346 P.3d 549
Or. Ct. App.2015Background
- Defendant was charged with multiple counts of first-degree sexual abuse (ORS 163.427) and second-degree sodomy (ORS 163.395) based on alleged abuse of his biological niece/adopted daughter (M) dating 2000–2006.
- M was interviewed at the STAR Center and, at the request of Detective Perkins, made a recorded pretext phone call to defendant in 2008; defendant made inculpatory remarks on that call.
- Perkins executed a search warrant, advised defendant of Miranda rights, and conducted a ~30 minute recorded station interview (defendant not under arrest) in which Perkins urged defendant to ‘‘come out with what happened’’ and discussed getting help; defendant then acknowledged sexual contacts with M.
- Defendant moved to suppress the station-interview statements as involuntary (Article I, § 12, Oregon Const.), arguing Perkins implied a promise of leniency/treatment in exchange for confession; trial court denied suppression.
- At trial the STAR Center recording was never admitted (defense challenged notice under OEC 803(18a)(b)); prosecutor nevertheless referenced the recording in opening and argued in closing that any inconsistencies would have been revealed on that recording — defense objected and moved for mistrial; motion denied.
- Jury convicted on three counts (two first-degree sexual abuse, one second-degree sodomy) by 10-2 verdicts; appellate court affirmed suppression ruling but reversed convictions based on prosecutor’s improper closing argument and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Voluntariness of statements (motion to suppress) | State: Perkins’s remarks encouraged honesty but did not promise immunity; statements related only to sentencing/prosecution consequences and were not an implied quid pro quo. | Defendant: Perkins’s ‘‘carrot-and-stick’’ comments implied promise of treatment/leniency in exchange for confession, rendering statements involuntary under Article I, § 12. | Court held statements were voluntary; no implied promise that confession would preempt prosecution (distinguished Pollard; akin to Neblock/Bounds). |
| Prosecutor’s closing argument referencing unadmitted STAR recording (mistrial) | State: Comment was permissible rebuttal/fair comment; defense had tactical choice not to cross-examine M or admit the tape; generic jury instructions (burden of proof, no adverse inference) cured any error. | Defendant: Prosecutor invited jury to consider nonadmitted evidence and shifted burden, implying the tape would have confirmed victim’s consistency — requiring mistrial under Wederski. | Court held prosecutor’s remark improperly invited the jury to consider nonadmitted evidence and, without curative instruction, denied defendant a fair trial — mistrial should have been granted; convictions reversed and remanded. |
| Prosecutorial comment on defense’s failure to present evidence | State: Such comments can be permissible when defense has the burden of production or opens the door (Lincoln/Galloway/Henderson). | Defendant: Here defense did not open the door or rely on the recording; prosecutor’s remark was not responsive and improperly bolstered state evidence. | Court held this situation did not fit the permissible defensive-responsiveness line; prosecutor’s remark was an impermissible invitation to speculate about nonadmitted evidence. |
| Constitutionality of nonunanimous verdicts | (State not detailed) | Defendant argued nonunanimous verdicts unconstitutional. | Court rejected the nonunanimity argument without discussion. |
Key Cases Cited
- State v. Ruiz-Piza, 262 Or App 563 (standard of review for voluntariness)
- State v. Pollard, 132 Or App 538 (confession involuntary where officer implied treatment in lieu of prosecution)
- State v. Neblock, 75 Or App 587 (advice that treatment and incarceration are both options does not constitute promise of immunity)
- State v. Wederski, 230 Or 57 (prosecutor may not invite jury to consider nonadmitted evidence or comment on defendant’s silence)
- State v. Lincoln, 250 Or 426 (prosecutor may comment on defendant’s failure to call available non-defendant witnesses)
- State v. Galloway, 202 Or App 613 (distinguishing Wederski; permissible to note absence of alibi evidence)
- State v. Henderson, 242 Or App 357 (prosecutor may rebut defense implication that state failed to gather evidence when defendant had burden of production)
- State v. Davis, 345 Or 551 (prejudice test — prosecutor misconduct must be assessed for denial of a fair trial)