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State v. Douglas

Court of Appeals of Oregon
Feb 7, 2024
330 Or. App. 578 (Or. Ct. App. 2024)

Opinion

A177836

02-07-2024

STATE OF OREGON, Plaintiff-Respondent, v. MARION AMADOR DOUGLAS, Defendant-Appellant.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie Hortsch, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, fled the brief for respondent.


This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted January 19, 2024

Deschutes County Circuit Court 21CR13862; Walter Randolph Miller, Jr., Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie Hortsch, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, fled the brief for respondent.

Before Shorr, Presiding Judge, Mooney, Judge, and Pagán, Judge.

SHORR, P. J.

Defendant appeals from a judgment of conviction for attempted second-degree murder, first-degree assault, and menacing. On appeal, he raises eight assignments of error in which he argues that the trial court should have sua sponte intervened to strike statements that the prosecutor made during closing argument. Because we conclude that the trial court plainly erred by not sua sponte intervening regarding assignments of error three and four, we need not address the remaining assignments. We reverse and remand for a new trial.

The jury returned guilty verdicts on additional charges that were disposed of in the judgment without convictions because they merged with other verdicts.

The court has concerns about several of the statements made by the prosecutor in closing argument, but we ultimately only discuss the statements below that arise in connection with defendant's third and fourth assignments of error.

In State v. Chitwood, the Supreme Court set out the steps for determining whether a prosecutor's closing argument amounts to reversible plain error. 370 Or. 305, 518 P.3d 903 (2022). First, the reviewing court considers the prosecutor's closing argument to determine whether the argument was improper. Id. at 314. Second, the court considers whether the statements were legally erroneous and so prejudicial that they deprived the defendant of a fair trial such that the trial court should have sua sponte intervened-that is, whether the error is plain. Id. at 317. Third, we must determine whether to exercise our discretion to correct the error. Id. at 322.

Here, the prosecutor made the following remarks during closing argument.

"And there's sometimes a-you know, a tendency to think, well, okay, so we didn't hear about [CS's] statement at the hospital. Like, we know he gave one 'cause they said he gave one, but we don't know what's in it.
"For the Rules of Evidence that we all have to follow, here's what I can tell you unequivocally: [Defense counsel] is an excellent and experienced lawyer. And if there were inconsistencies in that statement or something that he felt would benefit his client, you would've heard about it.

"You can't speculate on things that aren't in front of you. And then you also have to evaluate the evidence, as His Honor said, dispassionately, right, fairly."

Defendant argues that those remarks were improper because they implied that the rules of evidence prevented the state from offering evidence that would have supported the state's case, invited the jury to speculate about it, and implied that defendant had a burden to present evidence of his innocence.

We agree with defendant. The prosecutor's reference to a statement that was not admitted in evidence, and invitation to the jury to infer that the contents of that statement would not have benefitted defendant, were improper argument. Further, those remarks were so prejudicial that they deprived defendant of a fair trial. We exercise our discretion to correct the error because it is grave-such arguments erode the protections of the rules of evidence and the presumption of innocence. Consequently, we reverse and remand for a new trial.

Reversed and remanded.


Summaries of

State v. Douglas

Court of Appeals of Oregon
Feb 7, 2024
330 Or. App. 578 (Or. Ct. App. 2024)
Case details for

State v. Douglas

Case Details

Full title:STATE OF OREGON, Plaintiff-Respondent, v. MARION AMADOR DOUGLAS…

Court:Court of Appeals of Oregon

Date published: Feb 7, 2024

Citations

330 Or. App. 578 (Or. Ct. App. 2024)