337 P.3d 941
Or. Ct. App.2014Background
- Defendant found his mother dead; deputies transported him to the sheriff’s office and asked him to speak with detectives Rau and Hays.
- Defendant signed a consent-to-search form but, after receiving Miranda warnings, invoked his right to remain silent and counsel; he was arrested and placed in a holding cell.
- On cross-exam Hays admitted he had not audio/video recorded interviews; court found defense “opened the door” to explanation and allowed limited redirect where Hays testified defendant declined to speak.
- In closing, prosecutor used a PowerPoint slide deck that repeatedly listed “His refusal to speak at the police station” as one of four reasons the defendant was "GUILTY," including a slide with the bullet “Refuses to speak about what happened.”
- Defense objected during closing; the trial court overruled and denied a post-argument mistrial motion. Jury convicted; defendant appealed arguing the PowerPoint impermissibly commented on his right to remain silent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the prosecutor’s PowerPoint impermissibly commented on defendant’s post-Miranda silence | The State: portions placed unnecessary emphasis but defendant opened the door via cross-examination; oral argument focused on demeanor/change, not using silence to prove guilt | Defendant: slides and oral argument invited jurors to infer guilt from his invocation of the right to remain silent, violating state and federal constitutional protections | The court reversed: slides impermissibly argued silence as evidence of guilt; error was prejudicial and required a new trial |
| Scope of the "open the door" doctrine | State: the door opened permits explanation about lack of recordings and changed behavior | Defendant: even if door opened, rebuttal may not argue silence demonstrates guilt | Court: even if door opened, rebuttal is limited to correcting impressions; it cannot turn silence into evidence of guilt |
| Prejudice from comment on silence | State: unclear how long slides were visible; argument did not rely on silence alone | Defendant: repeated slides and matching oral argument made adverse inference likely | Court: repeated, explicit slides and synchronous oral argument made juror inference of guilt likely; error reversible |
| Whether other objections (demeanor comments, mistrial) required resolution | State: those issues need not be reached given disposition | Defendant: preserved objections | Court: did not reach or need to resolve remaining assignments given reversal on PowerPoint error |
Key Cases Cited
- State v. Wederski, 230 Or. 57 (Oregon 1962) (Oregon constitutional right to remain silent)
- Griffin v. California, 380 U.S. 609 (U.S. 1965) (prosecution may not comment on defendant’s silence)
- State v. Larson, 325 Or. 15 (Or. 1997) (Oregon prohibits prosecutors drawing jury’s attention to invocation of right to remain silent)
- State v. Guritz, 134 Or. App. 262 (Or. Ct. App. 1995) (prosecutor may reply to defense argument but reply limited to rebutting misimpression)
- State v. Miranda, 309 Or. 121 (Or. 1990) (opening the door on direct examination permits related cross-examination)
- United States v. Gant, 17 F.3d 935 (7th Cir. 1994) (silence may be used only for limited impeachment, not to prove guilt)
- United States v. Martinez-Larraga, 517 F.3d 258 (5th Cir. 2008) (recognizes open-the-door exception but bars arguing guilt from post-arrest silence)
- State v. Smallwood, 277 Or. 503 (Or. 1977) (references to exercise of constitutional rights can be usually reversible if jury likely to draw prejudicial inferences)
- State v. Osorno, 264 Or. App. 742 (Or. Ct. App. 2014) (prosecutorial comment on silence may prejudice fair trial if jury likely to infer guilt)
- State v. Ragland, 210 Or. App. 182 (Or. Ct. App. 2006) (trial court failure to sustain objection to prosecutor’s comment on silence can be reversible error)