State v. Carlin

1

330 Or.App. 532

STATE OF OREGON, Plaintiff-Respondent, v. RIAN ALLEN CARLIN, Defendant-Appellant.

A177926, A177925

Court of Appeals of Oregon

January 31, 2024

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Argued on December 13, 2023.

Marion County Circuit Court 21CR23077, 22CN00075 Courtland Geyer Judge.

Frances J. Gray argued the cause and fled the briefs for appellant. Rian A. Carlin fled the supplemental brief pro se.

Lauren P. Robertson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum Attorney General, and Benjamin Gutman, Solicitor General.

Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot, Judge.

JOYCE, J Defendant appeals from a judgment of conviction for unlawful use of a weapon, ORS 166.220. He raises multiple assignments of error only two of which we reach because they are ultimately dispositive. In his first and second assignments of error, defendant argues that the prosecutor made comments during voir dire that violated defendant's right to a fair trial. Although defendant did not object at the time, he nevertheless claims that the error is plain and that we should exercise our discretion to correct it. We agree. This case is virtually indistinguishable from State v. Soprych, 318 Or.App. 306, 311, 507 P.3d 276 (2022), in which we concluded that a prosecutor's similar statements during voir dire were improper comments on the defendant's choice to exercise his constitutional right to a fair trial. We therefore reverse and remand.

During voir dire, in response to two potential jurors who expressed concern about the inconvenience of jury service, the prosecutor stated:

"Does everybody understand, though, that every person charged with a crime has a right to trial? And so, you know, while this may-it is a big time commitment for everyone involved, but it is that person's right to a trial, that includes very obvious cases and very complex cases, so let's say we're all in here right now and someone comes running in and they say, 'Judge Geyer, I'm going to steal your clock,' and they climb up there, they take the clock, and they run out, they just committed a theft, right, they told us what they were going to do, we watched them take it, we're all witnesses to this crime, that person still has a right to trial and it would be the prosecutor, the State's job to present the evidence, we would call witnesses and say, you know, 'What did you see happen?' and we would have to prove that case beyond a reasonable doubt even if it's super straightforward such as that one, does everyone understand that? Okay."

Defendant did not object to the prosecutor's statements but argues on appeal that, under Soprych, the error is plain.

We agree. In Soprych, the prosecutor used a very similar hypothetical, only instead of a clock, the prosecutor used an example of a "really nice handbag" that someone stole in front of the venire panel. 318 Or.App. at 307-08. The prosecutor, after setting forth that hypothetical, then said that, even though the hypothetical defendant in that case admitted to taking the bag, that hypothetical defendant would "have a right to a trial." Id. at 308. The prosecutor then stated, "Everyone's still okay with that? * * * Everyone understands that in America this is our absolute constitutional right, and that's why you're all here to uphold that right. You're okay with that?" Id. The defendant moved for a mistrial, which the trial court denied. Id.

On appeal, we reversed. We concluded that "the prosecutor's hypothetical was a thinly veiled comment on [the] defendant's choice to exercise his right to a trial and was improper." Id. at 311. We acknowledged that not every improper comment on a constitutional right requires a mistrial, but that the context in Soprych "did not draw the jury away from a negative inference; rather, the negative inference was the premise of the prosecutor's hypothetical." Id. And that inference, in turn, undermined the defendant's right to a fair trial because the implication of the hypothetical was that "obviously guilty people will invoke their right to a trial, and this jury had been called only as a formality, because [the] defendant was one of that group." Id.

The same is true here. As in Soprych, the apparent premise of the prosecutor's hypothetical was that every defendant has a right to a trial, no matter if the case is "super straightforward" because every member on the venire panel observed defendant stealing the judge's clock.

To be sure, as the state argues, there are slight differences between Soprych and this case, inasmuch as the prosecutor here noted that the state carried the burden to prove the case beyond a reasonable doubt and made reference to both "very obvious cases and very complex cases." We are unpersuaded, however, that those differences are material. Although the prosecutor made references to obvious and complex cases, she did so before she presented the hypothetical. After...