535 P.3d 808
Or. Ct. App.2023Background
- Durant was tried by a jury on a resisting arrest charge; a consolidated probation-revocation matter was also before the court.
- Defense theory emphasized officer inconsistencies and argued the police had lied; defense counsel asked the jury to hold onto reasonable doubt.
- In rebuttal the prosecutor opened by referencing the defendant’s "right to go to trial" and argued that a defendant’s right to a trial does not mean there is reasonable doubt, using a demonstrative analogy to explain reasonable doubt.
- Durant made no contemporaneous objection at trial and therefore seeks appellate review under the plain-error rule (ORAP 5.45(1)).
- The appellate court applied the Supreme Court’s Chitwood framework: unpreserved prosecutorial comments are reviewable only if they were so prejudicial that an instruction or striking would not have cured the harm (i.e., they denied a fair trial).
- The court held the challenged remarks were not so egregious or prejudicial that they could not have been cured by a strike or curative instruction, and therefore did not constitute plain error; the conviction and probation revocation were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred sua sponte by not striking prosecutor’s rebuttal remarks | State: Remarks were not improper or at least not obviously so | Durant: Remarks impermissibly referenced his constitutional right to a trial and undermined presumption of innocence | No; not plain error — remarks not so prejudicial as to deny a fair trial |
| Whether prosecutor’s comments improperly commented on exercise of constitutional rights (right to trial/presumption of innocence) | State: Comments explained burden of proof and did not invite adverse inference | Durant: Framing the burden as the defendant’s "right to a trial" shifted focus and risked undermining presumption of innocence | Court: Comments risked that impression but did not actually denigrate the presumption or invite a negative inference |
| Whether the remarks required a mistrial because curative instruction would be insufficient | State: Any potential prejudice could have been cured by striking/curative instruction | Durant: Comments were sufficiently egregious that an instruction would not have cured the prejudice | No; court concluded the statements were curable and not comparable to egregious precedent requiring reversal |
| Whether plain-error standard is met for unpreserved prosecutorial misconduct | State: Plain-error standard not satisfied because legal point not "beyond dispute" and harm not demonstrable on record | Durant: Failure to intervene sua sponte was plain error denying fair trial | Court: Plain-error standard requires it be beyond dispute that comments deprived defendant of a fair trial; that standard was not met |
Key Cases Cited
- State v. Chitwood, 370 Or. 305 (2022) (clarifies plain‑error review for unpreserved prosecutorial statements and requires showing comments were so prejudicial that an instruction would not cure)
- State v. Pierpoint, 325 Or. App. 298 (2023) (reversed on plain error where prosecutor’s comments, together, were incurably prejudicial)
- State v. Soprych, 318 Or. App. 306 (2022) (prosecutor’s hypothetical during voir dire impermissibly undermined presumption of innocence)
- State v. Davis, 345 Or. 551 (2008) (jury instruction generally cures presumed prejudice from prosecutorial misconduct)
- State v. Vanornum, 354 Or. 614 (2013) (defines elements of a "plain" error of law)
- State v. Wyatt, 331 Or. 335 (2000) (unpreserved issues are generally not considered on appeal)