State v. Durant

Improper yet curable statements are not subject to plain error review as “the defendant was not denied a fair trial.” State v. Durant, 327 Or. App. 363, 365 (2023).

During closing rebuttal of a criminal trial, the prosecutor remarked that every defendant has the right to a trial, compelling the state to fulfill its burden of proof requirement, however reasonable double does not automatically exist in every trial. The defendant argued that the trial court’s failure to intervene constituted a plain error as the comments prejudiced the jury and denied the defendant a fair trial. “[A] defendant asserting plain error must demonstrate that the prosecutor’s comments were so prejudicial that an instruction to disregard them would not have been sufficiently curative to assure the court [resulting in an unfair trial].” State v. Chitwood, 370 Or. 305, 312 (2022). Thus, improper yet curable statements are not subject to plain error review as “the defendant was not denied a fair trial.” State v. Durant, 327 Or. App. 363, 365 (2023). While prosecutors may refer to the defendant’s constitutional rights, such references may lead the jury “to draw a negative inference from the exercise of that right.” State v. Soprych, 318 Or. App. 306, 309 (2022). Here, the Court found that although the statements were improper, they were not egregious because they could have been fixed by a real-time instruction. The Court reasoned that because the prosecutor did not misstate the burden of proof or law, did not imply only guilty people are tried, and followed the statements with a legal discussion on reasonable doubt, the statements did not trigger plain error review. Thus, the Court held that the statements did not deny the defendant a fair trial. Affirmed.