Dеfendant appeals from convictions for attempted rape in the first degreе, ORS 163.375, ORS 161.405, sodomy in the first degree, ORS 163.405, and delivery of a controlled substance, ORS 475.992, after a jury trial. He аssigns as error the trial court’s denial of his motions for mistrial. 1 We reverse.
In his initial closing argument, the proseсutor told the jury:
“This is a case that is a little unusual in that I hope you remember, I know you remember opening statements, [defense counsel] said the defendant was going to testify, and told you what he was going to testify to—
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“The defendant did not testify, and that information that was given to you by [defense counsel] is not еvidence in this case.” (Emphasis supplied.)
Defendant argues that the court abused its discretion in denying his motion for mistrial based on the prosecutor’s comments because his counsel did not tell the jury during opening statements that defendant would testify. The state argues that the prosecutor’s remarks simply told the jury that what defense counsel said was not evidencе and that the court’s denial of the motion was proper. 2
Informing a jury that the defendant has exercised the right to remain silent is likely to prejudice the defendant’s right to a fair trial. State
v. White,
The state alsо argues that the court gave an instruction that remedied any prejudice. Defense сounsel timely objected to the prosecutor’s remarks and told the court that he hаd a motion for it to consider. However, the court did not allow him to argue the motion until after the jury had been instructed and had begun deliberations. Accordingly, he was not given the opportunity to request an immediate curative instruction. The court did give a general jury instructiоn to the effect that defendant had an absolute constitutional right not to testify, and that his decision not to testify could not be considered an indication of guilt. That instruction did no more than tell the jury that defendant’s failure to testify was irrelevant. Its untimely impact was insufficient to cure the prejudice.
See State v. White, supra,
Relying on
State v. Kennedy,
*664 Reversed and remanded for further proceedings not inconsistent with this opinion.
Notes
Because of our disposition of the case, we do not reach defendant’s remaining assignment of еrror.
In its brief, the state argued that “[i]n his opening statement, defense counsel had said defendant would testify.” At oral argument, it conceded that defense counsel did not “explicitly” tell the jury that defendant would testify, but argued that he had implied that defendant would do so by referring tо evidence that arguably could only have been testified to by defendant. Having examinеd defense counsel’s opening statement, we disagree. He simply told the jury what “the facts [would] show,” what “the testimony [would] be” and “[would] show,” and what “the evidence [would] show.” We do not understand defense counsel’s statement to imply that defendant would be called as a witness.
During his closing arguments, the prosecutor made some comments about defendant’s failurе to call certain witnesses and about defense counsel. Defendant argues that the trial court should have granted a mistrial because of those remarks. We need not reach those issues. However, personal attacks on opposing counsel have no place in Oregon courts. We repeat what we have recently said:
“To attempt to establish a defendant’s guilt by making unwarranted personal attacks on his attorney * * * is not only unfair, but it impugns the integrity of the system as a whole. Such comments dangerously overshаdow what a defendant’s case is really about, and we presume that they prejudicе a defendant.” State v. Lundbom,96 Or App 458 , 461,773 P2d 11 , rev den308 Or 382 (1989).
See also EC 7-37, which provides, in relevant part:
“A lawyer should not make unfair or derogatory personal referenсe to opposing counsel. Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system.”