312 P.3d 584
Or. Ct. App.2013Background
- Defendant was convicted of unlawful distribution of a controlled substance to a minor, unlawful possession of cocaine, attempted sexual abuse in the second degree, sexual abuse in the third degree, and driving under the influence of intoxicants.
- During voir dire, prosecutor described Sharia law and a country-specific rape-prosecution scenario to illustrate evidentiary requirements.
- Defense requested a curative instruction to counter potential bias, which the court refused.
- Defense and defendant argued the comments could bias jurors against him as Iranian and Muslim; he sought reversal and a new trial.
- The court ultimately reversed and remanded on most counts due to the curative-instruction failure; Count 3 was acquitted; the reasoning focused on prosecutorial misconduct and its impact on the trial's fairness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Curative instruction required after Sharia-law commentary | State argues not preserved and otherwise not abuse | Defendant contends the curative instruction was necessary to neutralize bias | Abuse of discretion; reversal and remand on several counts |
| Impact of prosecutor's Sharia-law remarks on fairness of trial | Remarks could be viewed as illustrative, not prejudicial | Remarks biased jurors by highlighting religion/ethnicity | Prosecutorial misconduct likely affected fairness; reversal warranted |
| Preservation of the curative-instruction issue | Issue preserved; objections were timely | Not preserved per se | Issue preserved; state’s preservation argument rejected |
| Remand scope following reversal | Not applicable | N/A | Reversed and remanded on Counts 1, 2, 4, 5, and 6; Count 3 acquitted; other assignments not reached |
Key Cases Cited
- State v. Lundbom, 96 Or App 458 (1989) (trial court must repair prejudicial remarks or reversal may follow)
- State v. Seeger, 4 Or App 336 (1971) (failure to take corrective action for improper remarks can be prejudicial)
- State v. James Edward Smith, 4 Or App 261 (1970) (prosecutorial misconduct standards include appeals to prejudices)