State v. Soprych

Defendant appealed a judgment of conviction of unlawful possession of methamphetamine. On appeal, defendant argued that the trial court erred in denying his motion for a mistrial. Specifically, defendant challenged prosecutorial statements made during voir dire. A prosecutor’s reference to or comment on a defendant’s invocation of a constitutional right, such as the right to counsel, the right to remain silent, or the right to a trial, may prejudice a defendant’s ability to have a fair trial if the jury is likely to draw a negative inference from the exercise of that right. State v. Smallwood, 277 Or 503, 505-06, 561 P2d 600, cert den, 434 US 849, 98 S Ct 160, 54 L Ed 2d 118 (1977). The court explained that the prosecutor’s hypothetical, posed to the jury during voir dire, was “a thinly veiled comment on defendant’s choice to exercise his right to a trial and was improper.” In fact, as the Court noted, “the prosecutor readily admitted that the implication she was seeking to draw was that defendant was exercising his right to a trial even though the prosecutor believed, and by extension the jury should as well, that the evidence of guilt was overwhelming.” The court emphasized that prosecutorial statements that distort the presumption of innocence can necessitate a mistrial. State v. Worth, 231 Or App 69, 76, 218 P3d 166 (2009). Thus, the Court concluded that, “given the context, the voir dire question and hypothetical undermined the presumption of innocence and deprived defendant of an opportunity for a fair trial in front of an impartial jury, as guaranteed under both the state and federal constitutions.” Reversed and remanded.