S054710, Opinion — State v. Evans

358
Argued and submitted October 2, 2007, decision of Court of Appeals and
judgment of circuit court affirmed March 27, 2008
STATE OF OREGON,
Respondent on Review,
u.
GEORGE PETE EVANS,
Petitioner on Review.
(CC 04030588; CA A125947; SC 8054710)
182 P3d 175

as 344 Or
CJS, ,Juries § 369.
En Banc
On review from the Court of Appeals.*
Peter Gartlan, Chief Defender, Legal Services Division,
Office of Public Defense Services, Salem, argued the cause for
petitioner on review. With him on the briefs was Louis R.
Miles, Deputy Public Defender.
Susan G. Howe, Senior Assistant Attorney General,
Salem, argued the cause for respondent on review. With her
on the brief were Hardy Myers, Attorney General, and Mary
H. Williams, Solicitor General.
LINDER, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
* Appeal from Linn County Circuit Court, Glen D. Baisinger, Judge. 211 Or
App 162, 154 P3d 166 (2007).

360 State v. Evans
LINDER, J.
During the voir dire of the prospective jurors in this
criminal case, the trial court asked whether any of them
knew defendant or the counsel for the parties. One prospec
tive juror responded that she knew defendant. When the trial
court asked in what context, she explained that she and
defendant used to be friends and that she had an "outstand
ing stalking order" against him. Although the trial court
excused that prospective juror for cause, the trial court
declined to grant a mistrial. The issue for our resolution is
whether that prospective j uror's comment, which was made
in the presence of the other prospective j urors, so tainted the
remaining prospective jurors as to deprive defendant of his
right to an impartial jury. We conclude, as did the Court of
Appeals, that the prospective j uror's comment was not so
inherently prej udicial that the trial court had no choice but to
grant a mistrial. Accordingly, we affirm.
For purposes of the issue presented, the historical
facts can be briefly described. Defendant and the victim had
been friends for many years. After residing together for a
time in the victim's residence, the two had a disagreement,
and defendant moved out. When defendant returned to the
victim's residence to recover some property, the victim and
defendant got into a physical altercation, and defendant left.
The victim then rummaged through some of defendant's
belongings, found two one-gallon jugs of iodine, and poured
their contents on the ground. Shortly afterwards, defendant
heard about the victim's disposal of the iodine and became
enraged. He left numerous angry, profane, and threatening
voice messages on the victim's cell phone. Not long after
defendant left those voice messages, four of defendant's
friends arrived at the victim's house, beat the victim severely,
and stole his car. Based on defendant's role in encouraging
and aiding the crimes against the victim, defendant was
charged with first-degree robbery, first-degree burglary,
unauthorized use of a vehicle, and second-degree assault.
On the day of trial, the trial court assembled a panel
of prospective jurors and began voir dire by asking several
questions of them as a group. The trial court identified the
prosecutor, the defense counsel, and defendant. Among the

Cite as 344 Or 358 361
trial court's first questions was whether any of the prospec
tive j urors knew defendant or the parties' counsel. Seven
answered affirmatively by raising their hands.1 The trial
court then asked each of those prospective jurors who they
knew and in what context. The exchange below occurred with
the third juror so questioned:
"PROSPECTIVE JUROR [Name} : I know [defendant].
"THE COURT: Okay. And in what context?
"PROSPECTIVE JUROR [Name] : Used to be a friend.
I have an outstanding stalking order against him.
"THE COURT: So that would probably not be best if
you served on this?
"PROSPECTIVE JUROR [Name] : Probably not.
"THE COURT: Okay. I'll allow you to be excused."
After the trial court excused that prospective juror,
the court briefly questioned the remaining four who had
raised their hands. Defense counsel then moved for a mis
trial. The trial court deferred a ruling on the motion until
after voir dire was complete. In the later arguments on defen
dant's motion, defendant urged that the entire panel of pro
spective j urors had been "poisoned" by the reference to the
stalking order against defendant. The prosecutor, in
response, disputed that the comment was sufficiently preju
dicial to warrant a mistrial. The prosecutor also argued that
any residual prejudice from the remark could be addressed
through a curative instruction. The trial court denied the
motion, declaring that the comment was not "egregious
enough to rise to the level of a mistrial." The trial court
offered, however, to give a curative instruction to the jury.
Defense counsel expressed concern that such an instruction
would refocus the jurors' attention on the comment and
asked if he could "withhold" a request for such an instruction
until later. The trial court agreed that defense counsel could
1 There appears to have been a total of 24 prospective jurors on the panel in
this case. Of the seven who indicated that they knew either defendant or counsel,
two were excused for cause (the prospective juror who knew defendant, and one
who worked in law enforcement and who knew both the prosecutor and the defense
counsel). The other five all were friends or acquaintances of defense counsel. None
of those prospective jurors was excused for cause.

362 State v. Evans
request the instruction later in the trial. Defense counsel,
however, never did so.
On appeal, defendant challenged the denial of the
motion for mistrial as an abuse of discretion, arguing that the
comment by the excused prospective j uror so tainted the
remaining prospective j urors as to deprive defendant of an
impartial j ury trial in contravention of Article I, section 1 1 , of
the Oregon Constitution. The Court of Appeals rej ected his
argument, State u. Evans, 2 1 1 Or App 162, 154 P3d 166
(2007), and this court thereafter allowed defendant's petition
for review. On review, the parties largely renew the argu
ments that they made to the trial court and to the Court of
Appeals.
Under Article I, section 1 1, of the Oregon Constitu
tion, a defendant in a criminal prosecution has the right to a
"public trial by an impartial jury." See also ORS 136.001(1)
(codifying the same guarantee). The guarantee of an impar
tial jury reflects "several related concerns, including that
jurors be honest, that they not be interested in the outcome of
the case, and that they be free from influence by the par
ties [.)" State u. Amini, 33 1 Or 384, 391, 15 P3d 541 (2000). An
impartial jury, therefore, is one that is not biased "in favor of
or against either party" and that will base its decision on the
"evidence produced at trial and legal standards provided by
the trial court." Id. The fact that a juror has preconceived
ideas about a matter relevant to the case does not per se mean
that a juror cannot be fair and impartial. State v . Barone, 328
Or 68, 74, 969 P2d 1013 ( 1 998). The touchstone of impartial
ity is, instead, the j uror's ability to decide the matter with an
open mind-that is, the j uror's ability to set aside any pre
existing opinions or impressions and to decide the case
impartially.2
2 ORCP 57 Dill, as supplemented by ORS 136.220, governs the various
grounds on which a prospective j uror may be challenged for cause in criminal cases.
See ORS 136. 2 10(1) (so providing). The statutory standards for excluding prospec
tive jurors based on bias set out in that rule reflect the same values and concerns
as the constitutional principle. The rule defines actual bias as "the existence of a
state of mind on the part of a juror that satisfies the court, in the exercise of sound
discretion, that the juror cannot try the issue impartially and without prejudice to
the substantial rights of the party challenging the juror." ORCP 57 D ( l )(gl. The
rule also expressly describes what does not disqualify a juror for cause. In particu
lar, the rule declares that, when a juror forms an opinion on the merits of the cause

Cite as 344 Or
As we have described, defendant's motion for a mis
trial was based on one prospective juror's statement during
voir dire that she had a stalking order against defendant. The
issue is not whether that prospective juror should have been
excused for cause; the trial court concluded that she should
be and removed her from the panel. Neither is the issue
whether the reference to the stalking order was relevant and
proper for a trial jury to consider in deciding defendant's guilt
or innocence of the charges; no such evidence was used at
trial, and the state agrees that it could not have been. The
issue, rather, is whether the comment must be deemed as a
matter of law to have so prejudiced the entire panel of pro
spective jurors that those who were later selected for the jury
could not resolve the case impartially-that is, based on the
evidence and the applicable law.
Defendant does not claim actual bias on the part of
the prospective jurors. Defense counsel examined the pro
spective jurors during the voir dire and, at the conclusion of
his questioning, passed the panel for cause-in other words,
defendant did not challenge any ofthe remaining prospective
jurors for actual bias or inability to try the case impartially.
Defendant therefore is left to a claim of assumed bias. His
argument is that the excused prospective juror's reference to
the stalking order was so inherently prejudicial that the
remaining jurors, because they heard it, must be assumed to
have been unable to disregard what they heard and to try the
case based only on the evidence that would later be adduced
at trial. In essence, defendant's argument is-and must be
that the trial court, as a matter of law, had no choice but to
grant the motion for mistrial. See State v. Larson, 325 Or 15,
22-25, 933 P2d 958 ( 1997) (motion for mistrial is addressed to
sound discretion of trial court; appellate court will not disturb
the ruling unless only one choice was legally permissible).
We have only once before considered whether a
remark made during voir dire by a prospective juror so
tainted the entire panel as to deprive a defendant of the right
to an impartial jury. In State v. Simonsen, 329 Or 288, 986
from something that the juror may have heard or read, "such opinion shall not of
itself be sufficient to sustain the challenge[.]" Id. Instead, the juror is subject to
challenge for cause only if the trial court is satisfied, "from all the circumstances
that the juror cannot disregard such opinion and try the issue impartially." Id.

364 State v. Evans
P2d 566 ( 1999), the defendant successfully appealed his
death sentence, and the case was remanded for a new
penalty-phase trial. During voir dire on remand, one of the
prospective jurors stated that he had heard on the news that
the defendant's earlier death sentence had been overturned.
The trial court denied the defendant's motion to excuse the
entire jury panel for cause. The trial court specifically
instructed the remaining jurors, however, not to consider
statements made by excused prospective jurors during uoir
dire. Id. at 292.
On direct appeal to this court, the defendant argued
that the prospective jurors' exposure to the one juror's refer
ence to the news account biased them and rendered them
unable to try the case impartially. Id. at 292-93. Emphasiz
ing the trial court's superior vantage point in assessing the
effect of that reference, the court concluded that the trial
court's denial of the motion was not an abuse of discretion. Id.
at 294. For guidance, the court looked to two prior cases
involving motions for mistrial based on irrelevant and preju
dicial statements made by witnesses during trial . Id. at 293-
94. 3 As in those prior cases, where the motions were properly
denied, the statement at issue in Simonsen was "brief and
inadvertent" and the prosecutor "did not attempt to capital
ize on [it] ." Id. This court therefore held that the "trial court,
having heard the statement in context," did not abuse its dis
cretion in refusing to dismiss the jury panel. Id. 4
This case and Simonsen are not significantly differ
ent. As was true of the comment made in Simonsen, the pro
spective juror's reference in this case to an outstanding stalk
ing order was isolated and brief, was not emphasized or
dwelled on, and was not used by the state in any way. Also, as
in Simonsen, the trial court heard the statement in context
and was in the best position to gauge its effect on the other
a The cases were State v. Pratt, 3 1 6 Or 561, 583, 853 P2d 827 ( 1993} (mistrial
not required based on witness's isolated reference to defendant's presence on death
row) and State v. Farrar, 309 Or 132, 164, 786 P2d 1 6 1 (1990) ( mistrial not required
for improper statement made in passing and where state did not capitalize on it).
4 Simonsen, like this case, involved a claim ofinherent prejudice and presump
tive bias, rather than actual bias. There, however, the claim was raised through the
procedural device of a motion to dismiss the j ury panel. Here, in contrast, defen
dant raised the claim through a motion for mistrial.

Cite as 344 Or 358
prospective jurors in the pool. We could, on that basis alone,
affirm the trial court's ruling in this case.
We believe, however, that one additional fact that
Simonsen and this case have in common is significant to the
analysis. Specifically, both cases involved mistrial motions
based on a prospective juror's comments during voir dire,
rather than a witness's comments during trial. AB the discus
sion in Simonsen suggests, the two situations are analogous
and a comparison between them is potentially helpful. But in
assessing the prejudicial effect of information to which a trial
jury has been exposed, voir dire is a distinctive procedural
context in at least two respects.
First, voir dire is not an evidentiary phase of the trial.
Instead, by design, it is a pretrial "quest * * * for jurors who
will conscientiously apply the law and find the facts." State v.
Nefstad, 309 Or 523, 534 n 6, 789 P2d 1326 ( 1990) (quoting
Wainwright v. Witt, 469 US 412, 423, 105 S Ct 844, 83 L Ed
2d 841 ( 1985)). Inquiring into the prospective jurors' poten
tial interest or bias in a case is a legitimate way of selecting
fair-minded individuals to serve on the j ury. See id. at 526
(prosecutors appropriately used voir dire to determine
whether prospective jurors were biased in their views on
death penalty). Voir dire thus entails an inherent risk that
the panel of prospective jurors will be exposed to information
revealed by individual prospective jurors who are excused
from the panel for cause.
Second, and relatedly, voir dire permits direct
inquiry into a prospective juror's impressions, opinions, and
biases. Thus, when the voir dire examination exposes an
entire pool of prospective jurors to prejudicial information,
the proceeding permits an actual inquiry into whether those
jurors are nevertheless willing and able to base their verdict
on the evidence adduced at trial and on the law as the trial
court explains it. The same is not true of comments made by
a witness during trial, the prej udicial effect of which must be
determined indirectly based on their potential prej udicial
effect. See generally State v. Pratt, 3 16 Or 56 1 , 583, 853 P2d
827 ( 1993) (deferring to trial court's assessment of prejudicial
effect of witness's improper comment based on trial court's
oversight of entire trial and presence when comment was

State v. Evans
made); State v. Farrar, 309 Or 132, 164, 786 P2d 161 ( 1990)
(same).
Ordinarily, the fact that voir dire is a quest for con
scientious jurors, not an evidentiary phase of the trial, is a
point not likely to be lost on the pool of prospective jurors.
The record in this case confirms that observation. The trial
court began the voir dire examination by advising the panel:
"Each juror must be able to judge this case fairly and objec
tively. So we need to know if any of you know anything
about this case or about any people involved, or if anyone
has formed any opinion about this case or the subject mat
ter of the case."
The trial court conducted much of the voir dire examination
itself and probed the prospective jurors' abilities to be impar
tial in the trial.5 Counsel for both parties also examined the
prospective jurors and were free to ask any questions that
they deemed necessary to satisfy themselves of each prospec
tive juror's impartiality. Defense counsel, for example, asked
the prospective jurors for their assurance that they would
decide the case based on "the facts from the witness stand"
and the law as given to them by the judge. As he concluded
his examination, defense counsel reminded the prospective
jurors that each of them had promised to go into the trial with
"a blank mind," after which he passed the panel for cause.
Defense counsel did not ask the prospective jurors during
voir dire whether hearing the reference to the stalking order
against defendant affected their ability to deliberate impar
tially. Likewise, defense counsel chose not to have the panel
cautioned to disregard the comment. To be sure, counsel
probably followed that course so that the prospective jurors
would not be reminded of the comment. But, having failed to
° For example, in addition to asking the jurors whether they knew defendant
or counsel for the parties, the trial court also asked them whether they had previ
ously served as jurors; whether they had been witnesses in court proceedings;
whether they had been victims of a crime; and whether there was anything in their
personal or family history that, given the nature of the charges, might cause them
to question their own impartiality. Whenever a prospective j uror answered affir
matively-which happened frequently-the trial court asked additional questions
of the individual juror to probe his or her ability to decide the case impartially. The
only two j urors who were excused for cause both candidly volunteered the basis on
which they were potentially biased, and both readily agreed that it would be best
for them not to serve as a j uror in this matter.

Cite as 344 Or 358 367
make that inquiry directly, defense counsel left the evalua
tion of the prejudicial effect of the comment to the trial court.
Years ago, this court observed that a trial jury "is not
such a delicate instrument ofjustice that it can be expected to
function only when wholly free" of information-favorable
and unfavorable-to which the j urors may be exposed out
side the evidentiary confines of the trial itself. State v.
Gardner, 230 Or 569, 578, 371 P2d 558 ( 1962). That obser
vation is particularly apt in assessing the prejudicial effect of
the information to which prospective jurors may be exposed
during voir dire. Just as we do not assume that potential
jurors generally will be unable to set aside any preconceived
opinions or impressions about a case, we are unwilling to
assume that otherwise impartial prospective jurors cannot
disregard the kind of comment that was made in this case.
In assessing the inherent prejudice of the excused
prospective juror's comment on the remaining members of
the panel, we therefore consider, as we did in Simonsen, the
fact that the comment was singular and brief, was not used
by the prosecution to any advantage, and was assessed "in
context" by the trial court. Equally important, the comment
was a candid response to a vital question, one asked in a pro
ceeding that is designed to uncover potential juror bias.
Assessing the effect of the comment on the pool of otherwise
impartial prospective jurors was particularly within the
province of the trial court, who examined the prospective
jurors personally and who observed them throughout the voir
dire. See Nefstad, 309 Or at 528, 528 n 3 (reaffirming settled
principle that appellate courts give great weight to a trial
court's assessment of juror impartiality because of its supe
rior ability to observe demeanor, manner, and bearing while
under examination). On this record, we cannot say that, as a
matter of law, the comment was so inherently prejudicial as
to deprive defendant of his right to an impartial j ury under
Article I, section 1 1 . The trial court therefore permissibly
exercised its discretion to deny the motion for mistrial.
The decision of the Court of Appeals and the j udg
ment of the circuit court are affirmed.