363 P.3d 519
Or. Ct. App.2015Background
- Defendant was convicted of two counts of domestic-violence strangulation under ORS 163.187 and appealed.
- During opening, closing, and rebuttal argument the prosecutor repeatedly prefaced statements with “I think” or “I believe.”
- Defense counsel objected throughout, arguing the prosecutor was injecting personal beliefs; the court sustained many objections and directed the prosecutor to rephrase.
- After a rebuttal comment, defense moved for a mistrial; the court denied the motion, found the remarks inadvertent, and gave a precise cautionary instruction that the prosecutor’s thoughts/beliefs are not evidence.
- The court also refused to give Uniform Criminal Jury Instruction 1030 (Less Satisfactory Evidence); defendant assigned error but the court found no abuse of discretion.
- The prosecutor apologized, explained it was his first felony trial, and said he did not intend to vouch for witnesses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutor’s repeated “I think”/“I believe” statements required a mistrial | State: remarks were inartful but largely prefatory to reasonable inferences from the evidence and not improper vouching | Defendant: frequent personal-belief phrases constituted improper vouching and denied a fair trial; mistrial required | Court: Denied mistrial; found statements largely inadvertent, promptly corrected, and cured by sustained objections and explicit jury admonitions |
| Whether refusal to give UCI 1030 (Less Satisfactory Evidence) was error | State: trial court acted within discretion in declining the instruction | Defendant: requested instruction was necessary for jury guidance regarding less satisfactory testimony | Court: No abuse of discretion in refusing UCI 1030; assignment of error rejected |
Key Cases Cited
- State v. Voits, 186 Or. App. 643 (Or. Ct. App.) (standard of review for mistrial denial: abuse of discretion; fair trial test)
- State v. Smith, 310 Or. 1 (Or. 1990) (prosecutorial remarks require mistrial only if they deny a fair trial)
- State v. Parker, 235 Or. 366 (Or. 1963) (improper for counsel to inject personal appraisal of witnesses’ credibility)
- State v. Cheney, 171 Or. App. 401 (Or. Ct. App.) (prosecutorial vouching beyond bounds of proper argument criticized but mistrial not always required)
- State v. Hendershott, 131 Or. App. 531 (Or. Ct. App.) (trial court discretion governs whether to give less-satisfactory-evidence instruction)