State v. Osorno

An inadvertent revelation that Defendant invoked her right to remain silent was grounds to grant motions for mistrial and a new trial.

Defendant appealed the trial court’s denial of her motions for mistrial and a new trial after being convicted of driving under the influence of intoxicants, reckless driving, and failure to perform the duties of a driver when property is damaged. Defendant’s grounds for her motion was her statement “[I] don’t want to say anything incriminating,” which was ruled inadmissible before the trial, but was nevertheless invoked by the state during trial. Instead of granting Defendant’s motion, the trial court provided curative instruction to the jury. The Court held the trial court abused its discretion by refusing Defendant’s motion for a mistrial because allowance of this statement affected Defendant’s right to a fair trial, despite its mention being inadvertent. The Court further held the curative jury instruction was insufficient to remedy the prejudicial effect, and that the evidence used by the trial court to deny Defendant’s motions was also insufficient. Reversed and remanded.