State v. Lincoln, 443 P.2d 178

PER CURIAM.

Defendant appealed from a judgment of conviction of the crime of burglary not in a dwelling. His sole assignment of error is the trial court’s denial of defendant’s motion for a mistrial because of comments by the deputy district attorney during argument.to the jury. Defendant did not take the stand as a witness and he contends that the remarks in question amounted to a comment on his failure to do so.

The defendant was charged with the burglary of a service station. He was apprehended at the scene of the alleged crime together with two other suspects. Several officers participated in the arrest of the suspects and the resultant investigation. All the officers so participating were not called by the state although some of them Avere present in the courtroom. Defendant’s counsel argued to the jury that the state had not disclosed all of the information it possessed because all of the officers with knowledge of the investigation were not called as Avitnesses. In rebuttal the deputy district attorney argued: “Counsel knoAvs if he Avants to call any officers in the courtroom, he certainly can do that.” The motion for a mistrial followed.

It is clear that the comment in question in no Avay related to defendant’s failure to take the witness stand. There is no rule Avhich prevents the state from commenting on defendant’s failure to call Avitnesses other than the defendant which were available to him.

The judgment of the trial court is affirmed.

Case Details

Case Name: State v. Lincoln

Court Name: Oregon Supreme Court

Date Published: Jun 26, 1968

Citations: 443 P.2d 178; 1968 Ore. LEXIS 570; 250 Or. 426

Court Abbreviation: Or.