State v. Hylton , 316 Or. App. 270 ( 2021 )

270
Argued and submitted September 17, 2020, reversed and remanded
December 8, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
CLINTON JOSEPH HYLTON,
Defendant-Appellant.
Lincoln County Circuit Court
18CR07731; A171378
501 P3d 1081
Thomas O. Branford, Judge.
George W. Kelly argued the cause and filed the brief for
appellant.
Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Brewer, Senior Judge.
PER CURIAM
Reversed and remanded.
Cite as 316 Or App 270 (2021) 271
PER CURIAM
A jury found defendant guilty of two counts of first-
degree rape (Counts 1 and 2), ORS 163.375; two counts of
second-degree sexual abuse (Counts 3 and 8), ORS 163.425;
one count of application of a Schedule I controlled substance to
the body of another person (Count 5), ORS 475.910; one count
of third-degree sodomy (Count 7), ORS 163.385; three counts
of delivery of a controlled substance to a minor (Counts 9,
10, and 11), ORS 475.906; and one count of endangering
the welfare of a minor (Count 12), ORS 163.575.1 Not all of
the verdicts were unanimous. Defendant appeals, raising
three assignments of error. We briefly address defendant’s
first assignment of error below. Our disposition of that
assignment obviates the need to address defendant’s third
assignment, which asserts error under Ramos v. Louisiana,
590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020) (Sixth
Amendment requires unanimous jury for conviction of seri-
ous offense). We reject defendant’s second assignment of
error without discussion.
A detailed discussion of the facts would be of little
benefit to the bench, bar, or public. The charges arose out of
two incidents in which defendant was alleged to have sex-
ually abused a minor. It was also alleged that, throughout
the relevant period, defendant supplied the minor with con-
trolled substances and, on one occasion, forcefully injected
the minor with a controlled substance. In the state’s opening
statement at trial, the prosecutor commented on defendant
having invoked his right to remain silent during questioning
by the investigating detective. The trial court immediately
admonished the jury to disregard any reference to defen-
dant’s invocation of his rights. Later, the state elicited tes-
timony from the detective that again referenced defendant’s
invocation of the right to remain silent. The trial court reit-
erated to the jury that it was not to draw an adverse infer-
ence from defendant’s invocation, and, after denying defen-
dant’s motion for a mistrial, did so a third time in a lengthy
colloquy.
1
The trial court merged the guilty verdicts on Count 1 and 3 with the con-
viction on Count 2. The court also merged the guilty verdict on Count 7 with
Count 8.
272 State v. Hylton
In his first assignment of error, defendant contends
that the trial court erred in denying his motion for a mis-
trial. In particular, defendant argues that he was denied a
fair trial because the state elicited testimony that effected
a comment on defendant’s right to remain silent. Defendant
further contends that the trial court’s curative instructions
were insufficient to remedy the prejudicial effect of the
improper comment. Having reviewed the briefing, the rele-
vant portions of the record, and the applicable law, we agree.
We therefore reverse and remand.
“We review the denial of a motion for a mistrial
for abuse of discretion, reversing only if the defendant was
denied a fair trial.” State v. Hunt, 297 Or App 597, 600, 442
P3d 232 (2019) (internal citation omitted). A defendant’s abil-
ity to have a fair trial may be prejudiced when a prosecutor
or a witness references the defendant’s invocation of a consti-
tutional right and that reference “raises the impermissible
inference that the defendant did so because he or she was
guilty.” Id. at 600-01 (internal citation omitted). When such
prejudicial inferences are likely, “[t]here is no doubt that it
is usually reversible error” to admit the testimony. State v.
Smallwood, 277 Or 503, 505-06, 561 P2d 600, cert den, 434
US 849 (1977). On this record, we conclude that there was
a high likelihood that the jury drew an adverse inference of
guilt. The jury was informed that defendant had invoked his
right to remain silent in response to the detective “pressing
further” after receiving answers to his initial questions. A
jury would likely draw the inference that defendant invoked
the right to remain silent because he had something to hide.
The testimony elicited from the investigating detective was
specifically focused on defendant’s response to police ques-
tioning. See Hunt, 297 Or App at 604 (finding a reference
prejudicial under analogous circumstances where the ref-
erence was not incidental but the primary focus of the pros-
ecutor’s line of questioning). Further, “[b]ecause 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.” State v. Veatch, 223 Or App 444, 460, 196 P3d 45
(2008).
However, even a high likelihood that the jury
will draw an adverse inference of guilt does not always
Cite as 316 Or App 270 (2021) 273
necessitate a mistrial. In some cases, “the prejudicial effect
may be cured by an appropriate jury instruction.” Id. at
458 (internal citation omitted). “The dispositive question
on this issue” is “whether the purportedly curative instruc-
tion was sufficient to unring the bell.” State v. White, 303
Or 333, 342, 736 P2d 552 (1987). Despite the trial court’s
considerable effort to cure the prejudicial effect, we are not
satisfied that the instructions in this case “achieve[d] the
difficult—perhaps impossible—task of negating the infer-
ence that the defendant invoked his or her rights because
of his or her consciousness of guilt.” Hunt, 297 Or App at
606 (internal citation omitted). Indeed, under the circum-
stances, the trial court’s well-intended efforts to address
the issue may well have exacerbated the adverse effect of
the improper references. During the court’s second admo-
nition to the jury, the court explicitly described the adverse
inference of guilt that the jury might reasonably draw from
defendant’s invocation of the right to remain silent. And the
court’s remaining explanation, though correctly stating that
it would be improper for the jury to consider the exercise of
a constitutional right, served only to tell the jury that the
testimony was irrelevant to their determination. In other
words, we cannot say that the adverse inference was suffi-
ciently negated. See id. (noting that “[i]nstructing the jury
to consider the testimony ‘irrelevant’ to their deliberations
is not enough”) (internal citation omitted). Accordingly, we
conclude that the trial court erred in denying defendant’s
motion for a mistrial.
Reversed and remanded.