State v. Perez

“[A] plain-error challenge based on the prosecution’s purportedly improper arguments to the jury [requires] that the defendant establish that it is obvious and beyond reasonable dispute that the prosecutor’s statements were improper, whether because they misstated the law, adversely commented on the defendant’s exercise of a constitutional right, referenced matters not in evidence, or otherwise could only be understood to have urged the jury to draw an impermissible inference.”

Following a circuit court conviction, the Court of Appeals concluded that three comments made as part of the prosecutor’s closing argument were “obviously improper”, and were “so prejudicial” that Defendant was denied a fair trial.

Those comments were:

1. “I think oftentimes when you have [t]rial, [the] jury might have a misconception about the purpose of [t]rial.”
2. “Just because there is a [t]rial doesn’t necessarily mean there’s a controversy of fact.”
3. “[T]he [s]tate also in this justice system is entitled to due process of your consideration.”

The Supreme Court reversed, concluding that defendants arguing plain error must show that it was “obvious and not reasonably in dispute” that one of the comments would have had an impermissible effect on the jury (not just that they could have).

“When considered in context, the prosecutor’s comments, while ill-advised, were not indisputably impermissible, as they must be before any error allegedly resulting from them can be deemed obvious and beyond reasonable dispute.”

As the challenged comments were not the basis for an “obvious” error, one “beyond reasonable dispute,” Defendant failed to establish the requirements for finding plain error.