496 P.3d 1151
Or. Ct. App.2021Background:
- Defendant was convicted of driving under the influence (ORS 813.010) after trial in Crook County; jury returned a unanimous guilty verdict.
- State’s case included a state trooper’s testimony about defendant’s incoherent responses, HGN test results, walk‑and‑turn performance, dashcam video, defendant’s admissions of drinking, a Brewfest cup, and a .19 BAC breath test.
- In closing, the prosecutor summarized the evidence and stated, “we have credibility of our trooper,” after which defense objected and requested a mistrial for prosecutorial vouching.
- The trial court denied the mistrial, explaining the prosecutor was arguing that the trooper should be found credible based on the evidence, which the court viewed as permissible argument.
- Defendant raised two assignments of error on appeal: (1) failure to instruct on jury unanimity, and (2) denial of the mistrial motion for alleged prosecutorial vouching.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to instruct jury on unanimity | No reversible error because the jury’s verdict was unanimous | Trial court erred by not instructing jury it must be unanimous | Rejected — verdict was unanimous; claim fails (Flores Ramos) |
| Prosecutorial vouching — denial of mistrial after prosecutor said “credibility of our trooper” | Statement was permissible argument that jury should find trooper credible based on the evidence; not personal vouching | Statement amounted to impermissible vouching that could not be cured except by mistrial | Denied — statement ambiguous but, viewed in context of the argument and entire record, did not deny defendant a fair trial; no reversible error |
Key Cases Cited
- State v. Flores Ramos, 367 Or. 292, 478 P.3d 515 (2020) (rejecting similar unanimity‑instruction claim where verdict was unanimous)
- State v. Sperou, 365 Or. 121, 442 P.3d 581 (2019) (explains rule against prosecutorial vouching and trial court remedial discretion)
- State v. Madden, 100 N.E.3d 1203 (Ohio Ct. App. 2017) (observes prosecutor may argue witness credibility so long as it does not imply facts outside the record)
- Davis v. Cain, 304 Or. App. 356, 467 P.3d 816 (2020) (recognizes prosecutors’ leeway to argue evidence but prohibits injecting personal views of witness credibility)
Affirmed.