STATE v. VELAZQUEZ MUNOZ (2026)

Defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, raising four assignments of error. In his first assignment of error, defendant argues that the trial court abused its discretion in denying his motion for continuance after the state committed a discovery violation. In his second assignment of error, defendant argues that the trial court abused its discretion in denying defendant's motion to strike a prospective juror for cause. In his third and fourth assignments of error, defendant argues that the trial court plainly erred in allowing the prosecutor to make certain statements during rebuttal closing argument that defendant contends were improper. For the reasons discussed below, we affirm.

Defendant was pulled over by a state police trooper for speeding. The trooper, suspecting defendant was impaired by alcohol based on his observations and defendant's performance on field sobriety tests, arrested him and took him to county jail. Once at the jail, the trooper began reading aloud to defendant the implied consent form for administering a breath test but realized that defendant might have trouble understanding English. Two jail deputies who spoke Spanish volunteered to help translate. One of the deputies asked defendant in Spanish if he would be willing to provide a voluntary breath sample and defendant agreed. The other Spanish-speaking deputy was present during the encounter. The breath test showed a blood-alcohol content of .23 percent, higher than the permissible threshold of .08 percent. ORS 813.010(1)(a). Defendant was charged with DUII based on that evidence of intoxication.

Several months after defendant was charged, defendant's counsel appeared at a trial readiness hearing and reported that they were ready for trial. However, on the morning of trial, defense counsel raised a discovery issue. Defense counsel said that the state had given her the email addresses for the two deputies at the jail who spoke Spanish but had not given her their telephone numbers and addresses, as required under ORS 135.815.¹ Due to that omission, defense counsel requested that both of those witnesses be excluded. Defense counsel moved to exclude evidence from the arresting officer for the same reason. The prosecutor noted that the jail's phone number was readily available online and argued that if the court were to find a discovery violation, the court should grant a continuance rather than an exclusion. Defense counsel said she was amenable to that solution. The court stated that there was “a breach of a formality of the statute” and suggested that defense counsel make a call to one of the witnesses before trial began.² After unsuccessfully trying to contact one of the Spanish-speaking deputies, defense counsel moved for a continuance. However, the trial court denied defendant's motion for a continuance, noting that since defense counsel was provided with the witnesses’ names and employers, she had the resources to contact them long before the day of the trial.

In his first assignment of error, defendant argues that the trial court abused its discretion in denying his motion for a continuance. We review a trial court's denial of a motion for a continuance for abuse of discretion. State v. Ferraro, 264 Or App 271, 280, 331 P3d 1086 (2014). “Additionally, we will not overturn a denial of a defendant's motion for a continuance unless the defendant demonstrates prejudice.” Id. at 281.

Defendant argues that a court's discretion to deny a continuance is limited by ORS 135.865,³ which governs remedies for discovery violations. State v. Pilon, 321 Or App 460, 468, 516 P3d 1181 (2022). Under the statute, he argues, the court is required to impose a remedy for a discovery violation. Additionally, defendant contends that the denial of the continuance was prejudicial. He argues that the discovery violations meant that defense counsel was unable to fully cross-examine the deputy who testified about defendant's breath test and had limited time to speak with the arresting officer, key witnesses in defendant's case.

The state responds that it is not an abuse of discretion for a court to deny a day-of-trial motion for continuance where the continuance is needed due to the moving party's lack of effort. State v. Melvin, 335 Or App 594, 597, 558 P3d 875 (2024). Additionally, the state notes that while ORS 135.865 may govern remedies for discovery violations, we have noted that the statute establishes a wide range of discretion on the part of the trial court. Pilon, 321 Or App at 468. Finally, the state argues that defendant has not established that the denial of his motion for a continuance prejudiced his case.

We conclude that the trial court did not abuse its discretion in denying defendant's motion for a continuance. First, as the state points out, we have held that generally “denial of a motion for a continuance on the day of trial is unlikely to be an abuse of discretion” although that is not a “hard-and-fast rule and instead depends on the circumstances.” Melvin, 335 Or App at 597 (internal quotation marks omitted). The trial court properly considered those circumstances, including the fact that defendant had the information necessary to contact the deputies, and concluded that it did not have to grant a continuance brought on the day of trial. Second, although the denial of discovery sanctions is evaluated under the framework of ORS 135.865, that does not mean that a trial judge is required to impose a remedy if a discovery violation occurs. Pilon, 321 Or App at 473. Instead, the threshold issue is prejudice and “[t]he presence, or absence, of prejudice will determine whether no remedy is a permissible option in the range of discretion.” Id. The prejudice inquiry focuses on “the extent of surprise and the impact of the violation on trial preparation.” Id. Where defense counsel knew about the witnesses and had adequate information to contact them, confirmed that she was trial ready, and did not bring up the issue until the day of trial, defendant has not demonstrated prejudice. The trial court did not abuse its discretion in denying defendant's motion for a continuance.

In his second assignment of error, defendant argues that the trial court abused its discretion when it denied defendant's motion to strike a prospective juror for cause. Defendant's argument is unusual in that he does not contend that the objectionable prospective juror was actually seated as a juror. Rather, defendant contends that the trial court erred because, by denying defendant's motion to strike the prospective juror, the court purportedly implicitly informed the rest of the jury pool that it agreed with the prospective juror's misunderstanding of the state's burden of proof.

During voir dire, defense counsel moved multiple times to strike a particular prospective juror for cause. The prospective juror expressed unhappiness with the possibility of the trial taking two days. She agreed that she could put aside her issues with not wanting to be there for one day but stated that she could not “see why this would have to go on longer than one day.” Additionally, the juror expressed confusion about the burden of proof:

“[DEFENSE COUNSEL]: My question to you is, is it my burden to prove this case beyond a reasonable doubt?

“PROSPECTIVE JUROR: No. It's your burden to try to prove that he's innocent.

“[DEFENSE COUNSEL]: I don't have to prove that he's innocent. He's presumed innocent, remember?

“PROSPECTIVE JUROR: Okay.

“[DEFENSE COUNSEL]: Do you agree that he's presumed innocent?

“PROSPECTIVE JUROR: Yeah.

“[DEFENSE COUNSEL]: So, do you agree that I don't have to prove him innocent?

“PROSPECTIVE JUROR: Hmm. That's an interesting question. I don't have an answer for it.

“[DEFENSE COUNSEL]: Your Honor, I would inquire again.

“THE COURT: I don't find that that comes to the level of excusing for cause.

“[DEFENSE COUNSEL]: As to whether or not my client is innocent at the forefront? Okay.

“THE COURT: The juror stated he's innocent and it's the State's burden to prove his guilt beyond a reasonable doubt.”

The court rejected defendant's for-cause challenge to the prospective juror. Defense counsel then proceeded to further explain to the prospective jury pool both the state's burden of proof and the meaning of “beyond a reasonable doubt.”

As noted, defendant argues that by declining to strike the juror for cause, the court implicitly endorsed the prospective juror's statements—and therefore, defendant was denied a trial before a fair and impartial jury, because the other jurors were misled by the prospective juror's statements and the court's reaction to them. Additionally, defendant asserts that the jury instructions were not adequate to cure the prospective juror's misstatements of the law because the instructions did not clarify that defendant had no burden of proof. The state argues that defendant's claim is unpreserved, and at any rate, the trial court did not err by refusing to strike the juror.

Even assuming without deciding that defendant's argument is preserved and that the court erred in not striking the juror, we still affirm. A trial court's erroneous denial of a defendant's for-cause challenge does not require reversal if the denial “did not prejudice [the] defendant in respect to a substantial right.” State v. Villeda, 372 Or 108, 119, 546 P3d 268 (2024). Defendant has not demonstrated prejudice in respect to a substantial right. He does not contend that the challenged juror was seated or that any member of the jury panel that actually decided his case should have been excused for cause. See State v. Wright, 294 Or App 772, 774, 431 P3d 471 (2018), rev. den., 364 Or 294 (2019) (no reversible error where the defendant did not create a record that he was compelled to accept an objectionable juror).

We are also not persuaded by defendant's argument that he was nevertheless prejudiced because the trial court “implicitly endorsed” the prospective juror's statements in a way that improperly influenced the jurors who were ultimately seated. It is true that the trial court did not correct the prospective juror each time she made a misstatement. But defendant does not point to law demonstrating that the court had a legal duty to do so each time. Ultimately, the court ended that discussion by noting that the prospective juror had—at least at one point—stated that defendant was presumed innocent and that the state had the burden to prove his guilt beyond a reasonable doubt. Significantly, the court and the parties reiterated the correct burden of proof multiple times both before and after voir dire. The court later again instructed the seated jury on the state's burden of proof and defendant's presumption of innocence. The record does not demonstrate that the jury misunderstood the burden of proof as a result of the court's refusal to strike the prospective juror or that the court was endorsing the prospective juror's misunderstanding of the burden of proof. We are not persuaded that defendant was prejudiced by that refusal, and accordingly, even if the trial court erred, any error is not grounds for reversal. Villeda, 372 Or at 119.

In his third and fourth assignments of error, defendant argues that the trial court plainly erred when it allowed the prosecutor to advance certain statements in rebuttal closing argument that he claims were prejudicial. Defendant did not object at trial to either of the challenged statements, and his argument is therefore unpreserved.

The first step in our plain error analysis is to determine whether the claimed error qualifies as plain error. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013) (“For an error to be plain error, it must be an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court to choose among competing inferences.”). For a prosecutor's misstatements to rise to the level of plain error, it must be “beyond dispute” that they “were so prejudicial as to have denied defendant a fair trial.” State v. Chitwood, 370 Or 305, 312, 518 P3d 903 (2022) (internal quotation marks omitted). In other words, the improper argument must have been so prejudicial that it would have been legal error for the trial court to have denied a motion for a mistrial. Id. at 321. To meet that standard, the statements must have been both obviously improper and incurable. State v. Perez, 373 Or 591, 606, 568 P3d 940 (2025). Statements are not obviously improper if “there was more than one way that the jury could have understood each of th[e] comments, not all of which were impermissible.” Id. at 607. Moreover, even if statements are improper, they must also be “so egregious that striking them or giving a curative instruction would have been insufficient.” State v. Durant, 327 Or App 363, 365, 535 P3d 808 (2023), rev. den., 374 Or 143 (2025). “In other words, prosecutorial statements that were improper but curable are not an appropriate subject of plain-error review, because, in such circumstances, the defendant was not denied a fair trial.” Id. (emphasis in original). If we determine that the error is plain, the second step is to decide whether to exercise discretion to correct the error. Chitwood, 370 Or at 311.

In his third assignment of error, defendant takes issue with the following emphasized portion of the prosecutor's rebuttal closing argument:

“The Defense is trying to tell you a story about a man who is here from a different country, doesn't speak the language, who got railroaded by the police because he didn't understand the processes that were happening. I understand why they would want to tell you that story, it's maybe one that would be compelling in a movie, a book, something like that. This maybe matches some of the things that are happening in national news. There's a problem with the Defense telling you this story, it doesn't match up with the evidence that we've seen here in court.”

(Emphases added.) Defendant argues that the prosecutor's statement was an inflammatory appeal to the jury's passion, denigrated defense counsel, and attacked the way that defense counsel had litigated the case. In context, however, the prosecutor's rebuttal closing argument attempted to respond to defendant's theory, articulated in defendant's closing argument, that the trooper's investigation was inadequate because defendant did not speak English and could not understand the trooper. The prosecutor challenged that theory by pointing to specific evidence that they contended demonstrated that defendant had understood the trooper. Although the recasting of defendant's closing argument as a “story” more appropriate for a movie or book may have exaggerated or unfairly cast what was otherwise just defendant's closing argument or theory of the case, it is not obvious that the statement was an improper attack on defense counsel or an inflammatory argument that appealed to the jury's passion, and that is certainly not the only interpretation of that argument. Therefore, it does not meet the standard for plain error. Perez, 373 Or at 607.

In his fourth assignment of error, defendant challenges another portion of the prosecutor's rebuttal closing argument. The prosecutor addressed defendant's argument made in closing that the trooper had violated defendant's constitutional rights in administering the breath test. The prosecutor explained that the breath test was admissible evidence and the jury would not have heard it if it had violated defendant's constitutional rights.⁴ The prosecutor further explained:

“What the Defense is doing by making that argument is they recognize there are limited defenses available in this case. They look at the evidence * * * and they go, ‘Oh man, we don't—we don't have much to do. So what are we going to do? We're going to say inflammatory things to the jury and maybe we'll scare ‘em into not convicting him.’ That's what the Defense just did. Don't let them do that to you.”

(Emphasis added.) Defendant argues that the italicized statement was plainly improper because it appealed to the jury's passion or prejudice and was an inappropriate attack on defense counsel.⁵

The fourth assignment of error presents a closer issue. However, even assuming that the prosecutor's italicized statement above was improper, we are unpersuaded that it was “so egregious” as to have denied defendant a fair trial such that any error could not have been adequately addressed by giving a curative instruction. Durant, 327 Or App at 365. “We must assume that the jury could have followed a curative instruction to disregard the prosecutor's remarks, unless there is an overwhelming probability that it could not have.” State v. Settlemier, 333 Or App 179, 182, 551 P3d 995 (2024), rev. den., 373 Or 212 (2025) (internal quotation marks omitted). “Generally, a proper jury instruction is adequate to cure any presumed prejudice from a prosecutor's misconduct” unless the statement is “so prejudicial that, as a practical matter, the bell once rung, cannot be unrung by such an admonishment.” Chitwood, 370 Or at 311-312 (internal quotation marks omitted); see also State v. Federico, 375 Or 473, 488, ––– P3d –––– (2026) (acknowledging the various factors that can influence whether an improper statement by a prosecutor is curable, including whether the misconduct offends a constitutional rule or an evidentiary rule and whether the misconduct is careless or inadvertent versus deliberate, persistent, and inflammatory). We conclude that the challenged statement here is not “among the rare statements” that meet that standard. Settlemier, 333 Or App at 182.

In State v. Roberts, 340 Or App 220, 223, 570 P3d 279 (2025), we concluded that a prosecutor's rebuttal closing argument that stated that defense counsel had “fudged” in their closing argument was improper. The argument suggested that defense counsel had acted dishonestly and encouraged the jury to decide defendant's guilt based on that improper characterization of defense counsel. Nevertheless, we concluded that the statement, in the entire context of the argument, was not so improper that it likely influenced the jury to decide defendant's guilt based on defense counsel's character rather than the evidence. Id. at 225-26. Even acknowledging that the prosecutor's statements were the final argument heard by the jury, we reach the same conclusion here that we did in Roberts. The prosecutor contended that defense counsel said “inflammatory things” to scare the jury because it lacked a defense and to avoid the evidence. The prosecutor's rebuttal argument maligned defense counsel's closing arguments and focused the jury on defense counsel's conduct rather than the evidence.

But, as in Roberts, the prosecutor's statement was not so prejudicial as to deny defendant a fair trial such that the jury was influenced to decide the case based on the prosecutor's characterization of defense counsel rather than the evidence. The prosecutor's statement was not the type of egregious statement that would deny defendant a fair trial. See, e.g., Federico, 375 Or at 493-95 (concluding that the prosecutor's suggestion that the jurors should think about how they would justify their verdict to “loved ones” and “people [they] care about” were “antithetical to the principles underlying a fair trial,” and were so prejudicial as to deprive the defendant of a fair trial); State v. Clark, 341 Or App 54, 59-60, 572 P3d 323 (2025) (holding it was plain error under Chitwood where the prosecutor referred to the defendant as a “predator”; improperly suggested that inconsistencies in the testimony were because the defense had forced the state to adopt generic forensic interviews in child sexual abuse cases; and referred to defense counsel's “insulting” conduct in presuming, as a grown man, how a child should have responded when asked about how a young girl would feel having sex for the first time); State v. Lundbom, 96 Or App 458, 461-62, 773 P2d 11, rev. den., 308 Or 382 (1989) (holding that trial court erred in denying a motion for a new trial when the prosecutor referred to the defense counsel as someone who knowingly hired a liar—an expert whom the prosecutor had called a “pimp”).

Although the statement here was made in rebuttal argument, as in Roberts, it was a single improper statement in the context of the entire argument and was not persistent or so inflammatory that it could not have been resolved by a curative instruction. See Federico, 375 Or at 485 (stating that a single reference to opposing counsel saying something “false” would be unlikely to cause incurable harm, but noting that it exacerbated the prosecutor's improper references to evidence outside the record). Had the jury been instructed to ignore the prosecutor's argument and been reminded that it was to decide the case based solely on the evidence, we presume that the jury could and would have followed that instruction in those circumstances. In other words, the prosecutor's improper statement was not in the category of statements that, even if the jury was instructed to disregard, the jury could not do so because “the bell once rung, cannot be unrung.” State v. Jones, 279 Or 55, 62, 566 P2d 867 (1977) (internal quotation marks omitted). As a result, we conclude that the trial court did not plainly err in not declaring a mistrial.

In sum, we deny each of defendant's four assignments of error for the reasons stated above.

Affirmed.

FOOTNOTES

1.   ORS 135.815(1)(a) provides, in relevant part, that the district attorney shall disclose to a represented defendant the “names, addresses and telephone numbers of persons whom the district attorney intends to call as witnesses at any stage of the trial.”

2.   On appeal, the state does not dispute that there was a discovery violation although it seeks to minimize that violation as a “technical” one. We conclude that there was a discovery violation because the state did not provide all of the information required by ORS 135.815(3)(a), which, as previously noted, included a requirement to disclose the witnesses’ telephone numbers and addresses. Here, as noted above, the state disclosed the witnesses’ email contact information but not that additional information.

3.   ORS 135.865 states:“Upon being apprised of any breach of the duty imposed by the provisions of ORS 135.805 to 135.873 and 135.970, the court may order the violating party to permit inspection of the material, or grant a continuance, or refuse to permit the witness to testify, or refuse to receive in evidence the material not disclosed, or enter such other order as it considers appropriate.”

4.   Defense counsel argued in closing that the state had not protected defendant's constitutional rights. The state objected and, outside the presence of the jury, noted that it had previously asked the court to preclude defendant from arguing that the state's breath test of defendant was obtained in violation of his constitutional rights. The state contended that arguments about defendant's constitutional rights were for the court and not the jury. Although the court agreed that it had not observed a violation of defendant's constitutional rights, the court noted that the parties were presenting argument and the state could reply in its rebuttal argument.

5.   Defendant does not develop an argument that the prosecutor's statement improperly shifted the burden of proof onto defendant. We therefore do not address that issue.

SHORR, P. J.