State v. Camirand

                                        1

                Submitted July 9, 2019, affirmed March 18, 2020


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  SCOTT LEANDER CAMIRAND,
                       aka Scott Camirand,
                       Defendant-Appellant.
                   Lincoln County Circuit Court
                     17CR37531, 17CR24691;
                    A165966 (Control), A165967
                                   

     Defendant appeals from a judgment of conviction for coercion and robbery
in the third degree. He asserts, among other contentions, that the trial court
erred by (1) allowing the prosecutor to argue facts not introduced into evidence
about why a substance found on defendant’s gloves had not been DNA tested
as blood; and (2) by refusing to give the witness-false-in-part jury instruction.
Held: Defendant failed to demonstrate that he was prejudiced by either asserted
error. Although the trial court should have sustained defendant’s objection to
the prosecutor’s improper closing argument, there was little likelihood that the
argument affected the jury’s determination about whether the substance on the
gloves was, in fact, blood. And, given the limited value that the witness-false-in-part instruction provides, and the fact that defendant challenged the credibility
of the state’s witnesses during his closing argument, any error in failing to give
that instruction was harmless.
    Affirmed.



   Thomas O. Branford, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah Laidlaw, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and David B. Thompson, Assistant
Attorney General, filed the briefs for respondent.
   Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
   DeVORE, J.
   Affirmed.
   James, J., dissenting.
2                                                        State v. Camirand

           DeVORE, J.
         Defendant appeals from a judgment of conviction for
coercion and robbery in the third degree. Defendant asserts
five assignments of error, two of which he preserved below
and the rest of which he asks us to review for plain error. We
reject the unpreserved challenges without discussion.1 With
regard to the preserved challenges, defendant first argues
that the trial court erred by allowing the prosecutor, during
rebuttal, to argue facts not introduced into evidence. Next,
defendant argues that the trial court erred by refusing to
give the “witness-false-in-part” jury instruction. We reject
those two preserved challenges as harmless. Accordingly,
we affirm.
         Because our analysis of the two preserved assignments of error turns on the issue of harmlessness, we consider the nature of the asserted errors in the context of the
trial as a whole. See State v. Lachat, 

, 582,

 (2019) (explaining that approach). We therefore
describe the parties’ theories of the case and the manner in
which evidence was offered and argued to the jury.
         The state brought defendant to trial on charges
of coercion and third-degree robbery. In his opening statement, the prosecutor explained that the state’s investigation
began when Officer Randall found CM walking down the
street with blood on his face. Randall knew CM, who was
homeless, from previous contacts, and Randall asked what
had happened. CM had stated that he had been beaten up
by defendant after an argument about a text message supposedly sent to CM’s ex-girlfriend, and that defendant made
CM give him CM’s cell phone and three one-dollar bills. The
prosecutor explained that CM told the officer that defendant
    1
      One of those assignments, advanced in a supplemental brief, argues that
the trial court erred under the Sixth and Fourteenth Amendments to the United
States Constitution by instructing the jury that it could return a verdict of guilty
without the unanimous agreement of the jurors. He argues that the United
States Supreme Court’s decision to grant certiorari in Ramos v. Louisiana, ___
US ___, 

, 

 (2019), signals the Court’s intention to
overrule its prior decision in Apodaca v. Oregon, 

, 

, 

 (1972). Unless and until that happens, Apodaca remains good law,
and we reject defendant’s argument. See, e.g., State v. Bowen, 

, 

 (2007), adh’d to as modified on recons, 

, 

, rev den, 

 (2008), cert den, 

 (2009).
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hit him several times in the face, and that the jury would
see photographic evidence of the injuries and hear from JB,
who witnessed the incident.
         The prosecutor noted the presence of blood on gloves
that defendant was wearing when he was later arrested. He
stated, “In the process of doing this, like the OJ case, there
was a pair of gloves involved that [defendant] was wearing,
whenever he did this.” He told the jury that
      “Officer Randall’s going to testify that he found [defendant] wearing the gloves described by [CM], and that he
   went up to talk to him. As he was speaking, he sees the
   gloves. He also notices there’s some blood on the gloves,
   and so the gloves are taken into custody, and [defendant] is
   placed under arrest. He’s been searched incident to arrest,
   and you can imagine what they found in the search. Three
   one dollar bills and a cellphone that belonged to [CM].
   Ladies and gentlemen, that’s robbery.”
          The state called three witnesses at trial. CM, the
state’s first witness, testified that, on the evening of June 8,
2017, he and JB were on a church porch attempting to sleep
when defendant approached and began to shout, claiming
that CM had sent a text message to CM’s girlfriend threatening to kill their baby. CM testified that, when he denied
defendant’s accusation, defendant attacked him, punching
him three times in the head and kicking him in the jaw,
resulting in several lesions on his face. CM said that defendant told him to hand over his cell phone, money, and cigarettes, and that he gave defendant his black ZTE cell phone,
three one-dollar bills, and a pack of cigarettes, which defendant took before leaving.
         CM testified that, after defendant left, he and JB
“started looking around and [saw] blood all over my sleeping
bag, blood all over me. You know, I—I realized how bloody
I really was until then.” He and JB then got up and walked
to a nearby parking garage, where they were approached
by Officer Randall on patrol, who asked CM what had happened. CM testified that he told Randall that he had been
assaulted by defendant, and Randall took pictures of him.
CM said that he had “[j]ust a bloody nose” but later found
out that it was broken.
4                                            State v. Camirand

        The prosecutor asked CM about the phone that had
been taken during the assault. CM said that it was a ZTE
phone that he had had for about a month or month and a
half. The prosecutor then had the following exchange with
CM:
       “Q: Show you what I’ve marked as State’s exhibit one.
    Do you recognize that?
       “A:   I do.
       “Q: Is that your cellphone?
       “A:   It is.
       “Q: How—how are you sure? There’s probably hundreds of those.
       “A: Because it’s the one [defendant] took. I can’t honestly say that without turning it on, I can’t honestly say
    that I can look at it and say it’s mine.
       “Q: Okay, and so you view that—that phone, and is
    that the exact type of phone that you had with you?
       “Yes.”
         On cross-examination, defendant elicited testimony
about CM’s description of the attacker. CM testified that he
had known defendant from around the church, and that he
told Randall that defendant was wearing blue gloves, jeans,
and a gray hoodie on the night of the attack. Then, on redirect, CM testified that he had known defendant for a few
months before the incident and knew that it was defendant
because “I could see him and I know who he is.” CM said
that he had given a description to Randall that defendant
was “[m]y height, my build, full beard, mustache, black
hair,” and he then identified defendant, sitting at counsel
table, as the attacker.
        The state’s second witness, JB, testified that he and
CM are friends, and that he “was sleeping and I got woke
up with [defendant] on top of [CM] punching his lights out.”
JB described the attack and that he heard defendant reference something about CM’s girlfriend and hurting his baby.
But, on direct examination, JB had difficulty identifying
defendant in the courtroom. JB stated that he would recognize defendant if he saw him, but that defendant—who was
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seated at counsel table—was not in the courtroom. After
explaining, “I’m blind,” JB proceeded to discuss what he saw
and heard during the attack. JB testified that defendant
said, “give me, anything you have of value, give it to me now,
and then he stopped, and he said no, no. I want you to hand
it to me,” and that CM did so.
          The state’s final witness was Randall. He testified
that he was on patrol when he found CM and noticed “quite
a bit of blood on his face.” Randall said that he asked CM for
his side of the story, which JB affirmed. Randall then ran
defendant’s name through a database and retrieved his DMV
photo. After seeing the photo, both CM and JB confirmed
that defendant was the attacker, and they told Randall that
defendant was “probably still at the St. Steven’s Church.”
Randall went to that location and arrested defendant.
         Randall testified that defendant was wearing “athletic style gloves” when he arrested him. During a search
incident to the arrest, Randall found $3 “in the same pocket
as his wallet but not inside of his wallet,” and a black ZTE
cell phone in defendant’s back pocket. Randall testified that,
as he was handcuffing defendant, he “noticed what appeared
to be some dry blood on them.” The gloves themselves were
then admitted as an exhibit, and Randall pointed out for the
jury what he believed to be blood on them.
         Randall was wearing a body camera during that
encounter, and that video was played for the jury. During
the video, Randall and another officer refer to blood on the
gloves, and one of the officers asks the other to photograph
the blood. After the video was played, the prosecutor asked,
“It looked like you were looking for more blood on [defendant]. Did you find any?” Randall responded, “I did not.”
         During defendant’s cross-examination, Randall testified that CM had not described defendant as having a
full beard and that, in fact, footage from his body camera
reflected that defendant did not have a full beard at that
time. Randall also acknowledged that the gloves seized from
defendant were not blue as described by CM, that he did not
see blood all over CM, and that it seemed like JB had “had
something to drink” the night of the incident.
6                                              State v. Camirand

         Defendant also elicited testimony on cross-examination about Randall’s investigation of the cell phone.
Randall acknowledged that CM had shown him a box for a
ZTE phone, but Randall did not seize the box or compare
the serial number on the box with the number on the phone
taken from defendant; Randall also acknowledged the phone
seized from defendant had been “locked” and its contents
were not investigated by police.
         After Randall testified, the state rested its case and
defendant did not put on any evidence. The parties then proceeded to closing arguments, where the prosecutor began by
acknowledging that JB’s testimony was not helpful to the
state—the “one hiccup that we get in this case. He did indicate that he has trouble seeing, and he’s—as he’s walking in
that is fairly noticeable.” After telling the jurors that he had
given them “everything that—that we’re allowed to have the
jury see, whether it be for us, against us,” the prosecutor
turned to his theory of the case:
       “In every case attorneys are taught that there should be
    a theory of the case that should have been the thing that
    something centers around, and the greatest one that it has
    ever been done, was by Johnny Cochran in the OJ trial.
    (Indiscernable) if the glove don’t fit you must acquit. So the
    theory in this case is the gloves do fit. You must convict.”
He then asserted that the only part of the state’s case that
could be called into question was JB’s inability to identify
defendant in the courtroom, which he attributed to defendant’s changed appearance (growing a beard) since the incident and JB’s poor eyesight.
         Defendant’s closing argument challenged, among
other things, the strength of the state’s evidence of identification. With regard to the phone, defendant argued that the
officers had the cell phone in their possession for months,
knew who supposedly could unlock it, but never tried to
open the phone or check the serial number against CM’s cell
phone box; moreover, he argued, CM was not even sure that
the phone was his. As for the money in his pocket, defendant
argued that “there’s nothing identifiable” about a person
having a few loose dollar bills in a pocket outside a wallet.
Defendant then turned to the gloves:
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       “Now the gloves. First of all, I don’t think you actually
   heard [CM] saying that there were gloves being worn, but
   these are apparently the gloves that if they don’t—or if they
   do fit you must convict, right? Okay. These gloves, these
   blood stains supposedly. We didn’t hear that they’d been
   identified specifically as blood—blood stains. There’s a couple little marks matching up with these injuries. Did these
   gloves have anything to do with this face?
       “You also heard that of the description provided they
   were the wrong color. You got some green gloves here.
   That’s not what was described. Now again we’re talking
   about people who are homeless, so staying out in the middle
   of the night in Lincoln County. You heard from the officer it
   was a bit chilly. Does it mean anything that you are wearing gloves? Or does it mean that it was chilly outside?
      “And again I really want you to look closely when you
   get the opportunity at the supposed blood, hasn’t been
   identified as blood, nobody tested it as blood, and the small
   amount of whatever that is on these gloves that was caused
   by beating up [CM].”
        In rebuttal, the prosecutor attempted to address
those asserted weaknesses in the state’s proof. He argued:
       “[Defendant] did compel [CM] to hand over his property,
   but he wasn’t going to leave. [CM] didn’t want to take more
   of a beating. Now admitted the follow up in this case was
   a little lacking, so with that, this could have been kind of
   looked into. The State will advise you that shortly after
   this Officer Randall went and got married and had a honeymoon right after this incident occurred. He was gone
   for a while so the follow up was a little bit slow on this
   case.
      “However, let’s talk about DNA evidence. So I mentioned
   to you earlier we talked about the CSI effect that you can
   get DNA in an hour. In the case that we have right now, in
   the cases we have going right now, it’s taking four to six
   months.”
         At that point defendant stated, “Objection, arguing
facts not in evidence.” The court responded, “It’s up to the
jury to recall what the testimony was so I’m going to overrule the objection. It’s strictly up to you what your recollection of the evidence is.”
8                                            State v. Camirand

      The prosecutor then continued the same line of
argument:
        “So this occurred a little over two months ago. The
    State has no ability to get DNA in that short of period of
    time whenever a jury trial was requested, so the DNA cannot happen that quick. And so we’re arguing that—that
    is blood. Football gloves or baseball gloves that are being
    worn, and you get to take them back into the room, and
    you get to see the blood stains that are on these gloves.
    Apparently from hitting [CM].”
         After closing arguments, the court instructed the
jury, including that, “[i]n reaching your verdict you should
consider only the evidence that is received and these instructions. I trust that the attorneys opening statements and
closing arguments have been helpful to you, but remember
if your recollection of the evidence differs from that of the
attorneys, rely on your own recollection unless and until you
can convince [sic] that your recollection is not accurate.”
        While deliberating, the jury sent a question to the
court asking whether the phone could be turned on and
unlocked. The court told the jury that it could attempt to
turn on the phone, but that the battery was likely dead and
that the charger was not in evidence. The jury then deliberated further and ultimately returned a guilty verdict on the
charges.
         On appeal, defendant argues that the trial court
erred as a matter of law by allowing the prosecutor to argue
facts not in evidence. We agree. After defendant’s closing
argument that “the supposed blood” had not been “identified
as blood, nobody tested it as blood,” it was permissible for the
prosecutor, on rebuttal, to tell the jury that it could find that
the substance was blood based on the evidence presented,
without any DNA testing. See, e.g., State v. Spieler, 

, 

 (2015) (“[I]f defense counsel invites the factfinder to consider nonadmitted evidence
as undermining the state’s case, the prosecutor is entitled
to respond, again, so long as that response comports with
the proper allocation of the burden of proof.”); Accord Pickett
v. State, 222 Md App 322, 337, 112 A3d 1078, 1087 (2015)
(Holding that the prosecutor’s argument did not “insinuate
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that appellant’s DNA and fingerprint were found on the
iPhone case. Rather, it was merely a response to appellant’s
counsel’s argument regarding forensic evidence, asserting
that the lack of DNA evidence and fingerprints was irrelevant, a ‘red herring.’ ”). That is, there was nothing objectionable about the prosecutor telling the jury that it would have
the opportunity to take the gloves “back into the room, and
you get to see the blood stains that are on these gloves,” and
to tell the jury that the state was nevertheless arguing that
the substance was blood even without DNA testing.
         But the prosecutor did not limit his argument to
that type of permissible rebuttal. The prosecutor also provided an explanation for the state’s lack of DNA testing,
stating that “it’s taking four to six months” to get DNA
tests back and that the state had “no ability to get DNA
in that short of period of time whenever a jury trial was
requested, so the DNA cannot happen that quick.” That was
error, and the state correctly concedes the point. See Cler v.
Providence Health System-Oregon, 

, 

 (2010) (“In jury cases, proceedings shall be conducted,
to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such
as making statements or offers of proof or asking questions
in the hearing of the jury.” (Internal quotation marks and
citation omitted.)).
          The only question is whether that error prejudiced
defendant. See State v. Davis, 

, 

(2003) (“Oregon’s constitutional test for affirmance despite
error consists of a single inquiry: Is there little likelihood
that the particular error affected the verdict?”).2 According
to defendant, “[t]he state lacked physical evidence connecting defendant to the crimes,” and it “used the facts not in
evidence to persuade the jury to overlook its deficient proof
that the marks on defendant’s gloves were CM’s blood.” That
is, “[t]he state invited the jury to forgive the state for failing to properly investigate a crime and, in so doing, convict
     2
       Although defendant contends that the prosecutor’s argument violated his
right to due process under the federal constitution, his objection did not preserve
that issue; nor has he demonstrated that the prosecutor’s comments resulted in a
fundamentally unfair trial. We therefore review harmlessness solely as a matter
of state law.
10                                        State v. Camirand

defendant of the crime based on something less than sufficient evidence presented at the trial.” In response, the state
argues that “the issue of whether there was blood on defendant’s gloves (the officer testified only that it looked like
blood) was relatively unimportant” and the “prosecutor’s
improper reference to facts not in evidence during closing
argument did not materially prejudice defendant.”
         The record, as recited above, does not support the
state’s characterization of the presence of blood on defendant’s gloves as “relatively unimportant” to its case. In the
state’s opening and closing arguments, the existence of blood
on the gloves was a point of emphasis by the prosecutor and
was one of the facts tying defendant to the crime, along with
other circumstantial evidence and eyewitness testimony.
It was not merely cumulative of other circumstantial evidence that defendant committed the robbery, such as the
phone, location, and dollar bills, and defendant challenged
the significance of that other evidence and the reliability of
the eyewitness accounts of the assault—one of whom could
not identify defendant in court. The presence of blood on the
gloves was a fact of consequence in the case and part of the
prosecutor’s “central” theme, contrary to the state’s contention on appeal.
         Nonetheless, we conclude that the prosecutor’s
improper closing argument had little likelihood of affecting the jury’s determination as to whether the substance on
the gloves was, in fact, blood. The prosecutor fully acknowledged that the substance on the gloves had not been tested,
and nothing in his argument suggested what the outcome of
such tests might be. Rather, he improperly introduced facts
on why such testing had not occurred.
         On this particular record, it is unlikely that the
jury was influenced or distracted by the prosecutor’s introduction of facts bearing on why the testing had not occurred.
The jury was instructed, both at the outset of the trial and
after closing arguments, that it was to decide the case based
on the evidence presented, and that the parties’ arguments
are not evidence. And, even though the court erroneously
overruled defendant’s objection, it nevertheless gave a similar cautionary instruction at that time, stating, “It’s up to
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the jury to recall what the testimony was so I’m going to
overrule the objection. It’s strictly up to you what your recollection of the evidence is.”
         In light of the repeated instructions to follow the
evidence—and the fact that there was no dispute about
what “evidence” was in the record with regard to the substance on the gloves—there is no reason to believe that the
jury decided whether the substance was blood based on
anything other than its own assessment of the gloves themselves (an exhibit in the case), the officer’s testimony about
the substance, and the video evidence presented at trial. In
sum, the prosecutor’s explanation for the lack of DNA testing, although improper, was not likely to have influenced
the verdict, and the court’s error in overruling the objection
provides no basis for reversal.3
         Defendant’s remaining challenge concerns the trial
court’s refusal to give the “witness-false-in-part” jury
instruction. Unlike most jury instructions, the “witness-false-in-part” instruction exists as a part of a statute, ORS
10.095(3).4 That statute requires the instruction to be given
on all “proper occasion[s],” which occur when “there has
been sufficient evidence for the jury to decide that at least
one witness consciously testified falsely.” Ireland v. Mitchell,

, 

 (1961). Minor inconsistencies
in a witness’s testimony will generally not be sufficient to
support giving the instruction. See 

. Instead, there
must be evidence supporting an inference of intentional
deceit by the witness. 

     3
       Although defendant’s assignment of error primarily relies on the prosecutor’s introduction of facts about DNA evidence, he also references the prosecutor’s
statements that follow-up on the case was “a bit slow” because “Officer Randall
went and got married and had a honeymoon right after this incident occurred.” It
is debatable whether defendant preserved a claim of error based on those statements, considering that he did not object until the prosecutor’s later statements
about DNA evidence. In any event, we are not persuaded that, in the context of
the case as a whole, that fleeting reference to the officer’s marriage and honeymoon, although also improper, had the potential to influence the jury’s verdict.
     4
       In relevant part, ORS 10.095 provides that:
         “[The jury is] to be instructed by the court on all proper occasions:
         “…
         “(3) That a witness false in one part of the testimony of the witness may
     be distrusted in others[.]”
12                                          State v. Camirand

         Defendant contends that there was sufficient evidence for the jury to infer that either CM or JB consciously
testified falsely. He cites inconsistencies between CM’s and
JB’s testimony and Randall’s testimony about statements
they made regarding whether CM’s attacker kicked him or
not and regarding the precise words that the attacker used
when demanding valuables from CM. He also contends that
CM’s description of his attacker’s facial hair and clothing
color did not match defendant’s appearance when he was
arrested. Finally, he notes that JB was unable to identify
him as CM’s attacker at trial, despite identifying him to
Randall.
         After reviewing the record, we conclude that there is
no need for us to decide whether the evidence would provide
a basis for the jury to infer that CM or JB consciously testified falsely. Even if the evidence does provide such a basis,
any error in failing to give the instruction was harmless
as there is little likelihood it affected the jury’s verdict. See
State v. Ashkins, 

, 

 (2015) (giving the standard for harmless error and applying harmless
error analysis to a court’s failure to give a jury instruction).
         We have previously explained that the “witness-false-in-part” instruction should be “approached with caution.” State v. Walker, 

, 

(2018). Giving the instruction risks inviting the jury to
speculate that the court believes one of the witnesses was
untruthful. Ireland, 

. The instruction adds
very little to the case as it does not require anything new
of the jury. State v. Payne, 

, 

, rev allowed, 

 (2019). Instead, the instruction
“merely restates common sense” and only “tells the jury
what it is already free to do.” Id. at 441-42. Even without
the instruction, we have observed, parties can get the same
effect by arguing during closing that a witness’s testimony
was not credible. Id. at 442. Here, defendant did just that.
         Defendant spent almost half of his closing argument
challenging the credibility of the state’s witnesses. Given
the instruction’s scant value to the jury and that defendant
challenged the credibility of the state’s witnesses during his
closing argument, we conclude that, even assuming, without
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deciding, that the instruction was appropriate, there is little likelihood that the failure to give it would have affected
the verdict. Any error in failing to give the instruction was
harmless.
        Affirmed.
        JAMES, J., dissenting.
         The prosecutor in this case began his closing arguments to the jury by saying that in “every trial I’ve ever
done I wanted to make something up. That’s not allowed.
We’re not allowed to do that.” He then went and did exactly
that. In a case involving an allegedly bloody glove—a case
the prosecutor himself likened to “the OJ case,” going so
far as to argue “[T]he gloves do fit. You must convict”—the
prosecutor rightly must have perceived that the defense had
scored a valuable point in closing argument when defense
counsel pointed out that the glove, although described as
“bloody” by witnesses, had never actually been tested by a
lab for blood.
         We have said, numerous times, that scientific evidence carries heightened persuasive power with a jury.
See, e.g., State v. Branch, 

, 

, rev den, 

 (2011) (noting that evidence which
“draws its convincing force from a scientific principle …
would be more persuasive to the trier of fact due to its scientific nature”). The impact of scientific evidence has been universally noted by courts in all jurisdictions. Consequently,
the absence of scientific evidence, where it might reasonably
be expected by a jury, is not only a proper, but a potentially
powerful, line of argument for a litigant. See, e.g., Sample v.
State, 314 Md 202, 207, 209, 

 (1988)
(When “the State has failed to utilize a well-known, readily
available, and superior method of proof to link the defendant
with the criminal activity, the defendant ought to be able to
comment on the absence of such evidence”).
        Like any experienced trial advocate who understands the power of closing arguments, the prosecutor here
apparently determined that some response was necessary
to assuage the jury. He invented facts not in evidence, then
argued that nonevidence as mitigation to counter defense
14                                                       State v. Camirand

counsel’s point. First, the prosecutor played to the sympathies of the jury by telling them that a failure to test for
blood was due, in part, to the fact that the investigating officer had just married and “had a honeymoon right after this
incident occurred. He was gone for a while so the follow up
was a little bit slow on this case.” Then, the prosecutor took
the premise that underlies defense counsel’s point—that
the state’s failure to utilize a well-known, readily available,
and superior method of proof to link the defendant with the
criminal activity can contribute to reasonable doubt—and
labeled it the “CSI effect” and invented evidence to support
the argument that any such expectations are unreasonable
and unrealistic by saying “that you can get DNA in an hour
… in the cases we have going right now, it’s taking four to
six months.”
          Neither the majority, nor I, conclude that the prosecutor’s actions here were anything other than improper.
The state itself conceded that point on appeal. In a criminal
case, where the stakes are someone’s liberty, the prosecutor invited the jury to base its decision, in part, on fictional
evidence. And the record supports the conclusion that he
did so deliberately, and with the purpose of gaining a tactical advantage.1 Ultimately, however, the majority holds
that any such error was harmless under Oregon’s constitutional test for affirmance despite error, which requires us
    1
      I do not imply, however, that the prosecutor did so maliciously. I do not
believe that to be the case. On this record, he appears to have been caught up in
the passion of advocacy. His error here is entirely human and understandable,
but no less error. For prosecutors are not merely advocates. A “prosecutor’s role
as a representative of the state is not just to convict a criminal defendant, but
to seek justice in every case.” State v. Harrell/Wilson, 

, 

 (2013). They hold a place of power in our justice system and accordingly are
governed by stringent standards. As the United States Supreme Court stated:
    “The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as
    compelling as its obligation to govern at all; and whose interest, therefore, in
    a criminal prosecution is not that it shall win a case, but that justice shall
    be done. As such, he is in a peculiar and very definite sense the servant of
    the law, the twofold aim of which is that guilt shall not escape or innocence
    suffer. He may prosecute with earnestness and vigor—indeed, he should do
    so. But, while he may strike hard blows, he is not at liberty to strike foul
    ones. It is as much his duty to refrain from improper methods calculated to
    produce a wrongful conviction as it is to use every legitimate means to bring
    about a just one.”
Berger v. United States, 

, 

, 

 (1935).
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to conclude that there was little likelihood that the particular error affected the verdict. See State v. Davis, 

, 

 (2003). I cannot confidently arrive at that
result.
          The majority’s interpretation and application of
Oregon law on harmless error expands this court’s flawed
jurisprudential approach to assessing the harm of prosecutorial misconduct in closing. We should be applying a methodology that more fully appreciates the reality of the impact
of misconduct in closing, while remaining consistent to our
constitutional mandate under Article VII (Amended), section 3, of the Oregon Constitution to affirm a judgment “notwithstanding any error committed during the trial” when
such error is determined to be harmless.
         First, closing arguments are powerful. Their very
purpose is to persuade. United States v. Jones, 

 (10th Cir 1999), judgment vac’d, 

, 

, 

 (2000) (“[P]ersuasive summation of
the facts admitted into evidence is the very purpose of closing argument.”) As one court aptly noted:
   “The power of closing argument in a criminal case cannot
   be overstated, especially when the jury’s verdict turns on
   limited circumstantial evidence. A skilled prosecutor may
   weave that evidence into a tight narrative that virtually
   demands a finding of guilt. A similarly skilled defense lawyer, however, may point out gaps in the evidence suggestive
   of reasonable doubt and, thus, an obligation to render a not
   guilty verdict. The foundation of our adversarial system of
   adjudication depends upon that sort of clash of advocates
   testing the evidence in a given case, thereby guiding lay
   jurors to a ‘true’ verdict.”
State v. Payne, No 119083, 

 at *1 (Kan Ct
App, Sept 20, 2019).
         Second, closing arguments by the representative of
the state are especially powerful, being an expression of the
views of the government which carries with it implications
of authority, knowledge, and trust:
   “The power and force of the government tend to impart an
   implicit stamp of believability to what the prosecutor says.
   That same power and force allow him, with a minimum of
16                                            State v. Camirand

     words, to impress on the jury that the government’s vast
     investigatory network, apart from the orderly machinery
     of the trial, knows that the accused is guilty or has nonjudicially reached conclusions on relevant facts which tend
     to show he is guilty.”

Cardona v. State, 185 So 3d 514, 520 (Fla 2016) (citation
omitted). Scholars have cautioned that the weight a prosecutor’s words carry in closing arguments should be properly
appreciated by appellate courts in the context of harmless
error:
     “Even when courts label these statements as improper, however, they often treat these statements as harmless error.
     In doing so, courts underestimate the power of these statements. Research consistently shows that jurors inherently
     find prosecutors to be more credible than defense counsel.”

Mary Nicol Bowman, Mitigating Foul Blows, 49 Ga L Rev
309, 322-23 (2015).
         Third, rebuttal closing is even more powerful still.
On rebuttal, there is no opportunity for opposing counsel to
respond, and such comments are imbued with the power of
recency in the minds of the jury. The persuasive effects of
recency have been known since the sophists and are now confirmed with empirical psychological research. This research
shows that people tend to remember best, and be influenced
most, by the latest event in a sequence more than by earlier events, making rebuttal the most persuasive aspect of
closing arguments. See, e.g., Ryan Patrick Alford, Catalyzing
More Adequate Federal Habeas Review of Summation
Misconduct: Persuasion Theory and the Sixth Amendment
Right to an Unbiased Jury, 59 Okla L Rev 479, 518 (2006).
“[H]uman experience validates this psychological concept.”
Larry S. Pozner and Roger J. Dodd, Cross-Examination:
Science and Techniques 501 (2d ed 2004). “There is no one
among us who does not want to have the last word in an
argument.” Michael D. Cicchini, Prosecutorial Misconduct
at Trial: A New Perspective Rooted in Confrontation Clause
Jurisprudence, 37 Seton Hall L Rev 335, 341 (2007).
         Unaddressed misconduct in closing argument carries serious systemic implications for the perceived fairness
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of our judicial system. As commentators have noted, when
a court finds error, but fails to correct it, we risk “tacitly
inform[ing] prosecutors that they can weigh the commission
of evidentiary or procedural violations not against a legal or
ethical standard of appropriate conduct, but rather, against
an increasingly accurate prediction that the appellate courts
will ignore the misconduct ….” Bennett L. Gershman, The
New Prosecutors, 53 U Pitt L Rev 393, 425 (1992). The risk,
of course, is that when we hold harmless what began as
entirely nonmalicious conduct, as in this case, we tie our
hands from correcting similar conduct in the future done
maliciously. “This system creates little incentive for prosecutors to change their behavior and avoid making improper
comments because future prosecutors committing the same
impropriety in a later case that was held to be misconduct
in an earlier one are no more likely than the prosecutor in
the first case to see any meaningful consequences from the
misconduct.” Bowman, 49 Ga L Rev at 352. Those systemic
concerns, however, cannot override our constitutional obligation to assess harm in each case.

         An approach to harmless error in individual cases—
one that is mindful of the systemic consequences of inaction,
while remaining true to our obligations under the constitution—begins with a recognition that appellate courts are
poorly suited to the task of assessing juror impact. The task
of a reviewing court, years after the trial has completed,
to transport itself back and assess the mindset of twelve
citizens whom that reviewing court has never met is not an
easy one. The reality of such an assessment has been widely
criticized, as one scholar noted:
   “Like the reader left to ponder what would happen if one
   could travel back in time, a jurist or commentator can only
   expound on what might have happened at a trial if things
   had gone differently, if the trial had actually been carried
   out free of error. As a result, the conclusions obtained can
   be no better than science fiction. We can argue about these
   conclusions-about whether a jury would have convicted the
   defendant without reference to the prohibited evidence-but
   the conclusions we come to are no more satisfying than
   those we arrive at when arguing over the plot of a good
   novel.”
18                                        State v. Camirand

Sam Kamin, Harmless Error and the Rights/Remedies Split,
88 Va L Rev 1, 21 (2002).

         An appellate assessment of harmless error in this
area can be honest about our limitations by giving appropriate weight to the reasoned tactical decisions of trial counsel. The women and men who appear in circuit courts daily
throughout Oregon on criminal matters, both for the prosecution and the defense, are some of the most skilled trial
attorneys in the nation. By the end of their first year, a new
prosecutor or defense lawyer will have conducted countless
jury trials. Within only a few years they will be as seasoned
at reading a jury and crafting a persuasive argument as the
most senior attorney in another practice area. These women
and men know their jobs and are very good at them. When
they make a choice to pursue a line of argument to a jury it
is not on a whim or a hunch, it is because extensive experience has taught them that such argument is necessary and
effective.

         In assessing harmless error in closing arguments,
we should begin with the presumption that, typically, trial
counsel made the argument for a tactical reason. As discussed above, that is the case here. Further, we should be
mindful that it was trial counsel, not an appellate court, who
stood in the well of the court that day and looked into the
eyes of 12 jurors and, based on trial experience and learned
skills in jury persuasion, made the strategic decision that
that particular statement was what was necessary to move
the jury.

         When a reviewing court declares misconduct in
closing argument harmless, that court is, in effect, saying
that the tactical decision of trial counsel to make that argument to persuade the jury was unreasonable, as it had little
likelihood of affecting the jury. At least in other contexts—
in particular on issues of preservation and claims of plain
error—Oregon courts are generally hesitant to displace the
reasonable tactical decision of counsel. See, e.g., Stevens
v. State of Oregon, 

, 

 (1995)
(“[A]n appellate court usually will not second-guess the tactical decisions of a lawyer in the course of representing a
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criminal defendant.”). That hesitancy should apply equally
in the assessment of harm in closing arguments.
         Here, the prosecutor made an argument in rebuttal
closing that he reasonably believed would affect the jury.
There is nothing in this record that convinces me that my
assessment of the persuasive power of that argument, to
that particular jury, is superior to his. His reasoned tactical
decision to make that argument to persuade jury is powerful evidence that it, in fact, was reasonably likely to affect
the jury. Based on this record then, I cannot conclude that
the error had little likelihood of affecting the verdict.
        I respectfully dissent.