State v. Quebrado

No. 16 May 16, 2024 301

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

CARLOS ALBERTO QUEBRADO,

Petitioner on Review.

(CC 19CR34736) (CA A174385) (SC S070057)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 19, 2023.

Morgen E. Daniels, Deputy Public Defender, Office of

Public Defense Services, Salem, argued the cause and filed

the briefs for petitioner on review. Also on the briefs was

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section.

Doug M. Petrina, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

JAMES, J.

The decision of the Court of Appeals is reversed in part

and affirmed in part. The case is remanded to the Court of

Appeals for further consideration.

Flynn, C.J. concurred and filed an opinion.

______________

* Appeal from Washington County Circuit Court, Ricardo J. Menchaca,

Judge. 323 Or App 308 (2022) (nonprecedential memorandum opinion).

302 State v. Quebrado

Cite as 372 Or 301 (2024) 303

JAMES, J.

This is a case about preservation. The state charged

defendant as an accomplice to second-degree assault and

unlawful use of a weapon. The charges arose from defen-

dant’s codefendant firing a shotgun from the passenger win-

dow of the car that defendant was driving, into another car’s

window, hitting that car’s passenger. Prior to trial, the code-

fendant entered a plea deal with the state in return for her

testimony against defendant. Everything about the state’s

conduct of the case, from the pretrial hearings to its witness

list and voir dire discussions, indicated that it intended to

call her as a witness. However, when the state rested its case

on a Thursday afternoon, it had not called her. The state

had, however, already introduced several of her statements

through other witnesses during its case-in-chief. When the

state rested, the trial court immediately concluded the day’s

proceedings with instructions to counsel that court would

resume the following Tuesday.

In the interim, defense counsel filed a written

motion for a mistrial, or, alternatively, a motion to strike

testimony, arguing that the state’s failure to call the code-

fendant as a witness meant that its reliance on her hearsay

statements violated defendant’s confrontation rights under

Article I, section 11, of the Oregon Constitution. The court

took up that mistrial motion immediately upon resuming

the proceedings on Tuesday. The state did not argue at that

time that defendant’s motion was untimely, and the trial

court engaged with the merits of defendant’s motion, rul-

ing that no confrontation violation had occurred. Defendant

thereafter was convicted. On appeal, the Court of Appeals

affirmed, in a nonprecedential opinion, briefly reasoning

that defendant’s motion had been untimely and therefore

not preserved as error on appeal. State v. Quebrado, 323

Or App 308, 310 (2022) (nonprecedential memorandum opin-

ion). Defendant petitioned for review, which we allowed.

The issue before us on review therefore con-

cerns preservation. And while this case involves only one

motion—a mistrial motion—the preservation analysis of

mistrial motions requires we address two distinct, but

interrelated questions of timeliness—the timeliness of the

304 State v. Quebrado

objection to the act that allegedly created the basis for the

mistrial, and the timeliness of the mistrial motion itself.

First, we consider when a defendant must object to timely

raise a confrontation challenge under Article I, section 11,

of the Oregon Constitution—either at the point when state-

ments that a potential witness had made are admitted, or,

instead, when the state fails to call the potential witness to

testify. Second, we consider whether defendant’s motion for

a mistrial, which was not orally raised immediately upon

the state resting, but instead was filed in written form sev-

eral days later, yet before the next scheduled day of trial,

was untimely, and therefore unpreserved.

As we explain, confrontation under Article I, sec-

tion 11, is more than solely a question of evidence. A poten-

tial Article I, section 11, confrontation violation occurs, not

simply when hearsay evidence is admitted at trial, but when

hearsay evidence is admitted and the hearsay declarant

does not testify at trial and the state fails to show that it was

unable to produce the declarant after exhausting all reason-

able means of doing so. Because not one, but two events need

to occur for an Article I, section 11, confrontation violation,

and because those two events may occur at different points

in a trial, the appropriate time to challenge the admission

of hearsay evidence on confrontation grounds may likewise

vary. Thus, in determining whether a defendant has pre-

served a confrontation objection under Article I, section 11,

courts must recognize that preservation “is a doctrine rooted

in practicality, not technicality.” State v. Skotland, ___ Or

___, ___, ___ P3d ___ (May 16, 2024) (slip op at 7:14-15).

Here, in the circumstances of defendant’s trial, it

was understandable for defendant to forego objecting to the

hearsay testimony when it was offered, because, in light of

how the case had been tried, it was reasonable to expect

that the declarant would testify herself later. The practical

purposes of preservation were served by an objection occur-

ring at the close of the state’s case-in-chief. Here, defendant

did not make that objection immediately when the state

rested, which could well have presented a problem for him.

However, because no significant event occurred in the trial

between the time the state rested and the trial resumed on

Cite as 372 Or 301 (2024) 305

the following Tuesday, and, even more importantly, because

neither the state nor the trial court expressed any concerns

about timeliness or prejudice, we conclude that defendant’s

mistrial motion based on confrontation grounds was timely,

and properly preserved the issue. Accordingly, the decision

of the Court of Appeals is reversed in part and affirmed in

part, and this case is remanded to the Court of Appeals for

further consideration.1

BACKGROUND

The relevant facts are undisputed. Defendant and

his girlfriend, Sisco, were at a bar and began arguing with

another couple, the Dixons. The argument escalated, and bar

staff directed all of them to leave the bar, with their alterca-

tion continuing outside in the parking lot. Eventually, defen-

dant and Sisco drove away; the Dixons left shortly there-

after. Defendant and Sisco then followed the Dixons, with

Sisco shouting at the Dixons and firing a shotgun at them

from the passenger window while defendant drove. Shotgun

pellets hit Ms. Dixon in the forehead and the hand.

A police officer who happened to be in the area saw

defendant’s car and also saw Sisco in the passenger seat

holding a shotgun. The officer began to pursue defendant’s

car, and a short chase ensued. Defendant and Sisco even-

tually abandoned their car and fled on foot; they were later

apprehended. Police searched defendant’s car and found a

12-gauge shotgun and a spent shell in the passenger-door

pocket. A citizen found an unfired shell some distance away.

The shells contained size-eight shot, the same type of pellets

that struck the Dixons’ car. The state charged defendant and

Sisco with attempted murder, second-degree assault, unlaw-

ful use of a weapon, and attempting to elude a police officer.

1

We allowed review on a second question presented in defendant’s petition

for review—whether, when a jury “asks a question during deliberations that indi-

cates that the jury may be proceeding under a legal theory that is not cogniza-

ble under Oregon law, does a defendant’s request that the trial court inform the

jury that the legal theory is not correct constitute a ‘negative instruction’ that

the court is not required to give?” Because we conclude that this case must be

remanded to the Court of Appeals for further consideration of the merits of defen-

dant’s confrontation objection, we exercise our discretion under ORAP 9.20(2) to

decline to reach the jury question issue identified in defendant’s second question

at this time. Our decision here does not foreclose continued litigation on that

matter, should it continue to be at issue following our remand.

306 State v. Quebrado

Sisco entered a plea deal contingent on her agreeing

to testify against defendant, and the trial court later granted

a pretrial continuance so that defendant could conduct discov-

ery in preparation to impeach her. At a later pretrial hearing,

the parties discussed limits on Sisco’s anticipated trial testi-

mony, and, at another hearing, the state represented that it

expected her to testify. At trial, the state included Sisco on its

witness list, subpoenaed her as a trial witness, and read her

name to the jury pool as a potential witness.

During the state’s direct examination of Mr. Dixon,

the state elicited a statement that Sisco allegedly had made

to Mr. Dixon at the bar, to the effect of “I’m going to kill

you.” Defense counsel did not object at that time.2 The state

also elicited testimony from Mr. Dixon that Sisco allegedly

had said to defendant in the parking lot, when he had been

looking for something in his car, “Not right here; not right

here.” Defendant objected to that statement as hearsay,

and the trial court permitted its admission as a cocon-

spirator statement made in furtherance of the conspiracy

under OEC 801(4)(b)(E). Defense counsel made no further

objection at that time. Ms. Dixon, similarly, testified that

she had observed defendant getting into the back of his

car during the altercation and that Sisco had said “No, not

here.” Defendant did not object to that testimony. Finally, a

detective testified that both Mr. and Ms. Dixon had told him

that Sisco had said, “Not here. Not here.” Defendant did not

object to that testimony.

The state then rested its case on a Thursday after-

noon without having called Sisco as a witness. The trial

court adjourned for the day, with instructions to the par-

ties that the case would resume on Tuesday morning. At

that point, it was clear that the state would not be calling

Sisco as a witness. After court adjourned, defendant filed

a written motion for mistrial or, alternatively, to strike

the testimony of the Dixons and the detective relating to

2

Defense counsel later stated that he did not object at the time on hearsay

grounds because he believed a hearsay exception applied. Because we address

only the issue of preservation and not merits of defendant’s confrontation-based

arguments in this case, we express no view as to whether that statement or any of

the other challenged statements constituted hearsay so as to raise confrontation

concerns.

Cite as 372 Or 301 (2024) 307

Sisco’s statements and give a curative instruction, on con-

frontation grounds under Article I, section 11, of the Oregon

Constitution. When trial resumed on Tuesday, the court took

up the filed mistrial motion. At that time, defense counsel

additionally orally moved for a mistrial or else to strike that

testimony, on the same confrontation grounds. Defendant

conceded that all the disputed testimony fell within firmly

rooted hearsay exceptions—his sole argument was that the

state had failed to prove Sisco’s unavailability as required

by Article I, section 11, which grants persons accused of a

crime the right “to meet the witnesses [against them] face to

face.” See, e.g., State v. Copeland, 353 Or 816, 818, 306 P3d

610 (2013) (referring to a defendant’s confrontation right

under Article I, section 11).

In response, the state did not argue that defen-

dant’s motion was untimely or that Sisco was unavailable.

In addressing the merits, however, rather than responding

to defendant’s argument under Article I, section 11, of the

Oregon Constitution, the state advanced an argument under

the Sixth Amendment to the United States Constitution,

that the testimony had described nontestimonial statements

of a coconspirator and, therefore, no Sixth Amendment con-

frontation violation had occurred. The trial court agreed

with the state—including that no confrontation violation

had occurred—and denied defendant’s motion on the merits:

“I’m respectfully going to deny the Motion for a Mistrial

and respectfully decline to give a curative instruction. I

don’t find it’s hearsay and I don’t find it’s testimonial, the

two statements at issue.”3

3

The state also had maintained that the statements at issue were not tes-

timonial and, therefore, the Confrontation Clause did not apply. See Crawford

v. Washington, 541 US 36, 124 S Ct 1354, 158 L Ed 2d 177 (2004) (holding that

the federal Confrontation Clause applies only to hearsay statements that are

“testimonial” in nature). However, only the federal confrontation clause makes

a distinction between testimonial and nontestimonial statements. See State v.

Cook, 340 Or 530, 540, 135 P3d 260 (2006) (explaining that, even though the

United State Supreme Court no longer adheres to the test abrogated by Crawford,

Oregon’s constitutional confrontation rights are governed by the earlier rule,

announced in Ohio v. Roberts, 448 US 56, 100 S Ct 2531, 65 L Ed 2d 597 (1980),

which required both witness unavailability and a firmly rooted hearsay excep-

tion). The trial court, in turn, referred only to the fact that the statements were

not “testimonial,” without addressing defendant arguments under the Oregon

Constitution’s confrontation provision.

308 State v. Quebrado

The trial court added, “I do find you’ve preserved your record.”

In rebuttal closing argument, the state relied on

Sisco’s statements as evidence of defendant’s guilt. Defendant

was convicted of second-degree assault and unlawful use of

a weapon as an accomplice, and he was convicted as a prin-

cipal for attempting to elude a police officer.

On appeal, among other assignments, defendant

assigned error to the trial court’s ruling on his Article I,

section 11, confrontation objection, arguing that the court’s

denial of his motion for mistrial or to strike had “flowed from

a mistaken legal premise” that no confrontation violation

had occurred. The Court of Appeals rejected that argument

on preservation grounds, briefly stating:

“Defendant’s fourth and fifth assignments of error assert

that the trial court erred when it denied his motion for mis-

trial and motion to strike. Considering the totality of the

circumstances, we conclude that defendant’s motions were

untimely. See State v. Sprow, 298 Or App 44, 49, 445 P3d

351 (2019). Accordingly, we reject defendant’s arguments

because they were not preserved.”

Quebrado, 323 Or App at 310.

ANALYSIS

The issue in this case is preservation, and the motion

in question is a mistrial motion. We have stated that, to be

preserved for appeal, a motion for mistrial must be timely.

See State v. Walton, 311 Or 223, 248, 809 P2d 81 (1991) (“To

preserve error, a motion for a mistrial must be timely.”). We

have further noted that, typically, a motion for mistrial is

timely if it is made when the allegedly objectionable and mis-

trial worthy statements or acts are made. Id.; see also 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.”).4

4

The concurrence raises thoughtful questions about the extent to which our

prior decisions may have overvalued timeliness, when considered against the

general goals of preservation. In this case, no party has advanced that argument

or asked us to revisit any prior decisions. We therefore leave that discussion for

another day.

Cite as 372 Or 301 (2024) 309

Accordingly, before we can consider the timeliness

of defendant’s mistrial motion, based on his Article I, section

11, confrontation rights, we must consider when a basis for

a confrontation objection under Article I, section 11, arises.

The state equates confrontation objections to evidentiary

objections, and it advocates for a contemporaneous-objection

rule. That is, the state argues that a confrontation objection

can be timely raised only if made contemporaneously with

the state’s introduction of the purported hearsay statement.

Here, according to the state, defendant was required to object

on confrontation grounds when the state elicited the state-

ments of Sisco through witnesses on direct examination.

There is some support for the state’s position.

For purposes of the Sixth Amendment, the United States

Supreme Court has implied that confrontation objections

may be the equivalent to evidentiary objections, stating

that “[t]he right to confrontation may, of course, be waived,

including by failure to object to the offending evidence; and

States may adopt procedural rules governing the exercise

of such objections.” Melendez-Diaz v. Massachusetts, 557 US

305, 313 n 3, 129 S Ct 2527, 174 L Ed 2d 314 (2009).

If a confrontation objection is the direct equivalent of

an evidentiary objection, there is support for the state’s posi-

tion that a contemporaneous objection is required because,

to challenge an evidentiary ruling on appeal, a litigant typi-

cally must object at the time when the challenged testimony

is proffered. See State v. Clegg, 332 Or 432, 442, 31 P3d 408

(2001) (“Generally, once evidence has been admitted without

restriction, it can be used by the jury for any purpose.”).

However, we decline to create a strict contempora-

neous-objection requirement here, because we disagree with

the state’s characterization of a confrontation challenge as

the direct equivalent to an evidentiary challenge. For pur-

poses of Article I, section 11, a confrontation violation does

not occur solely with the introduction of hearsay statements.

As we explained in State v. Moore, 334 Or 328, 333-34, 49

P3d 785 (2002),

“when a hearsay declarant is not present for cross-

examination at trial, [Article I, section 11,] normally

requires a showing that he is unavailable. Even then, his

310 State v. Quebrado

statement is admissible only if it bears adequate ‘indicia

of reliability.’ Reliability can be inferred without more in a

case where the evidence falls within a firmly rooted hearsay

exception. In other cases, the evidence must be excluded,

at least absent a showing of particularized guarantees of

trustworthiness.”

(Some internal quotation marks omitted.) Accordingly, for

purposes of Article I, section 11, confrontation is not solely

a question of evidence. Rather, Article I, section 11, looks to

the co-occurrence of two events at trial: (1) the state’s intro-

duction of hearsay statements, and (2) the state’s failure to

call the declarant without a showing that the declarant is

unavailable.

Because a confrontation challenge is not the direct

equivalent to a challenge to the admission of evidence but

considers two components—one apparent when the evidence

is admitted (the introduction of hearsay), and one that may

or may not be apparent when the evidence is admitted (the

failure to produce a witness and the witness’s unavailabil-

ity)—and because those two components may not occur at

the same time at trial, a strict contemporaneous-objection

preservation rule is not workable. The complexity of the

inquiry does not lend itself to a one-size-fits-all approach.

Instead, parties and courts must consider the practical pur-

poses of preservation—most fundamentally, to ensure pro-

cedural fairness. Peeples v. Lampert, 345 Or 209, 220, 191

P3d 637 (2008). At its core, preservation asks whether the

parties, and the trial court, had a fair opportunity to meet

the merits of the argument later advanced on appeal and

thereby avoid the error at the outset or to correct the error

upon its occurrence.

In some instances—particularly when the hearsay

statement was made by a declarant whom the parties and

the court are not expecting to testify at trial—preserving

a confrontation objection may require a contemporaneous

objection as the hearsay statement is admitted. A contem-

poraneous objection in that circumstance may place both

the parties, and the trial court, in the best position to avoid

or remedy the error. Any other requirement could allow for

gamesmanship by the defense.

Cite as 372 Or 301 (2024) 311

In contrast, however, when a trial is conducted in

a manner such that it is reasonable to anticipate that the

declarant of a hearsay statement will be called as a witness,

preserving a confrontation objection may not always require

a contemporaneous objection at the time of the hearsay

statement’s admission. Preservation, as a doctrine of practi-

calities, does not require purely performative acts by coun-

sel. A requirement that a confrontation objection be made

contemporaneously to the introduction of a hearsay state-

ment, even when it is reasonable to expect that the declarant

will later be testifying, risks elevating form over substance,

which is antithetical to the goals of preservation. Shields v.

Campbell, 277 Or 71, 77-78, 559 P2d 1275 (1977) (explaining

that preservation does not “promote form over substance but

[promotes] an efficient administration of justice and the sav-

ing of judicial time”). In such a situation, based on the con-

text of how events unfolded at trial, an objection at the close

of the state’s case, when the declarant has unexpectedly not

testified, may sufficiently preserve an Article I, section 11,

confrontation objection. Any other requirement could allow

for gamesmanship by the state.

In this case, every indication in the record shows

that the state intended to call Sisco as a witness. The state

had secured a plea agreement for her testimony. The trial

court had previously continued the trial date so that defen-

dant could conduct discovery in preparation to impeach

Sisco after she had agreed to testify against defendant.

The parties had discussed at a pretrial hearing limiting the

scope of Sisco’s trial testimony. The state had included Sisco

in its witness list, subpoenaed her as a trial witness, and

read her name to the jury pool. In short, on this record there

was no reasonable basis to believe that the state would not

call Sisco as a witness. Considering all those circumstances,

we conclude that the practical purposes of preservation were

served by defendant’s objection at the close of the state’s

case, rather than at the time when Sisco’s hearsay state-

ments were admitted.

As noted earlier, although this case involves one

mistrial motion, analytically the issue involves two con-

stituent parts: (1) the timeliness of the objection to act that

312 State v. Quebrado

allegedly created the basis for the mistrial, and (2) the

timeliness of the mistrial motion itself. Having discussed

the first of those, we now address the second. As noted, the

state rested its case without calling Sisco as a witness in the

afternoon, on a Thursday. Apparently, the court had previ-

ously set a trial schedule with the parties that the trial pro-

ceedings would end for the week on Thursday, then resume

the following Tuesday. Upon the close of the state’s case, the

trial court said:

“[PROSECUTOR]: At this time, Judge, the State rests.

“[THE COURT]: All right. Okay it is roughly 3:40

[p.m.]. The State has rested, ladies and gentleman. * * *

Thank you all very much for being here this week. [Followed

by instructions to return to the courthouse the following

Tuesday at 9:00 a.m., together with other instructions, and

excusal of the jury.]

“(Outside the presence of the jury at 3:41 p.m.:)

“[THE COURT]: Okay. The jury is outside the court-

room. The State has rested. My thoughts are to take up any

additional things on Tuesday * * *. It’s been a long day.”

At that point, the prosecutor responded, “That’s fine with

me, Judge.” The trial court then adjourned.

During the intervening break in the trial proceed-

ings, defendant filed a written mistrial motion, or in the

alternative a motion to strike, based on the state’s alleged

confrontation violation. On Tuesday, the trial court called to

order and immediately took up defendant’s motion.

In this court, the state contends that the delay

between the Thursday afternoon when the state rested

its case, and the Tuesday morning when the court consid-

ered defendant’s mistrial motion, renders the issue unpre-

served. The state more particularly argues that defendant

was required to move for a mistrial on Thursday, and any

delay was fatal to preservation. In the context of this case,

we disagree.

Broadly speaking, mistrial motions are favored

at the time when the objectionable act occurs. See State v.

Montez, 309 Or 564, 601, 789 P2d 1352 (1990) (to preserve

Cite as 372 Or 301 (2024) 313

error, a motion for a mistrial must be raised in the trial

court); Shafer, 222 Or at 235 (generally, a mistrial motion

is timely if it is made when the allegedly objectionable error

was made). However, we have cautioned that, when a motion

for mistrial is not made immediately following the objec-

tionable act, such a motion may nevertheless be timely and

preserved if “no significant lapse of time, no additional tes-

timony, no recess, and no discussion of another issue” took

place. State v. Larson, 325 Or 15, 22, 933 P2d 958 (1997)

(mistrial motion was timely when a discussion that took up

only two pages of transcript had occurred before the defen-

dant moved for mistrial, following improper statement by

prosecutor).

The flexibility in our approach to the timing of mis-

trial motions once again emphasizes the practical aspect of

preservation. As we have explained, “[w]hat is required of a

party to adequately present a contention to the trial court

can vary depending on the nature of the claim or argument;

the touchstone in that regard, ultimately, is procedural fair-

ness to the parties and to the trial court.” Peeples, 345 Or at

220.

One pragmatic touchstone of preservation in the

context of a motion for mistrial is whether the parties and

the trial court would have been in a superior position to cure

the deficiency if the motion had been raised earlier in the

proceedings. Our decision in Shafer provides such an exam-

ple. In that case, the defense attorney had asked a prosecu-

tion witness who had sat inside the courtroom bar about his

presence there, and the trial judge then stated, “ ‘I am the

one that had him sit on the inside of the rail.’ ” 222 Or at 234.

The defendant moved for a mistrial on a subsequent day of

trial, arguing that the prosecution witness had received a

“judicial blessing,” which had prejudiced the jury against

the defendant. Id. We concluded, however, that any appear-

ance of undue recognition arising from allowing the witness

to sit inside the bar could have been cured with a timely

objection and, therefore, the issue had not been preserved.

Id. at 235.

Two considerations lead us to conclude that the

practical purposes of preservation were served here, even

314 State v. Quebrado

though defendant did not raise the issue immediately upon

the state resting on Thursday. First, between when the

trial court dismissed the parties on Thursday, and when it

took up the mistrial motion on Tuesday morning, no trial

actions had occurred. No other issue was discussed. And no

other evidence was presented in the time between those two

events. In other cases, we have cited the lack of further trial

developments as an important factor in evaluating whether

a mistrial motion was timely. Larson, 325 Or at 22.

Even with the absence of such trial developments,

of course, it is possible that the state could have identified

some prejudice from defendant’s delay, such as by objecting

that Sisco was no longer available. Thus, the second consid-

eration significant to our analysis is that the state did not

do so. Before us, the state maintains that, by the time that

defendant moved for a mistrial, it was too late to call Sisco

as a witness and mend the harm. The state, however, did

not make that argument in the trial court or present any

evidence to support it. To the extent the state is now advo-

cating we affirm the trial court on timeliness, under a “right

for the wrong reasons” rationale, that argument is foreclosed

because the record might have developed differently. See

generally Outdoor Media Dimensions Inc. v. State of Oregon,

331 Or 634, 659-60, 20 P3d 180 (2001) (considering whether

record would have developed differently had the issue been

raised in the trial court). For example, the state could have

explained, during the Tuesday hearing on that motion, why

Sisco had been unavailable to testify or how it had been prej-

udiced by defendant not moving for a mistrial on Thursday.

It could have moved to reopen its case. It did not.

As we stated in a different preservation case issued

today, “the winds of preservation can be gauged by looking

to the weathervane of trial court surprise: Would the trial

court be taken aback to find itself reversed on this issue,

for this reason?” Skotland, __ Or at __ (emphasis in origi-

nal) (slip op at 11:1-3). That inquiry is applicable here, as

well, though in this context the trial court was affirmed on

appeal. Would the trial court be surprised to learn that the

Court of Appeals affirmed its ruling—but on preservation

and timeliness grounds—when no party, nor the court itself,

Cite as 372 Or 301 (2024) 315

had considered defendant’s mistrial motion to have been

untimely and instead addressed the merits? The answer here

is yes. Neither the parties, nor the trial court, expressed any

concern about the timeliness of defendant’s mistrial motion.

They were in the best position to evaluate whether taking

up the issue on Tuesday morning, as opposed to Thursday

afternoon, placed the court in a worse position to be able

to address the error; no one so indicated. Instead, the trial

court stated, on the record, that defendant had preserved

the issue.

In short, all the policy objectives underlying the

doctrine of preservation were satisfied here. Under the facts

of this case, a defense objection on confrontation grounds

under Article I, section 11, at the close of the state’s case

was sufficient to preserve that objection. As explained,

defendant raised that objection by moving for a mistrial (or,

alternatively, to strike the disputed testimony) during the

interim time between the end of the trial proceedings one

week and the start of proceedings the following week, with

no other trial event, let alone a significant trial event, occur-

ring. Neither the state at trial, nor the trial court, claimed

surprise or asserted that the timing of defendant’s motion

for a mistrial prevented a fair adjudication on the merits.

The state fully grappled with and responded to the merits of

defendant’s argument, and the trial court similarly consid-

ered the merits and issued a merits-based ruling.

We conclude that defendant’s motion for a mistrial

on confrontation grounds under Article I, section 11, was

timely and therefore preserved the issue for appeal. The

Court of Appeals erred in concluding otherwise and should

have proceeded to address defendant’s assignments of error

concerning his motion for mistrial (or, alternatively, his

motion to strike the disputed testimony).

The decision of the Court of Appeals is reversed

in part and affirmed in part. This case is remanded to the

Court of Appeals for further consideration.

FLYNN, C.J., concurring.

I agree with the majority that defendant preserved

his challenge to the trial court’s denial of his motion for

316 State v. Quebrado

mistrial. I also agree with the majority that defendant’s

motion for mistrial was timely under the circumstances of

this case. But I write separately to question whether the

two issues are as closely linked as some of our decisions may

suggest.

As the majority explains, the preservation require-

ment serves “to ensure procedural fairness” to both the

parties and the trial court. ___ Or at ___ (citing Peeples

v. Lampert, 345 Or 209, 219-20, 191 P3d 637 (2008) (also

recognizing that “preservation fosters full development

of the record” for purposes of appeal)) (slip op at 10:19-21).

“Preservation gives a trial court the chance to consider and

rule on a contention, thereby possibly avoiding an error alto-

gether or correcting one already made, which in turn may

obviate the need for an appeal.” Peeples, 345 Or at 219; see

also State v. Brown, 310 Or 347, 356, 800 P2d 259 (1990)

(emphasizing that the reasons for the rule requiring pres-

ervation in the trial court are to “allow the adversary to

present its position and to permit the court to understand

and correct any error”).

I agree with the majority that the purposes of pres-

ervation were fully served when defendant moved for a mis-

trial on the asserted basis that the state’s introduction of

hearsay statements without calling the declarant as a wit-

ness violated defendant’s rights under the Confrontation

Clause. ___ Or at ___ (slip op at 16:13-14). The state had the

opportunity to respond on the merits to defendant’s motions,

the trial court had the opportunity to rule on the merits,

and the record is fully developed. Thus, applying our long-

standing rules of preservation, there would be no question

that defendant’s claim of error was preserved for appeal. See

State v. Hitz, 307 Or 183, 189, 766 P2d 373 (1988) (conclud-

ing that the defendant preserved his claim of error because

“[t]he state was not ambushed or misled or denied an oppor-

tunity to meet defendant’s argument in this case”).

Nevertheless, the Court of Appeals pointed exclu-

sively to the timing of defendant’s motion, concluded without

elaboration that the motion was untimely, and from there

concluded that any challenge to the court’s denial of a mis-

trial necessarily was unpreserved. See State v. Quebrado,

Cite as 372 Or 301 (2024) 317

323 Or App 308, 310 (2022) (nonprecedential memorandum

opinion) (concluding that defendant’s motion for mistrial

was untimely and, “[a]ccordingly,” rejecting defendant’s

challenge to the denial as “not preserved”).

The court’s equating of timeliness with preserva-

tion is understandable. A series of opinions from this court

during the 1990s offered such cursory rejections of a defen-

dant’s challenge to the denial of a motion for mistrial that

they arguably suggest that timeliness supplants our usual

preservation analysis. See, e.g., State v. Barone, 328 Or 68,

90, 969 P2d 1013 (1998), cert den, 528 US 1135 (2000) (sum-

marily announcing that the defendant’s “mistrial request

was untimely and, consequently, did not preserve the alleged

underlying error for review”); State v. Hayward, 327 Or 397,

409, 963 P2d 667 (1998) (summarily announcing that the

defendant’s motion for mistrial “was not timely and hence

was not preserved”); State v. Williams, 322 Or 620, 631, 912

P2d 364, cert den, 519 US 854 (1996) (summarily announc-

ing that the defendant’s motion for mistrial “was not timely

and, thus, that claim of error was not preserved for review”);

State v. Walton, 311 Or 223, 248, 809 P2d 81 (1991) (sum-

marily announcing that, “[t]o preserve error, a motion for a

mistrial must be timely”).

But I would caution against so readily substituting

a timeliness test for the preservation analysis we typically

employ—as the Court of Appeals did here—especially when

“untimely” is, itself, used as a categorical label for any motion

that has not been made immediately after the concerning

incident. The timeliness of a motion for mistrial fits within

our framework for analyzing whether the mistrial issue was

preserved for purposes of appeal; if nothing else, delay in

bringing the motion may have eliminated the court’s ability

to correct the error with action short of a mistrial, which,

in turn, could be a reason to conclude that any challenge

to the denial of a mistrial was unpreserved. But not every

error can be corrected short of a mistrial, and, conversely,

not every delayed objection comes too late for the trial court

to take lesser corrective action. As we long ago emphasized

in explaining the rule of preservation, “[e]fficient procedures

are instruments for, not obstacles to, deciding the merits,

318 State v. Quebrado

particularly when the alternative is a criminal conviction

that lacks a basis in law or in fact.” Hitz, 307 Or at 188-89.

In prior cases, the Court of Appeals has taken a

“more nuanced approach” to evaluating whether a motion

for mistrial was preserved, including holding “that a mis-

trial motion was timely, even if not instantaneously made,

when made under such circumstances that the underlying

purpose of that preservation requirement is fulfilled.” State

v. Sprow, 298 Or App 44, 49, 445 P3d 351 (2019) (internal

quotation marks and citations omitted). That reasoning

appears to fold timeliness back into the preservation frame-

work, and I agree with that approach.

Indeed, to the extent that this court’s 1990s-era

mistrial cases appear to compel a deviation from our estab-

lished approach to preservation, they may not survive close

scrutiny. Not one case in the series explains why the timing

of a motion for mistrial can present a categorical obstacle to

concluding that an appellant satisfied the purposes of pres-

ervation, which this court already had announced in Hitz

and Brown. And the categorical approach to preservation

was questionable from the start. Walton—which announced

that, “[t]o preserve error, a motion for a mistrial must be

timely,” 311 Or at 248—is the earliest case in the series, and

it attributes that categorical link to State v. Montez, 309 Or

564, 789 P2d 1352 (1990). But Montez does not support the

proposition that Walton attributes to it, because the mistrial

issue in Montez was entirely unpreserved—the defendant

had not moved for a mistrial and later sought “plain error”

review on appeal. 309 Or at 601. And the other cases in the

series merely followed Walton’s lead—with Williams citing

Walton, 322 Or at 631; Hayward citing Williams, 327 Or at

409; and Barone citing both Walton and Williams, 328 Or at

90. But defendant has not asked us to disavow Walton and

its progeny, and the reasoning of the Court of Appeals in

Sprow may illustrate that the Walton line of cases can sim-

ply be limited. Both are questions for another day. Therefore,

I concur.