State v. Durant

                                       363

                   Submitted July 6, affirmed August 9, 2023


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                      STEVEN JOHN DURANT,
                         Defendant-Appellant.
                      Lane County Circuit Court
                       21CR32255, 20CR27048;
                      A177420 (Control), A177289
                                   

    Defendant was convicted of resisting arrest, ORS 162.315, and his probation
was revoked as a result. In a consolidated appeal, he argues that the trial court
erred in failing to intervene sua sponte to strike improper statements by the prose-
cutor during rebuttal closing argument. Defendant did not object to the challenged
statements at trial, so he requests plain-error review. Held: Under recent Supreme
Court case law, for challenged prosecutorial statements in closing argument to
which the defendant did not object to qualify as “plain” error, it must be beyond
dispute that the prosecutor’s statements were so prejudicial as to have denied the
defendant a fair trial. The statements at issue on appeal in this case were not so
egregious that they could not have been adequately addressed by striking or a
curative instruction, and therefore do not meet the standard for plain-error review.
    Affirmed.



  Kamala H. Shugar, Judge. (Case No. 21CR32255,
Judgment entered Sept 1, 2021)
  Charles M. Zennaché, Judge. (Case No. 20CR27048,
Judgment entered Oct 6, 2021)
  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.
    Affirmed.
364                                            State v. Durant

         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 judg-
ment 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 num-
ber 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 cura-
tive 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, 

, 

 (2000). However, we have discretion to cor-
rect 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 rea-
sonably in dispute, and the error is apparent on the record
without our having to choose among competing inferences.
State v. Vanornum, 

, 

 (2013). It is
a matter of discretion whether we will correct a plain error.
State v. Gornick, 

, 

 (2006).
          The Supreme Court recently addressed in State
v. Chitwood, 

, 

 (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.’ ” 

 at
312 (quoting State v. Montez, 

, 

(1996), cert den, 

 (1997)). All of the requirements
for plain error must be met, including that the error is an
error of law. Id. at 321-22. 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
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the defendant of a fair trial.” Id. at 313-14; see also id. at
317 (“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 fail-
ing to order a mistrial or issue curative instructions.” Id. at
311. 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 demon-
strate 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. 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,

, 

 (2008), cert den, 

(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 defen-
dants to argue in the alternative that it was plain error not
to strike prosecutorial statements, give a curative instruc-
tion, or declare a mistrial—and we do not appear to have
commented negatively on that practice. Chitwood therefore
366                                                            State v. Durant

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, 

-
13 & n 1. 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 mis-
trial, the trial court would have erred, as a matter of law,
in denying it.” 

. “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.” 

 (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 pros-
ecutor 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 testi-
mony 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.”

     1
        Until and unless the Supreme Court suggests otherwise, it is our under-
standing that the plain-error principle articulated in Chitwood is limited to pros-
ecutorial misconduct, including improper statements in closing argument. For
example, in the evidentiary context, it is well-established that it is plain error not
to strike clear vouching testimony. E.g., State v. Murphy, 

, 

 (2022) (“If a witness unambiguously vouched, it is plain error not to have
stricken the testimony, even absent an objection.”); State v. Wilson, 

, 

 (2014), rev den, 

 (2015) (listing cases in which
“[w]e have concluded that it is plain error for a trial court to not strike explicit
vouching testimony sua sponte”). Chitwood would seem to suggest that, in the
plain-error context, prosecutorial vouching should be analyzed differently from
witness vouching. However, we leave that issue for another day.
     2
       A second charge was dismissed.
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         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 reason-
   able 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 com-
   mon 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.”
(Emphases 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 resist-
ing 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
368                                           State v. Durant

fair trial. Chitwood, 

. “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, 

, 

 (2022) (internal
citations omitted).

          Although there is no per se prohibition on prosecu-
tors referring in closing argument to a defendant’s consti-
tutional 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.” 

 (emphasis added). “One such
negative inference can be the erosion, or misconstruction,
of the presumption of innocence.” 

 (further noting
that prosecutorial comments that distort the presumption
of innocence may be made “directly” or “through targeted
innuendo”). Even then, “not every improper comment on
a constitutional right requires a mistrial.” 

. For
example, if the context of the prosecutor’s comment is such
as to direct the jury’s attention “away from the adverse
inference of guilt based on the invocation” or “makes such
an inference unlikely,” then “the trial court does not abuse
its discretion if it denies the defendant’s motion for a mis-
trial.” 

 (internal quotation marks omitted).

         There is a long line of cases illustrating the risk
that a prosecutor takes in referring to a defendant’s con-
stitutional rights during closing argument in a jury trial.
That is in part because the prosecutor’s intentions do not
matter. State v. Grenawalt, 

, 

,
rev den, 

 (1987) (“The fact that a prosecutor’s con-
duct is not intentional does not affect a defendant’s funda-
mental right to a fair trial.”). All that matters is whether
the prosecutor’s statements crossed the line into impro-
priety and, in the plain-error context, “were so prejudicial
that an instruction to disregard them would not have been
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sufficiently curative to assure the court, in its consideration
of all the circumstances, that the defendant received a fair
trial.” Chitwood, 

.
         Several recent cases provide examples of improper
prosecutorial comments in closing argument that were so
egregious as to require reversal of the defendant’s convic-
tions, even where the defendant did not object at trial.
          In Chitwood, the defendant was charged with
20 sex crimes against a child, and the prosecutor made two
improper statements in rebuttal closing argument that,
taken together, “ ‘were so egregious that they deprived
defendant of a fair trial.’ ” 

. First, the prosecu-
tor referred to a prospective juror’s statements in voir dire
about his experience being falsely accused of a sex crime,
which was improper both because the prosecutor relied on
facts not in evidence and because she encouraged the jury to
decide the case on an improper basis by suggesting that, if
the complainant’s allegations against defendant were false,
the case would have “ ‘washed out’ ” and never have made it
to trial, as happened in the prospective juror’s case. 

. Second, the prosecutor distorted the burden of proof,
and thereby misled the jury as to what was needed to find
guilt, by concluding her closing argument with the state-
ment, “ ‘[I]f you determine that [the defendant] should not
reside with an adolescent girl, that’s your moral certainty
and I have proven my case beyond a reasonable doubt.’ ” 

 (second brackets in Chitwood). The defendant did
not object at trial, but the Supreme Court concluded that the
requirements for plain-error review were met, and it exer-
cised its discretion to correct the plain error. 

.
         In Soprych, the prosecutor told the prospective
jurors in voir dire that a person accused of a crime has “ ‘an
absolute constitutional right to a trial’ ” and then, over the
defendant’s objection that it was “ ‘an improper comment on
innocence’ ” and “ ‘also conditioning the jury,’ ” proceeded to
illustrate the point with a single hypothetical of a very obvi-
ously guilty person. 

. The prosecutor
asked the jury to imagine that she (the prosecutor) liked
a juror’s handbag; grabbed the handbag in front of every-
one; announced that she was “ ‘stealing this handbag’ ” and
370                                           State v. Durant

was “ ‘going to keep it forever’ ”; walked out the courtroom
door and, while being recorded on surveillance video, yelled,
“ ‘I’m keeping this bag. I’m stealing it forever. This is mine
now.’ ”; and was then stopped while carrying the handbag
and confessed, “ ‘Okay, you got me. I was stealing the bag.
I admit it. I took it. You got me.’ ” 

. After positing
that hypothetical, the prosecutor stated, “ ‘I have a right to
a trial. Everyone’s still okay with that? [Jurors answer yes.]
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? [Jurors answer yes.]’ ” 

 (internal quotation marks omitted).

          On appeal, we concluded “that, given the context,
the voir dire question and hypothetical undermined the pre-
sumption of innocence and deprived defendant of an oppor-
tunity for a fair trial in front of an impartial jury[.]” 

. The prosecutor’s hypothetical was a “thinly veiled” com-
ment on defendant’s choice to exercise his right to a trial”
and, in context, was intended to undermine the presump-
tion of innocence. 

. “In short, the implication of the
prosecutor’s hypothetical and additional comments was that
obviously guilty people will invoke their right to a trial, and
this jury had been called only as a formality, because defen-
dant was one of that group.” 

          Most recently, in State v. Pierpoint, 

, 

 (2023), we reversed the defendant’s con-
victions on plain-error review, applying Chitwood, where
the prosecutor had made two statements in rebuttal clos-
ing argument that, “considered together, were so prejudicial
that they could not have been cured by an instruction.” The
first statement improperly “implied to the jury that a grand
jury had previously determined defendant’s guilt beyond a
reasonable doubt, which was incorrect.” 

. The sec-
ond statement was an “obviously improper” comment on the
defendant’s decision not to testify, involving “feigned spec-
ulation concerning the reasons for defendant’s decision not
to testify[.]” 

 “As in Chitwood, the combination of prose-
cutorial misstatements would have been hard for the jury
to disregard, even with a curative instruction.” 

.
Ultimately, we concluded “that the improper conduct was so
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prejudicial that, if defendant had objected and moved for a
mistrial, the trial court would have abused its discretion in
denying the motion.” 

 We exercised our discretion to cor-
rect the plain error. 

         The challenged statements in this case are not
nearly as egregious as those in Chitwood, Soprych, Pierpoint,
and other cases in which we have reversed convictions based
on improper prosecutorial statements to the jury in closing
argument. In this case, the gist of the statements at issue
was that every criminal defendant has the right to go to
trial and put the state to its burden of proof, but that it does
not necessarily follow that there is reasonable doubt in every
criminal trial. In context, the prosecutor appears to have
been trying to set up her next point, which was that small
gaps or inconsistencies in the evidence do not necessarily
translate into reasonable doubt.

          The prosecutor’s phrasing was not ideal. It is the
state that chooses to pursue criminal charges against a per-
son, and, unless the person pleads guilty or no-contest, a
trial is the necessary mechanism by which the state must
prove its case. Discussing the state’s burden of proof in terms
of the defendant’s right to a trial risks shifting the jury’s
attention from the state’s evidentiary burden to the defen-
dant’s exercise of a constitutional right in a way that could
be found to be problematic, even if it was not intended to be
prejudicial. Here, the prosecutor easily could have made the
same point without reference to defendant’s right to a trial,
thus avoiding a potential problem.

         It does not follow, however, that defendant was enti-
tled to a mistrial. Even if the prosecutor’s statements were
not ideal, they also were not egregious. The prosecutor did
not misstate the law, denigrate anyone, improperly shift
the burden of persuasion to defendant, or invite an adverse
inference from defendant’s exercise of a constitutional right.
Most importantly (given defendant’s appellate arguments),
nothing that the prosecutor said implied that only guilty peo-
ple go to trial. That distinguishes this case from Soprych, in
which the prosecutor undermined the presumption of inno-
cence and conditioned the jury to believe that the defendant
372                                                         State v. Durant

was obviously guilty,3 and other cases where prosecutorial
comments suggested drawing a negative inference from the
defendant’s exercise of a constitutional right. It is also nota-
ble that the challenged statements here were brief, and that
the prosecutor immediately transitioned into a substantive
discussion of “reasonable doubt” that no one disputes was
legally accurate, followed by additional discussion of the
trial evidence, thus drawing the jury’s attention away from
the initial comments and into substantive matters.
         In the end, considering the content and context
of the statements, it is not “beyond dispute that the pros-
ecutor’s comments were so prejudicial as to have denied
defendant a fair trial,” which is the standard on plain-error
review. Chitwood, 

. That is, even if the state-
ments were improper, they are in the realm of statements
that could have been adequately addressed by striking or a
curative instruction. It follows that defendant has not estab-
lished plain error. Accordingly, we affirm.
           Affirmed.




     3
       To the extent that defendant argues that the prosecutor’s statements did
imply that only guilty people go to trial and are comparable to the statements
in Soprych, we are unpersuaded. The statements in Soprych were more egre-
gious. Moreover, the defendant in Soprych objected at trial, so, on appeal, we
could decide the issue in his favor even if the legal point was not “obvious.” See
Vanornum, 

 (one requirement for “plain” error is that the legal point
is obvious and not reasonably in dispute).