Summary
The Oregon Court of Appeals reversed and remanded a conviction for second-degree rape and first-degree sexual abuse due to plain error in the prosecutor's closing arguments. The court found that the prosecutor's repeated characterization of the defendant as a "predator," disparagement of forensic interviewing protocols, and personal attacks on defense counsel were so improper that no curative instruction could have ensured a fair trial. Applying the standard from State v. Chitwood, the court concluded the error was not harmless and warranted reversal.
Topics
Practice areas
Questions Presented
- Whether the prosecutor’s rebuttal comments constituted plain error that denied a fair trial
- Whether a curative instruction would have been sufficient to cure the error
Holdings
- The prosecutor’s comments were plain error, indisputably improper, and not curable by a curative instruction; therefore the conviction is reversed and the case remanded.
Key quotations
“The prosecutor’s remarks were plainly improper, and indisputably so. See State v. Perez, 373 Or at 607; the jury certainly could not have understood them as arguing that the prosecution had proved the facts of the case beyond a reasonable doubt, rather than urging them to decide the case on an improper basis.” (at 58)
“We have long held personal attacks on defense counsel to be impermissible. State v. Lundbom, 96 Or App 458, 461‑62, 773 P2d 11, rev den, 308 Or 382 (1989).” (at 60)
Factual background
Defendant dated the mother of a minor, A, and lived in the household under strict rules that prohibited him from being alone with the children. A testified that the defendant sexually abused and raped her. The prosecution presented the abuse testimony but excluded the defendant’s prior convictions. The prosecutor made inflammatory statements calling the defendant a "predator" and personally attacked defense counsel during rebuttal.
Procedural history
The trial court convicted the defendant, denied his motion for a new trial based on alleged prosecutorial misconduct, and entered judgment of conviction. The defendant appealed, asserting plain error from improper prosecutorial comments at rebuttal.
Remand instructions
Remand for a new trial consistent with reversal.