State v. Dumdei

“Prosecutorial statements that were improper but curable are not an appropriate subject of plain-error review”

The defendant here, in appealing his fourth-degree assault conviction that arose out of a domestic violence strangulation allegation, made five assignments of error that the prosecution made prejudicial statements depriving him of a fair trial and a sixth assignment of error that the court erred by failing to adequately instruct the jury of the pain element of fourth-degree assault. Specifically, the defendant claims that, at trial, the prosecutor improperly questioned him and impliedly shifted the state’s burden onto him during the closing arguments. While the court did conclude that the prosecutors statements made during closing arguments were improper in a way that prejudiced the defendant by distorting the burden of proof, the Court only has the authority to review plain error, especially because there were no objections made at the trial court. On the fifth assignment of error, the court held that “prosecutorial statements that were improper but curable are not an appropriate subject of plain-error review,” and therefore, because the statements here were curable, the Court of Appeals cannot review the improper statements. On the sixth assignment of error, the court held that there was not a plain error because the trial court’s obligation is to “state ‘all matters of law necessary for its information in giving its verdict.’” ORCP 59 B. The Oregon Court of Appeals affirmed the trial court’s decision.