State v. Carrasco-Montiel

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Appellate Procedure
  • Date Filed: 06-22-2016
  • Case #: A154291
  • Judge(s)/Court Below: Duncan, P.J. for the Court; Lagesen, J.; & Flynn, J.

When a party having knowledge of an error or an irregularity during trial fails to call it to the court’s attention and remains silent, speculating on the result, he is deemed to have waived the error, and the denial of a motion for a new trial based upon that ground presents no reviewable question.

Defendant was convicted of first-degree assault and unlawful use of a weapon. On appeal, he argued that the trial court erred in failing to grant a mistrial, after it became apparent that one of the jurors had outside information into the jury’s deliberations. Defendant further argued that the trial court erred by not sustaining his objection to the prosecutor’s closing argument, which, allegedly undermined the presumption of innocence. Finally, Defendant assigned error to the trial court's failure to grant his motion for a new trial, due to the testimony of his key alibi witness being inaudible and also alleged that an unidentified juror had engaged in threatening conduct toward the jury foreperson. However, the Court ultimately ruled in favor of the State in all issues. Specifically, the Court found that did not error in regards to the state's closing arguments because, as they explained when viewed in context, did not undermine the presumption of innocence. Further, they ruled that Defendant could not assign error to due to failure to preserve the objection to the jurors misconduct during trial, additionally, the Court found that the trial court did not plainly error by abusing their discretion with regards to the subpoena. Affirmed

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