State v. Graham

In the specific context of prosecutorial misconduct in closing argument, for an error to be “plain,” it must be “beyond dispute that the prosecutor’s comments were so prejudicial as to have denied defendant a fair trial.” State v. Chitwood, 370 Or 305.

Defendant appealed her conviction for felony fourth-degree assault and harassment, arguing she did not receive a fair trial due to certain statements made by the prosecutor during closing arguments. The defendant objected to the prosecutor's comment that she "never said she blacked out," and the prosecutor's remarks in rebuttal about the state's decision not to call the defendant’s children to testify. In the specific context of prosecutorial misconduct in closing argument, for an error to be “plain,” it must be “beyond dispute that the prosecutor’s comments were so prejudicial as to have denied defendant a fair trial.” State v. Chitwood, 370 Or 305. The Court found that the prosecutor’s statement about the defendant never claiming to have blacked out was not improper, or at least not plainly so under ORAP 5.45(1). The Court reasoned that, in context, the jury would have understood the prosecutor to be emphasizing what the defendant had told police—specifically, that she “saw red”—rather than suggesting she was out of control or unable to remember the incident. This was relevant to whether the defendant intentionally punched the victim. The Court also found the prosecutor's rebuttal statements regarding the decision not to call the defendant’s children as witnesses were appropriate. The Court reasoned that these remarks were not improper in light of the defendant's own closing argument. The Court held that the defendant received a fair trial and affirmed the conviction.