State v. Stull

"In general, in presenting closing arguments to the jury, counsel has 'a large degree of freedom' to comment on the evidence submitted and urge the jury to draw any [and] all legitimate inferences from that evidence," but that freedom does not permit "making statements of facts outside the range of evidence." Cler v. Providence Health System-Oregon, 349 Or 481, 487-88 (quoting Huber v. Miller, 41 Or 103, 115, 68 P 400 (1902)).

Defendant appealed a judgment of conviction for attempted assault on an officer, resisting arrest, and second-degree criminal mischief.  Defendant assigned error to statements made by the prosecutor during closing argument.  Defendant argued his behavior in the courtroom, when not on the witness stand, was not evidence and that the prosecutor impermissibly asked the jury to consider facts not in evidence.  The state argued that objections to later remarks in closing would be futile because the issue was adequately preserved at the first objection. "In general, in presenting closing arguments to the jury, counsel has 'a large degree of freedom' to comment on the evidence submitted and urge the jury to draw any [and] all legitimate inferences from that evidence," but that freedom does not permit "making statements of facts outside the range of evidence." Cler v. Providence Health System-Oregon, 349 Or 481, 487-88 (2010) (quoting Huber v. Miller, 41 Or 103, 115, 68 P 400 (1902)). The Court found that the prosecutor repeatedly referred to facts not admitted into evidence  and expressly asked the jury to consider those facts as evidence when rendering their verdict. The Court held that the statements in the case fundamentally altered what the jury would perceive the evidentiary record to be, such that it was likely that the error affected the verdict.  Reversed and remanded.