State v. Babcock

State v. Chitwood established that a prosecutor's comments must be "so prejudicial" that any sue sponte instruction by the court would be insufficient to safeguard a defendant's right to a fair trial.

Defendant appealed their conviction of driving under the influence of intoxicants. Defendant assigned error to the trial court's failure to intervene during the prosecutor's rebuttal closing argument. Defendant highlighted two statements where the prosecutor referred to defendant's right to a trial and stated, "I say he's guilty." A court may "correct a 'plain' error [when] the legal point is obvious and not reasonably in dispute, and the error is apparent on the record without [the Court] having to choose among competing inferences." State v. Babcock, 327 Or.App. 358, 359 (2023). Chitwood established that a prosecutor's comments must be "so prejudicial" that any sue sponte instruction by the court would be insufficient to safeguard a defendant's right to a fair trial. State v. Chitwood, 370 Or. 305, 312 (2022). Moreover, an improper yet curable statement falls outside of plain error review, as it does not deny a defendant a fair trial. In analyzing the prosecutor's statements, the Court found that the prosecutor's remark "I say he's guilty" within the context of rebuttal closing, would be interpreted by a reasonable jury as a conclusory assertion based on the totality of evidence against defendant and not the prosecutor's personal opinion. While the Court acknowledged the potential danger of a negative inference when referring to a defendant's right to a trial, the statement here lacked a clear implication that "only guilty people go to trial." 327 Or.App. 358 at 362. The Court held that the prosecutor's statements were insufficient to warrant plain error review. Affirmed.