State v. Durant

327 Or.App. 363

535 P.3d 808

STATE of Oregon, Plaintiff-Respondent,

v.Steven John DURANT, Defendant-Appellant.

A177420 (Control), A177289

Court of Appeals of Oregon.

Submitted July 6, 2023.

August 9, 2023

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Nora Coon, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert C. Hansler, Assistant Attorney General, filed the brief for respondent.

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

AOYAGI, P. J.

In this consolidated appeal, defendant appeals the judgment of conviction in case number 21CR32255, in which he was convicted of resisting arrest, and the judgment revoking his probation in case number 20CR27048. Defendant raises four assignments of error, all of which pertain to allegedly improper statements made by the prosecutor during rebuttal closing argument in case number 21CR32255. On plain-error review, defendant contends that the trial court plainly erred by failing to intervene sua sponte to either strike the improper statements, give a curative instruction, or declare a mistrial. We conclude that it is not beyond dispute that the prosecutor's statements were so prejudicial as to have denied defendant a fair trial. We therefore affirm.

"Generally, an issue not preserved in the trial court will not be considered on appeal." State v. Wyatt , 331 Or. 335, 341, 15 P.3d 22 (2000). However, we have discretion to correct a "plain" error. ORAP 5.45(1). An error is "plain" when it is an error of law, the legal point is obvious and not reasonably in dispute, and the error is apparent on the record without our having to choose among competing inferences. State v. Vanornum , 354 Or. 614, 629, 317 P.3d 889 (2013). It is a matter of discretion whether we will correct a plain error. State v. Gornick , 340 Or. 160, 166, 130 P.3d 780 (2006).

The Supreme Court recently addressed in State v. Chitwood , 370 Or. 305, 307, 518 P.3d 903 (2022), how to approach plain-error review in the specific context of a challenge to prosecutorial statements in closing argument to which the defendant did not object. In short, "appellate review is permitted, and reversal may be warranted if ‘it is beyond dispute that the prosecutor's comments were so prejudicial as to have denied defendant a fair trial.’ " Id. at 312, 518 P.3d 903 (quoting State v. Montez , 324 Or. 343, 357, 927 P.2d 64 (1996), cert. den. , 520 US 1233, 117 S.Ct. 1830, 137 L.Ed.2d 1036 (1997) ). All of the requirements for plain error must be met, including that the error is an error of law. Id. at 321-22, 518 P.3d 903. To establish an error of law in this context, "a defendant who seeks review of an unpreserved challenge to prosecutorial statements must demonstrate that the statements were so prejudicial that they deprived the defendant of a fair trial." Id. at 313-14, 518 P.3d 903 ; see also id. at 317, 518 P.3d 903 ("The prosecutor's improper comments are reviewable as ‘plain error’ only if they constitute legal error, and they rise to that level only if they are so prejudicial that they deprived defendant of a fair trial.").

We further understand Chitwood to clarify that, when a prosecutor makes improper statements at trial, and the defendant does not object, we may reverse on plain-error review only if the statements were so egregious that striking them or giving a curative instruction would have been insufficient. The defendant in Chitwood asserted that the trial court had committed a plain error "in failing to order a mistrial or issue curative instructions." Id. at 311, 518 P.3d 903. In that context, the court made clear that plain-error review was cognizable only if the defendant was denied a fair trial, which in turn required application of the mistrial standard: "[A] defendant asserting plain error must demonstrate that the prosecutor's comments were so prejudicial that an instruction to disregard them would not have been sufficiently curative to assure the court, in its consideration of all the circumstances, that the defendant received a fair trial." Id. at 312, 518 P.3d 903. That is important because, "[g]enerally, a proper jury instruction is adequate to cure any presumed prejudice from a prosecutor's misconduct." State v. Davis , 345 Or. 551, 583, 201 P.3d 185 (2008), cert. den. , 558 U.S. 873, 130 S.Ct. 371, 175 L.Ed.2d 124 (2009).

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. (Of course, the failure to move to strike or for a curative instruction might still be a basis for post-conviction relief.) We draw attention to that aspect of Chitwood for two reasons. First, it disposes of defendant's first three assignments of error, in which he argues that it was plain error not to strike the statements at issue or give a curative instruction. Second, it is common for defendants to argue in the alternative that it was plain error not to strike prosecutorial statements, give a curative instruction, or declare a mistrial—and we do not appear to have commented negatively on that practice. Chitwood therefore clarifies a point that has not been well understood in the past.¹

One other point from Chitwood warrants mention: that the preferable way to describe this type of alleged error is in terms of the prosecutor's statements themselves, rather than the trial court's inaction. See Chitwood , 370 Or. at 312-13 & n 1, 518 P.3d 903. We therefore understand the alleged error as "an error by the prosecutor in making remarks that are so egregious that, if the defendant had made a motion for mistrial, the trial court would have erred, as a matter of law, in denying it." Id. at 312, 518 P.3d 903. "Understanding the error in that way is consistent with the test for legal error—whether the prosecutor's comments were so prejudicial as to have denied defendant a fair trial." Id. (emphasis in original).

We turn to the facts of this case. Defendant was charged with resisting arrest, ORS 162.315, based on an incident at his apartment involving several police officers.² The case was tried to a jury. In closing argument, the prosecutor walked through the trial evidence in detail and described how it proved the elements of the offense. Defense counsel's closing argument focused on inconsistencies in the state's evidence and an asserted lack of evidence regarding defendant's physical condition and mental state. There was also a strong theme that the police officers had lied at trial. Defense counsel ended with arguments about reasonable doubt and what it meant, including asserting that testimony by two of the officers was enough to create reasonable doubt and "ask[ing] you as a reasonable jury to hold onto your reasonable doubt."

The final closing argument was the prosecutor's rebuttal. The prosecutor began rebuttal closing argument by stating:

"Every person that's charged with a crime has the right to go to trial and have the state prove the case beyond a reasonable doubt. That's why we're here; Mr. Durant gets his day in trial.

"That does not mean that there is reasonable doubt. What that means is the process is working and that's why we're here today.

"There is no reasonable doubt in this case.

"As you heard, the (indiscernible) is doubt based on common sense and reason, but it's not an imaginary doubt. It's not a thought of, well, maybe there's point one percent of possibility that something else intervened or whatever.

"The best explanation of beyond a reasonable doubt that I've come across is this demonstrative (indiscernible). You know that this is a photo of George Washington, despite the fact that there is a big puzzle piece missing right out of the middle of it. It's, in fact, the photo from the one-dollar bill.

"You can have certain questions still lingering and still understand the photo and understand what happened that day, just like you can understand beyond a reasonable doubt what happened when Mr. Durant was arrested.

"I'm not gonna respond to everything that counsel said, but there are a few things I do want to point out and I want to start with Mr. Durant's own testimony."

(Emphasis added.) The prosecutor then responded to several of defense counsel's specific evidentiary arguments with her own evidentiary arguments.

The jury ultimately found defendant guilty of resisting arrest. On appeal of his resulting conviction, defendant challenges the prosecutor's initial statements in rebuttal closing—the statements italicized above—arguing that they were improper. The state counters that those statements "were not improper, or, at least, not obviously so."

As previously mentioned, prosecutorial statements are improper if they infringe on the defendant's right to a fair trial. Chitwood , 370 Or. at 311-12, 518 P.3d 903. "Article I, section 11, [of the Oregon Constitution,] as well as the Due Process Clause of the Fourteenth Amendment to the United States Constitution, guarantees a criminal defendant's right to a fair trial by an impartial jury. That right guarantees that a defendant shall be tried by a jury that will decide guilt based on evidence—not emotion or prejudice." State v. Soprych , 318 Or App 306, 309, 507 P.3d 276 (2022) (internal citations omitted).

Although there is no per se prohibition on prosecutors referring in closing argument to a defendant's constitutional rights, "[a] prosecutor's reference to or comment on a defendant's invocation of a constitutional right, such as the right to counsel, the right to remain silent, or the right to a trial, may prejudice a defendant's ability to have a fair trial if the jury is likely to draw a negative inference from the exercise of that right." Id. (emphasis added). "One such negative inference can be the erosion, or misconstruction, of the presumption of innocence." Id. at...