State v. Mathews

539 P.2d 1129, 22 Or. App. 489, 1975 Ore. App. LEXIS 1262

Opinion

PER CURIAM.

The defendant, having been convicted of theft in the first degree, ORS 164.055, makes numerous assignments of error on appeal. We do not consider them, because the alleged errors which defendant seeks to raise were waived in the colloquy which took place after the jury retired to deliberate:

“THE COURT: Now, I want to further consider the defendant’s motion for a mistrial. Do you still want the mistrial, Mr. Yunker? I had thought at the conclusion yesterday that probably the case ought to be mistried and started again, and I’m inclined to do that, I think. The trial has just been chaotic from start to finish. I don’t know whether the errors preponderate in favor of the defendant or against the defendant. I would prefer that he get a trial with a few less errors in it.

“MR. HUNT: I can understand the Court’s concern, Your Honor. I think, considering everything, that the State would oppose a mistrial.

“THE COURT: What’s the defendant’s position?

“MR. YUNKER: I’m trying to find out.

“THE COURT: Well, we can take a little time, if you would like, to think about it a little bit, because I understand it’s a very serious decision for your chent to make, as it is for the Court. Let’s take a recess.

“(RECESS at 11:20 a.m.)

“(COURT reconvened at 11:22 a.m.)

“MR. YUNKER: The defendant doesn’t wish to stand on the motion.

“THE COURT: You are withdrawing the motion for a mistrial?

“THE DEFENDANT: Yes.

“MR. YUNKER: Yes, Your Honor.

“THE COURT: All right.”

The trial judge offered defendant everything he now seeks from us — a retrial. He declined.

Affirmed.