State v. Pierpoint, 528 P.3d 1199

Defendant (Pierpoint) was convicted by a jury of domestic-violence fourth-degree assault, two counts of strangulation (domestic violence), menacing (domestic violence), second-degree criminal mischief, and six counts of witness tampering after an incident televised by police testimony and photographs.
Deputy Vial testified to the victim’s contemporaneous statements, observed injuries, and photos; jail-call recordings showed defendant urging the victim not to come to court and to recant.
At trial the victim recanted and testified defendant was not guilty; defense argued defendant did not need to testify. The jury nevertheless convicted.
During rebuttal closing the prosecutor: (1) misstated the grand-jury function by implying a grand jury had found guilt beyond a reasonable doubt; and (2) made feigned/speculative comments about why defendant did not testify (suggesting he avoided confronting inculpatory evidence), among other remarks about witness-tampering and acquittal.
The Oregon Supreme Court remanded for reconsideration in light of State v. Chitwood; on remand the Court of Appeals held the two rebuttal comments were obviously improper, constituted legal plain error that could not be cured by instruction, and reversed and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutor’s grand-jury remark (implying prior finding beyond a reasonable doubt)	Statement clarified defense mischaracterization; not prejudicial	Remark improperly implied a prior jury-level finding of guilt, undermining presumption of innocence	Obviously improper; misstated grand-jury role; prejudicial legal error reversible as plain error
Prosecutor’s comments about defendant not testifying (feigned speculation why he did not testify)	Defense opened the door; prosecution may respond to rebut implication that case was weak	Argument improperly drew attention to and invited inference from defendant’s exercise of the right to remain silent	Obviously improper; went beyond permissible rebuttal and invited forbidden inferences; prejudicial legal error
Cumulative-prejudice / remedy (whether curative instruction or mistrial required)	Comments were curable or harmless; no plain error	Combined remarks so prejudicial that an instruction could not ‘‘unkring the bell’’; mistrial warranted if moved	Under Chitwood framework, combination (timing in rebuttal, nature of misconduct) was so prejudicial that an instruction would not suffice; appellate court exercised discretion to correct plain error and reversed

State v. Chitwood, 370 Or 305 (2022) (framework for plain-error review of prosecutorial rebuttal remarks; when remarks are so prejudicial that an instruction cannot cure them)
State v. Reinke, 354 Or 98 (2013) (explaining grand jury’s function is to determine probable cause, not guilt beyond a reasonable doubt)
State v. Soprych, 318 Or 306 (2022) (prosecutorial statements that distort presumption of innocence may require mistrial)
State v. Davis, 345 Or 551 (2008) (general principle that a curative instruction ordinarily cures prosecutorial misconduct, but not always)
State v. Banks, 367 Or 574 (2020) (warning that suggesting the state has additional evidence invites juror speculation and is improper)