State v. Brunnemer

A trial court abuses its discretion when it overrules a defendant’s objection to a prosecutor’s improper argument if the argument is “likely to prejudice the jury unfairly,” and the trial court does not take action sufficient to cure the prejudice. State v. Logston, 270 Or App 296, 303 (2015) (quoting State v. Bolt, 108 Or App 746, 749, (1991))

Defendant appealed judgments of conviction for multiple domestic-violence offenses.  Defendant assigned error to the trial court’s failure to sustain Defendant’s objections or grant a mistrial in response to the State’s closing argument, in which the prosecutor made comments critical of defense counsel during rebuttal.  On appeal, Defendant argued his right to a fair trial was compromised by the prosecutor's statements, and that the trial court should have sustained his objections to the statements. Prosecutorial misconduct is “any activity by the prosecutor which tends to divert the jury from making its determination of guilt or innocence by weighing the legally admitted evidence in the manner prescribed by law.” State v. James Edward Smith, 4 Or App 261, 264 (1970).  A trial court abuses its discretion when it overrules a defendant’s objection to a prosecutor’s improper argument if the argument is “likely to prejudice the jury unfairly,” and the trial court does not take action sufficient to cure the prejudice. State v. Logston, 270 Or App 296, 303 (2015) (quoting State v. Bolt, 108 Or App 746, 749, (1991)).  The Court of Appeals concluded the prosecutor's statements during closing arguments unfairly prejudiced the jury by urging the jury to find Defendant guilty based, not exclusively on the strength of the State's evidence, but on a desire to punish defense counsel.  Thus, the Court held the trial court abused its discretion in failing to grant a mistrial or sustain Defendant's objections to the statements. Reversed and remanded.