am the
one that had him sit on the inside of the rail.’ ” 222 Or at 234.
The defendant moved for a mistrial on a subsequent day of
trial, arguing that the prosecution witness had received a
“judicial blessing,” which had prejudiced the jury against
the defendant. Id. We concluded, however, that any appear-
ance of undue recognition arising from allowing the witness
to sit inside the bar could have been cured with a timely
objection and, therefore, the issue had not been preserved.
Id. at 235.
Two considerations lead us to conclude that the
practical purposes of preservation were served here, even
314 State v. Quebrado
though defendant did not raise the issue immediately upon
the state resting on Thursday. First, between when the
trial court dismissed the parties on Thursday, and when it
took up the mistrial motion on Tuesday morning, no trial
actions had occurred. No other issue was discussed. And no
other evidence was presented in the time between those two
events. In other cases, we have cited the lack of further trial
developments as an important factor in evaluating whether
a mistrial motion was timely. Larson, 325 Or at 22.
Even with the absence of such trial developments,
of course, it is possible that the state could have identified
some prejudice from defendant’s delay, such as by objecting
that Sisco was no longer available. Thus, the second consid-
eration significant to our analysis is that the state did not
do so. Before us, the state maintains that, by the time that
defendant moved for a mistrial, it was too late to call Sisco
as a witness and mend the harm. The state, however, did
not make that argument in the trial court or present any
evidence to support it. To the extent the state is now advo-
cating we affirm the trial court on timeliness, under a “right
for the wrong reasons” rationale, that argument is foreclosed
because the record might have developed differently. See
generally Outdoor Media Dimensions Inc. v. State of Oregon,
331 Or 634, 659-60, 20 P3d 180 (2001) (considering whether
record would have developed differently had the issue been
raised in the trial court). For example, the state could have
explained, during the Tuesday hearing on that motion, why
Sisco had been unavailable to testify or how it had been prej-
udiced by defendant not moving for a mistrial on Thursday.
It could have moved to reopen its case. It did not.
As we stated in a different preservation case issued
today, “the winds of preservation can be gauged by looking
to the weathervane of trial court surprise: Would the trial
court be taken aback to find itself reversed on this issue,
for this reason?” Skotland, __ Or at __ (emphasis in origi-
nal) (slip op at 11:1-3). That inquiry is applicable here, as
well, though in this context the trial court was affirmed on
appeal. Would the trial court be surprised to learn that the
Court of Appeals affirmed its ruling—but on preservation
and timeliness grounds—when no party, nor the court itself,
Cite as 372 Or 301 (2024) 315
had considered defendant’s mistrial motion to have been
untimely and instead addressed the merits? The answer here
is yes. Neither the parties, nor the trial court, expressed any
concern about the timeliness of defendant’s mistrial motion.
They were in the best position to evaluate whether taking
up the issue on Tuesday morning, as opposed to Thursday
afternoon, placed the court in a worse position to be able
to address the error; no one so indicated. Instead, the trial
court stated, on the record, that defendant had preserved
the issue.
In short, all the policy objectives underlying the
doctrine of preservation were satisfied here. Under the facts
of this case, a defense objection on confrontation grounds
under Article I, section 11, at the close of the state’s case
was sufficient to preserve that objection. As explained,
defendant raised that objection by moving for a mistrial (or,
alternatively, to strike the disputed testimony) during the
interim time between the end of the trial proceedings one
week and the start of proceedings the following week, with
no other trial event, let alone a significant trial event, occur-
ring. Neither the state at trial, nor the trial court, claimed
surprise or asserted that the timing of defendant’s motion
for a mistrial prevented a fair adjudication on the merits.
The state fully grappled with and responded to the merits of
defendant’s argument, and the trial court similarly consid-
ered the merits and issued a merits-based ruling.
We conclude that defendant’s motion for a mistrial
on confrontation grounds under Article I, section 11, was
timely and therefore preserved the issue for appeal. The
Court of Appeals erred in concluding otherwise and should
have proceeded to address defendant’s assignments of error
concerning his motion for mistrial (or, alternatively, his
motion to strike the disputed testimony).
The decision of the Court of Appeals is reversed
in part and affirmed in part. This case is remanded to the
Court of Appeals for further consideration.
FLYNN, C.J., concurring.
I agree with the majority that defendant preserved
his challenge to the trial court’s denial of his motion for
316 State v. Quebrado
mistrial. I also agree with the majority that defendant’s
motion for mistrial was timely under the circumstances of
this case. But I write separately to question whether the
two issues are as closely linked as some of our decisions may
suggest.
As the majority explains, the preservation require-
ment serves “to ensure procedural fairness” to both the
parties and the trial court. ___ Or at ___ (citing Peeples
v. Lampert, 345 Or 209, 219-20, 191 P3d 637 (2008) (also
recognizing that “preservation fosters full development
of the record” for purposes of appeal)) (slip op at 10:19-21).
“Preservation gives a trial court the chance to consider and
rule on a contention, thereby possibly avoiding an error alto-
gether or correcting one already made, which in turn may
obviate the need for an appeal.” Peeples, 345 Or at 219; see
also State v. Brown, 310 Or 347, 356, 800 P2d 259 (1990)
(emphasizing that the reasons for the rule requiring pres-
ervation in the trial court are to “allow the adversary to
present its position and to permit the court to understand
and correct any error”).
I agree with the majority that the purposes of pres-
ervation were fully served when defendant moved for a mis-
trial on the asserted basis that the state’s introduction of
hearsay statements without calling the declarant as a wit-
ness violated defendant’s rights under the Confrontation
Clause. ___ Or at ___ (slip op at 16:13-14). The state had the
opportunity to respond on the merits to defendant’s motions,
the trial court had the opportunity to rule on the merits,
and the record is fully developed. Thus, applying our long-
standing rules of preservation, there would be no question
that defendant’s claim of error was preserved for appeal. See
State v. Hitz, 307 Or 183, 189, 766 P2d 373 (1988) (conclud-
ing that the defendant preserved his claim of error because
“[t]he state was not ambushed or misled or denied an oppor-
tunity to meet defendant’s argument in this case”).
Nevertheless, the Court of Appeals pointed exclu-
sively to the timing of defendant’s motion, concluded without
elaboration that the motion was untimely, and from there
concluded that any challenge to the court’s denial of a mis-
trial necessarily was unpreserved. See State v. Quebrado,
Cite as 372 Or 301 (2024) 317
323 Or App 308, 310 (2022) (nonprecedential memorandum
opinion) (concluding that defendant’s motion for mistrial
was untimely and, “[a]ccordingly,” rejecting defendant’s
challenge to the denial as “not preserved”).
The court’s equating of timeliness with preserva-
tion is understandable. A series of opinions from this court
during the 1990s offered such cursory rejections of a defen-
dant’s challenge to the denial of a motion for mistrial that
they arguably suggest that timeliness supplants our usual
preservation analysis. See, e.g., State v. Barone, 328 Or 68,
90, 969 P2d 1013 (1998), cert den, 528 US 1135 (2000) (sum-
marily announcing that the defendant’s “mistrial request
was untimely and, consequently, did not preserve the alleged
underlying error for review”); State v. Hayward, 327 Or 397,
409, 963 P2d 667 (1998) (summarily announcing that the
defendant’s motion for mistrial “was not timely and hence
was not preserved”); State v. Williams, 322 Or 620, 631, 912
P2d 364, cert den, 519 US 854 (1996) (summarily announc-
ing that the defendant’s motion for mistrial “was not timely
and, thus, that claim of error was not preserved for review”);
State v. Walton, 311 Or 223, 248, 809 P2d 81 (1991) (sum-
marily announcing that, “[t]o preserve error, a motion for a
mistrial must be timely”).
But I would caution against so readily substituting
a timeliness test for the preservation analysis we typically
employ—as the Court of Appeals did here—especially when
“untimely” is, itself, used as a categorical label for any motion
that has not been made immediately after the concerning
incident. The timeliness of a motion for mistrial fits within
our framework for analyzing whether the mistrial issue was
preserved for purposes of appeal; if nothing else, delay in
bringing the motion may have eliminated the court’s ability
to correct the error with action short of a mistrial, which,
in turn, could be a reason to conclude that any challenge
to the denial of a mistrial was unpreserved. But not every
error can be corrected short of a mistrial, and, conversely,
not every delayed objection comes too late for the trial court
to take lesser corrective action. As we long ago emphasized
in explaining the rule of preservation, “[e]fficient procedures
are instruments for, not obstacles to, deciding the merits,
318 State v. Quebrado
particularly when the alternative is a criminal conviction
that lacks a basis in law or in fact.” Hitz, 307 Or at 188-89.
In prior cases, the Court of Appeals has taken a
“more nuanced approach” to evaluating whether a motion
for mistrial was preserved, including holding “that a mis-
trial motion was timely, even if not instantaneously made,
when made under such circumstances that the underlying
purpose of that preservation requirement is fulfilled.” State
v. Sprow, 298 Or App 44, 49, 445 P3d 351 (2019) (internal
quotation marks and citations omitted). That reasoning
appears to fold timeliness back into the preservation frame-
work, and I agree with that approach.
Indeed, to the extent that this court’s 1990s-era
mistrial cases appear to compel a deviation from our estab-
lished approach to preservation, they may not survive close
scrutiny. Not one case in the series explains why the timing
of a motion for mistrial can present a categorical obstacle to
concluding that an appellant satisfied the purposes of pres-
ervation, which this court already had announced in Hitz
and Brown. And the categorical approach to preservation
was questionable from the start. Walton—which announced
that, “[t]o preserve error, a motion for a mistrial must be
timely,” 311 Or at 248—is the earliest case in the series, and
it attributes that categorical link to State v. Montez, 309 Or
564, 789 P2d 1352 (1990). But Montez does not support the
proposition that Walton attributes to it, because the mistrial
issue in Montez was entirely unpreserved—the defendant
had not moved for a mistrial and later sought “plain error”
review on appeal. 309 Or at 601. And the other cases in the
series merely followed Walton’s lead—with Williams citing
Walton, 322 Or at 631; Hayward citing Williams, 327 Or at
409; and Barone citing both Walton and Williams, 328 Or at
90. But defendant has not asked us to disavow Walton and
its progeny, and the reasoning of the Court of Appeals in
Sprow may illustrate that the Walton line of cases can sim-
ply be limited. Both are questions for another day. Therefore,
I concur.