State v. Veatch

This appeal calls on us to determine whether the police denied defendant’s right to consult privately with counsel before deciding whether to take an Intoxilyzer test and to determine the adequacy of a curative instruction given to the jury by the trial court in response to a defense motion for a mistrial. We conclude that the police did not deprive defendant of a reasonable opportunity to obtain legal advice and, thus, that the trial court correctly denied his motion to suppress evidence related to the Intoxilyzer test. However, we also conclude that the curative instruction that the court gave was inadequate and, thus, that the court erred in denying defendant’s motion for a mistrial. Accordingly, we reverse.

Defendant was convicted of driving under the influence of intoxicants (DUII), ORS 813.010(1). He makes three assignments of error on appeal. We reject the first without discussion. In his second assignment, defendant challenges the denial of a motion for a mistrial made after the arresting officer testified that defendant had asked to speak with his attorney before deciding whether he would submit to an Intoxilyzer test. The trial court gave a curative instruction but denied the motion. In defendant’s third assignment of error, he contends that the trial court erred in denying his motion to suppress evidence related to the Intoxilyzer test. In support of that assignment, he asserts that the arresting officer did not leave the room while he left voice mail messages with his attorney and called his mother to ask if she could refer him to another attorney.

We take the facts pertinent to the motion to suppress from the record of the suppression hearing and the facts pertinent to the mistrial motion from the record of defendant’s trial. Defendant was arrested on suspicion of DUII and placed in the back of a police car. While the arresting officer was talking to another officer who had arrived to transport defendant to the Washington County Jail, defendant took his cell phone from his pocket and attempted to make a call. Officer Berry took the phone from him and then drove him to the jail. At the jail, Berry asked defendant if he would agree to *447take an Intoxilyzer test to determine his blood alcohol content. Defendant stated that he wanted to contact his family’s attorney first. Pursuant to jail policy, defendant’s hands remained handcuffed behind his back, so Berry dialed the telephone number and then placed the receiver on defendant’s shoulder so he could hold it between his shoulder and head. It was approximately 4:00 a.m., and the attorney did not answer his telephone. Defendant left two voice mail messages asking him to return his call at the jail. Defendant then called his mother, asking her to refer him to another attorney. Berry testified at the suppression hearing, “It was my understanding that his mother was unaware of any other attorneys that the family used.” Berry offered to let defendant look for another attorney in the telephone book, but, Berry testified, defendant “didn’t desire to do that.”

After defendant left the messages for his attorney, Berry waited half an hour for the attorney to call back. When he did not return the call, Berry then told defendant that he needed a decision as to whether defendant would agree to proceed with the Intoxilyzer test. Defendant initially remained silent, which Berry took as a refusal to take the test. He printed a “refusal card” from the Intoxilyzer machine. Moments later, defendant stood up and walked over to the machine, so Berry decided to let him submit a sample. Defendant blew into the mouthpiece, but he did not blow hard enough for the machine to get a sample. Berry recorded his attempt as another refusal.

Before trial, defendant made a motion to suppress the evidence related to the Intoxilyzer test, arguing that he was denied the right to private consultation with counsel before deciding whether to consent to the test. The court denied the motion.

At defendant’s trial, before the jury was selected, defense counsel, the prosecutor, and the trial court discussed pretrial rulings that a different judge had made earlier. Defense counsel stated that the judge had ruled that there should be “no mention of [defendant’s] telephone calls whatsoever because that’s invocation of a right * * *. And the second prong was no mention of witness Gerry Chase, who’s a lawyer, because the right to call a lawyer is also part of the *448counsel right * * The prosecutor stated that she had a different recollection of the pretrial ruling, acknowledging that “we can’t say he was a lawyer,” but contending that the judge had ruled that evidence about calls could come in. The court ruled that there could be no mention of telephone calls unless the defense opened the door to such evidence and that, even then, “[w]e don’t need to know who it was to * * *.”

In her opening statement to the jury, the prosecutor stated that defendant had attempted to use his cell phone in the back of the police car. Defense counsel interrupted, stating, “Your Honor, I have a matter for the court.” The court responded, “No, I know what it is and it’s fine.” After opening statements had concluded, the jury was sent out of the courtroom. Defense counsel stated that, “for the record,” he was moving for a mistrial. The court interjected that it understood that the motion was based on the prosecutor’s mention of the cell phone, adding, “[I]t’s close, but I knew that’s [what] you were going to do and I would overrule it.”

In its case-in-chief, the state called Berry to testify. After he testified about defendant’s arrest and transport to the jail, his direct examination continued as follows:

“Q. Okay. Did you — first of all, are you trained to operate the Intoxilyzer?

“A. Yes.

“Q. Okay. While at the station, did you read the defendant his rights and consequences?

“A. Yes.

“Q. Did you ask him if he would take the test?

“A. Yes, I did.

“Q. How did he respond?

“A. He wanted to call his lawyer before making that decision.

“[Defense counsel]: Objection. I have a matter for the court.

“THE COURT: Sustained. And if I hear that word again—

*449“[Prosecutor]: Yeah.

“THE COURT: —you’re going to start all over again.

“[Prosecutor]: Right. And, officer, we talked about this.

“THE COURT: To be real honest with you, a person has a right to call their lawyer and you’re not supposed to make any inferences from that, since they have a right to do it.

“And so the State’s not even supposed to bring it up. They brought it up. The seven of us are going to totally ignore it, though they couldn’t. Go ahead.

“[Prosecutor]: Okay. * * * Officer, just so you understand. We talked about this outside. Just answer the questions I ask. Okay?

“[Berry]: All right.

“[Prosecutor]: No talk of—

“[Berry]: Okay.

“[Prosecutor]: —phone calls or lawyers. So, you asked — at some point you asked the defendant would he take a breath test?

“A. Yes.”

Berry went on to testify that defendant did not answer and that he initially printed a “refusal card” but then allowed defendant to give a breath sample. Berry stated that he recorded the attempt as a refusal because, in his view, defendant had not given “an honest effort.”

After Berry finished testifying, the state rested its case, and the jury was excused for lunch. Defendant then moved for a mistrial “based on the comment about the lawyer.” The court responded, “Okay. That’s denied still.”

Several witnesses testified in defendant’s behalf, including defendant himself. Defendant testified that he had consumed one and a half beers with lunch in the early afternoon but had no more alcohol between then and the time he was arrested more than 12 hours later. The jury ultimately found defendant guilty of DUII.

*450On appeal, defendant challenges the denial of his suppression and mistrial motions. We begin with the motion to suppress. Defendant renews his challenge to the introduction of the evidence related to the Intoxilyzer test. He contends that Berry should have given him privacy both when he left the voice mail messages for his attorney and when he called his mother to ask her to refer him to another attorney.1 He relies on a passage in State v. Durbin, 335 Or 183, 194, 63 P3d 576 (2003), in which the Supreme Court stated that, to avoid violating the right to counsel, the police “might find it preferable to inform the driver of their intent to administer the breath test and then, if the driver requests counsel, to allow the driver a reasonable time in which to seek legal advice, in private, before beginning the required observation period [that precedes the test].” Defendant relies in particular on the phrase “to seek legal advice,” arguing that the court held that confidentiality is required not only when an arrested driver is speaking with an attorney, but also while the driver is seeking counsel — that is, while the driver is attempting to locate and establish contact with an attorney.

Defendant reads too much into that phrase in Durbin. Read in isolation, the phrase “to seek legal advice” could be understood to include attempting to locate or contact an attorney. However, the context in which the court used the phrase in Durbin demonstrates that “seeking advice” means actually conferring with counsel. The issue that defendant raises here was not even in play in Durbin. Rather, the only questions before the court were (1) whether “the right to consult privately with counsel is inherent in the right to counsel that Article I, section 11, provides”; (2) whether “the police must afford an arrested driver the opportunity to consult privately with counsel, even if the arrested driver does not make an independent request to consult privately”; and (3) whether the police are justified in limiting the “right to *451consult privately” if the observation period has already begun. Id. at 187-88. Whether the right extends to attempting to locate and establish contact with an attorney was simply not at issue.

Moreover, in answering the first question, the court stated that confidentiality is necessary to encourage the full and frank communication between attorneys and their clients that is essential to the rendition of appropriate legal advice and thus to the right to counsel. Id. at 190 (citing State v. Jancsek, 302 Or 270, 274, 730 P2d 14 (1986) (“Lawyers can act effectively only when fully advised of the facts by the parties whom they represent[.]”)). It concluded that the “defendant’s right to counsel included the right to confer privately with counsel and that his invocation of the right to counsel was sufficient to request an opportunity to confer privately * * Id. at 191 (emphasis added). It concluded further that “the presence of the officer within earshot while [the] defendant consulted with his lawyer breached the confidentiality of the lawyer-client communication and violated [the] defendant’s right to counsel under Article I, section 11.” Id. at 192 (emphasis added); see also id. at 192-93 (concluding that the fact that the officer had already begun the 15-minute observation period did not justify the officer’s continued presence “while [the] defendant consulted with counsel”; the fact that the observation period would have to be terminated does not justify a violation of the defendant’s “right to consult with his lawyer privately”; if a request for counsel is made after the observation period has begun, it is ordinarily not “ ‘too late’ to require that the consultation with counsel be confidential” (emphasis added)). In short, the court held in Durbin that privacy must be afforded while an arrested driver confers with an attorney, not while the driver attempts to locate or establish contact with an attorney.

Consistently with Durbin, we conclude that defendant’s reasonable opportunity to consult with counsel was not violated because Berry remained in the room while defendant left messages and asked his mother for a referral. Indeed, as we noted in State v. Matviyenko, 212 Or App 125, 130, 157 P3d 268 (2007), “an officer may be justified in remaining in the room until contact with an attorney is made *452in order to ensure that the suspect actually calls an attorney rather than using the telephone for some inappropriate purpose.” (Emphasis added.) The trial court did not err in denying the motion to suppress.

We turn to defendant’s mistrial motions. Defendant separately assigns error to the denial of his motion based on the prosecutor’s reference to the cell phone call in her opening statement and his motion based on Berry’s reference to his invocation of the right to counsel. Because it is dispositive, we begin and end with the latter motion.

At the outset, we must determine whether the asserted error is preserved. The state concedes that the trial court understood that defendant intended to seek a mistrial after Berry testified that defendant wanted to call his lawyer before deciding whether to take the breath test.2 It argues, nonetheless, that the actual motion for a mistrial — which came after Berry finished testifying and the state rested— was untimely and therefore did not preserve the issue for appeal. The state also argues that defendant failed to raise any objection to the sufficiency of the trial court’s instruction to the jury to disregard the testimony or to the prosecutor’s admonition to Berry not to mention “phone calls or lawyers.” The state appears to take the position that, because defendant did not object to the trial court’s instruction, he cannot now complain about the court’s failure to grant a mistrial.

We agree with the state, in some respects. Defense counsel’s statement — “I have a matter for the court”— immediately following Berry’s testimony was sufficient to alert the trial court that he intended to move for a mistrial. The court’s response shows that it understood counsel’s intent: It immediately threatened to grant a mistrial, warning the prosecutor that she was “going to start all over again” if defendant’s invocation of the right to counsel was mentioned again, and it instructed the jury to disregard the testimony. Furthermore, when defendant expressly made the motion after Berry finished testifying, the court stated, *453“That’s denied still.” (Emphasis added.) We agree with the state that the trial court understood that defendant intended to move for a mistrial.

We do not agree, however, that defendant made the actual motion too late to preserve the issue for appeal. “In ruling on a motion for a mistrial, a trial court must decide whether to grant the motion, to cure the effect of inappropriate conduct or testimony by giving a proper instruction instead, or to do nothing at all.” State v. Evans, 211 Or App 162, 166, 154 P3d 166 (2007), affd, 344 Or 358, 182 P3d 175 (2008). The purpose behind requiring an immediate mistrial motion is to allow the court to take prompt curative action if the court believes it is warranted. 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.”).

In this case, when defense counsel asserted that he had “a matter for the court,” the court understood what the “matter” was. As the dissent points out, a trial court is vested with broad discretion in controlling the trial proceedings. See State v. Rogers, 330 Or 282, 300, 4 P3d 1261 (2000). Rather than giving defendant an immediate opportunity to make his mistrial motion outside the presence of the jury, the court here took the actions that it believed to be appropriate in response to the offending testimony: It warned the prosecutor of the possibility of a mistrial and gave the jury a curative instruction. Had defense counsel expressly moved for a mistrial at the outset, rather than signaling his intent by merely saying, “I have a matter for the court,” there is no reason to believe that the court’s response would have been any different. Under the circumstances, defendant should not be penalized on preservation grounds because the court chose to respond to the situation as it did.

The dissent contends that defendant was required to make an immediate motion for a mistrial despite the fact that the court gave a curative instruction. 223 Or App at 463 (Edmonds, J., dissenting). Under the circumstances of this case, we disagree. Where it is clear that the trial court understands that the defendant intends to seek a mistrial, and it *454responds by giving a curative instruction, the need for an immediate mistrial motion is obviated. Again, the point of requiring that the motion be made immediately is to allow the court to take prompt curative action, thus averting the need for a mistrial. Shafer, 222 Or at 235; see also State v. Wilson, 121 Or App 460, 470-71, 855 P2d 657, rev den, 318 Or 61 (1993) (where it is clear that the trial court would not take curative action in response to a mistrial motion, preservation principles do not demand that the motion be made immediately); State v. Lundbom, 96 Or App 458, 462, 773 P2d 11, rev den, 308 Or 382 (1989) (same). When the court gives a curative instruction without waiting for an anticipated mistrial motion to be made expressly, the underlying purpose of that preservation requirement is fulfilled.

The dissent asserts that another preservation principle is at play here, arguing that defendant used his motion for a mistrial as a fallback position in the event that he was not acquitted. 223 Or App at 469 (Edmonds, J., dissenting). In some circumstances, it might be reasonable to infer that the defense counsel made a tactical decision to delay making a motion for a mistrial in order to assess how the trial was unfolding and whether it was likely that the jury would return a favorable verdict — in which case, a mistrial would not be desirable. Such a tactical decision undermines the assertion that the defendant cannot obtain a fair trial. In this case, however, defendant’s counsel waited only a short time before making the motion; indeed, he made it at the next break in the trial, after Berry had finished testifying. It seems unlikely that counsel was waiting to see how devastating his cross-examination of Berry would be to the state’s case before deciding whether to make the motion.

In short, we conclude that, with respect to Berry’s testimony, defendant’s mistrial motion does not run afoul of preservation requirements.

We next consider the state’s contention that defendant’s failure to object to the sufficiency of the curative instruction nullified his mistrial motion for purposes of this appeal. We conclude that it did not. Neither we nor the Supreme Court have ever held that, when a trial court gives a curative instruction in response to objectionable testimony, *455the defendant must object to the sufficiency of the instruction in order to be permitted to raise on appeal an otherwise properly preserved mistrial motion based on that testimony. In short, if the court chooses to give a curative instruction rather than declare a mistrial, any error in denying a preserved mistrial motion remains preserved regardless of whether the defendant objected to the sufficiency of the instruction. See State v. Bowen, 340 Or 487, 508-11, 135 P3d 272 (2006), cert den, 127 S Ct 1258 (2007) (considering whether the trial court’s cautionary instructions were sufficient to protect against prejudice to the defendant and, thus, whether the court abused its discretion in denying the defendant’s mistrial motion despite having expressly concluded that the defendant had failed to preserve any claim of error respecting the instructions).

We turn to the merits of defendant’s assignment of error. Defendant contends that the jury was likely to infer from Berry’s testimony that he wanted to call his attorney because he was conscious that he was guilty of driving under the influence. In defendant’s view, the testimony was particularly damaging given that his defense at trial was that he had not consumed any alcohol for at least half a day before he was arrested and thus was completely sober. He contends that a jury would be very disinclined to believe that a person who was actually sober would ask to call an attorney before deciding whether to take a breath test. Defendant also argues that the trial court’s curative instruction was not sufficient to prevent the jury from drawing an adverse inference about his guilt from Berry’s testimony. The state agrees that it is improper to admit evidence of a defendant’s invocation of constitutional rights, but it argues that the curative instruction was sufficient to ensure that defendant received a fair trial.

We review the denial of a motion for a mistrial for abuse of discretion, and we will not reverse a conviction on that basis unless the defendant was denied a fair trial. State v. Smith, 310 Or 1, 24, 791 P2d 836 (1990). A reference by the prosecutor or a witness to the fact that the defendant exercised a constitutional right, such as the right to counsel or the right to remain silent, may prejudice the defendant’s ability *456to have a fair trial if the jury is likely to infer that the defendant exercised the right because he or she was guilty of the charged offense. See State v. Smallwood, 277 Or 503, 505-06, 561 P2d 600, cert den, 434 US 849 (1977) (“There is no doubt that it is usually reversible error to admit evidence of the exercise by a defendant of the rights which the constitution gives him if it is done in a context whereupon inferences prejudicial to the defendant are likely to be drawn by the jury.”); State v. Nulph, 31 Or App 1155, 1162, 572 P2d 642 (1977), rev den, 282 Or 189 (1978) (“Such evidence is generally inadmissible because the state should not benefit from the improper, although perhaps logical, inference that a defendant who invokes his right to counsel is guilty of the charged offense. To permit the introduction of evidence from which such an inference is likely to be drawn would penalize one for exercising his rights.” (Citation omitted.)). “The fact that a prosecutor’s conduct is not intentional does not affect a defendant’s fundamental right to a fair trial.” State v. Grenawalt, 86 Or App 96, 98, 738 P2d 232, rev den, 304 Or 405 (1987).

The context in which a reference is made to the defendant’s invocation of a constitutional right may be such that the jury’s attention is directed away from the adverse inference of guilt based on the invocation. Where the context makes such an inference unlikely, the trial court does not abuse its discretion if it denies the defendant’s motion for a mistrial. State v. Williams, 49 Or App 893, 621 P2d 621 (1980), is illustrative. In that case, the defendant was charged with sexual abuse. During the state’s opening argument, the prosecutor said the following:

“About the only thing that the defendant ever said in response to this whole episode was made the morning after the apartment was searched. That was somewhere around June 26th. And that took place because Ray Broderick, an investigator for the district attorney’s office, returned after executing the warrant the night before because he left his flashlight there. Defendant was the only one there and he said, ‘Cinda took your flashlight and she’ll try and give it back to you. She’s got it at her work.’ Broderick says fine, he’s getting ready to leave and the defendant keeps saying, ‘Hey, what’s the big deal? What’s the big deal? What’s going on? What’s the big deal? What’s this all about?’ Broderick says, ‘Listen, you know, somebody said, or you said that you *457wanted to talk to your attorney first and I don’t want to talk to you about the incident.’ He kept saying, ‘What’s the big deal? What’s going on?’ So Broderick said Well, the big deal is you showing these pictures to Nancy, taking pictures of Nancy, and the other things that Nancy has said.’ His response was, ‘Hey, big deal. She wanted to take her clothes off. So what?’ Well, that’s why we’re here.’ ”

Id. at 896. The defendant moved for a mistrial, which the trial court denied.

On appeal, we noted that “[t]he context in which the comment arose indicate[d] that [the] defendant was trying to get the detective to discuss the matter, and the reference merely stated the detective’s reply.” Id. at 898. In other words, the jury’s attention was likely focused on the defendant’s attempt to discuss the matter rather than on his earlier invocation of the right to counsel. We concluded that “the comment was not made for the purpose of drawing attention to [the] defendant’s exercise of his right to counsel,” and that it “did not occur in a context where inferences prejudicial to [the] defendant were likely to be drawn by the jury.” Id.

Where the context is such that the jury’s attention is not directed away from the inference of guilt that the defendant’s invocation of a constitutional right may give rise to, a mistrial may be necessary. State v. White, 303 Or 333, 736 P2d 552 (1987), illustrates that point. There, the defendant and two other people were separately tried for the murder of a single victim. The defendant in White was tried last. During jury selection, defense counsel told the potential jurors that the defendant would testify in the trial. In the state’s opening statement, the prosecutor informed the jury that the defendant had been called to testify in the trial of one of the codefendants and had refused to do so. The defendant moved for a mistrial. Out of the presence of the jury, the prosecutor told the court that his purpose in telling the jury that the defendant had refused to give a story in the prior trial was to discredit whatever exculpatory story he would tell at his own trial. The court denied the mistrial motion. Id. at 336-37.

The Supreme Court reversed. It stated that a reference by a prosecutor to a defendant’s exercise of constitutional rights is “ ‘usually reversible error * * * if it is done in a *458context whereupon inferences prejudicial to the defendant are likely to be drawn by the jury.’ ” Id. at 341 (quoting Smallwood, 277 Or at 505-06). The court pointed out that the prosecutor had deliberately drawn the jury’s attention to the defendant’s exercise of the right to remain silent. Given that context, the court held that there was a “ ‘presumably harmful effect.’ ” Id. at 342 (citation omitted).

Even where the context is such that the jury is likely to draw adverse inferences about the defendant’s guilt, the prejudicial effect may be cured by an appropriate jury instruction. Id. “[Jjurors are assumed to have followed their instructions, absent an overwhelming probability that they would be unable to do so.” Smith, 310 Or at 26. However, if the jury is likely to have drawn an adverse inference, it is not assumed to have been able to follow a curative instruction that merely told it to disregard the improper statement. See, e.g., White, 303 Or at 343; State v. Mullenburg, 112 Or App 518, 520-23, 829 P2d 98 (1992).

For example, the trial court in White instructed the jury that the defendant’s decision not to testify was not probative and that

“in no way are you to take that into account or in any way to discuss or consider what [the prosecutor] has said in regard to that. It’s not evidence in this case. It’s not to be taken by you as any evidence of the case or have any place in this case.”

303 Or at 338. The Supreme Court stated that, if a trial court is to cure the prejudicial effect of an improper reference to a defendant’s exercise of a constitutional right, the court “must do something more than blandly instruct the jury to forget that it has just seen a white bear.” Id. at 343. Although the court expressed confidence that trial courts can “tailor an instruction that will point out the reason that the jury is to disregard” such comments, it concluded that the instruction that the trial court gave “did no more than tell the jury that [the] defendant’s refusal to testify in [the codefendant’s] trial was irrelevant.” Id. at 343-44. See also State v. Jones, 279 Or 55, 62, 566 P2d 867 (1977) (stating that there may be cases in *459which “the testimony which the jury is instructed to ‘disregard’ is so prejudicial that, as a practical matter, ‘the bell once rung, cannot be unrung’ by such an admonishment”).3

The question in this case, then, is whether the context of Berry’s statement that defendant invoked the right to counsel was such that the jury was unlikely to have drawn an *460adverse inference about defendant’s guilt and, if not, whether the resulting prejudice was cured by the trial court’s instruction to the jury.

We conclude that Berry’s statement likely gave rise to an adverse inference of guilt. The jury was informed that defendant had invoked the right to counsel in response to being asked whether he would submit to a potentially incriminating breath test. Berry’s statement was not incidental to some other point that the jury was more likely to be focusing on. As defendant argues, under the circumstances, a jury would likely infer that a person arrested for DUII would not ask for an attorney unless he or she was concerned about failing the breath test — in other words, a jury would likely see it as a tacit admission of guilt. Because 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.4

We turn, therefore, to the sufficiency of the trial court’s curative instruction. As noted above, the court instructed the jury that “a person has a right to call their lawyer and you’re not supposed to make any inferences from that, since they have a right to do it. And so the State’s not even supposed to bring it up. * * * The seven of us are going to totally ignore it * * The court gave the instruction immediately after Berry made the statement, which is a factor in the effectiveness of a curative instruction. See Smith, 310 Or at 27-28 (quick intervention by the trial court helps cure potential prejudice); cf. State v. Halford, 101 Or App 660, 663, *461792 P2d 467 (1990) (an instruction at the close of trial that the defendant had an absolute constitutional right not to testify and that his decision not to testify could not be considered an indication of guilt was insufficient to cure prejudice because it was not timely given). Nevertheless, given the highly prejudicial implication of Berry’s testimony, we conclude that the instruction did not “miring the bell.” The instruction was, to be sure, less “bland” than the one given in White, but, in our view, informing the jury that a person has a right to call an attorney and that the state is “not even supposed to bring it up” does not negate the inference that the person chose to exercise the right because he was conscious of his guilt.5

The dissent asserts that, unless we can demonstrate that no curative instruction could have cured the prejudice to defendant’s right to a fair trial, the trial court acted within the bounds of the discretion granted to it by the law. 223 Or App at 470 (Edmonds, J., dissenting). That is incorrect. We need only conclude — as we do — that the instruction that the court actually gave was insufficient to cure the prejudice. We need not speculate as to whether a different instruction would also have been insufficient.

The dissent further contends that, even if the jury could infer that defendant’s request to consult with his attorney was an admission of guilt, “there is nothing in the record that warrants the majority’s conclusion that the jury would have been unable to follow the trial court’s instruction in that regard.” Id. at 473 (Edmonds, J., dissenting). We do not doubt that jurors take their obligations seriously. Nevertheless, we think it self-evident that, once a juror has drawn the inference that the defendant tacitly admitted guilt, it would be exceedingly difficult to disregard both the evidence that gave *462rise to that inference and — more importantly — the inference itself.

In sum, although it is true that the trial court “is in the best position to assess the impact of the complained-of incident and to select the means (if any) necessary to correct any problem resulting from it,” State v. Wright, 323 Or 8,12, 913 P2d 321 (1996), it is also true that a trial court abuses its discretion when it selects a means that does not produce a permissible, legally correct outcome. Rogers, 330 Or at 312. Because Berry’s testimony was prejudicial to the defense and the trial court’s instruction did not cure that prejudice, the court abused its discretion in denying defendant’s motion for a mistrial.

Reversed and remanded.