State v. Chitwood

“[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 . . . that the defendant received a fair trial.” State v. Montez, 324 Or. 343, 357 (1996).

Defendant appealed three convictions on a 20-count indictment of sexual abuse. On appeal, Defendant argued the trial court erred in not issuing curative jury instructions or declaring a mistrial after the prosecuting attorney’s rebuttal argument unfairly prejudiced the jury. In response, the State argued that the defense made a “strategic choice” not to object and the Court of Appeals properly declined to review the record for “plain error.” “[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 . . . that the defendant received a fair trial.” State v. Montez, 324 Or. 343, 357 (1996). The Court reasoned the prosecutor’s closing statements were “plainly impermissible,” and the Court was compelled to conduct “plain error” review. The Court concluded the prosecutor’s rebuttal argument was sufficiently prejudicial to deny Defendant a fair trial. Reversed the decision of the Court of Appeals and the judgment of the circuit court. Remanded to the circuit court for further proceedings.