365
173 v. Pouncey
State 303 8,
April Or2020
App
Argued and submitted March 5, 2018, affirmed April 8, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
ORLANDO LEE POUNCEY,
Defendant-Appellant.
Washington County Circuit Court
C150290CR; A162761
464 P3d 448
On appeal, defendant argues that the trial court erred by (1) denying his
motion for mistrial following the prosecutor’s closing remarks that the presumption of innocence was “no more” and (2) applying the firearm minimum sentence
required by ORS 161.610(4) to a conviction other than the first one for which
he was sentenced. Held: (1) Defendant’s mistrial motion was timely and, therefore, preserved for appellate review; on the merits, however, the trial court did
not abuse its discretion in denying that motion. (2) The case law regarding ORS
161.610(4) does not provide that, in a single case involving multiple firearm
offenses, the firearm minimum sentence must be imposed on the first conviction
for which a defendant is sentenced.
Affirmed.
Andrew Erwin, Judge.
Eric Johansen, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services. Orlando Lee Pouncey filed the supplemental brief pro se.
Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.*
ORTEGA, P. J.
Affirmed.
______________
* Egan, C. J., vice Garrett, J. pro tempore.
366 State v. Pouncey
ORTEGA, P. J.
Defendant was convicted of murder with a firearm;
unlawful use of a weapon with a firearm (UUW-firearm);
and felon in possession of a firearm with a firearm (FIP-firearm). Challenging his convictions and sentences on
appeal, defendant argues, inter alia, that the trial court
erred by (1) denying his motion for mistrial following the
prosecutor’s remarks in closing that the presumption of
innocence was “no more” and (2) applying the firearm minimum sentence required by ORS 161.610(4) to a conviction
other than the first one for which he was sentenced (FIP-firearm instead of murder). First, we conclude that defendant’s mistrial motion was timely and, therefore, preserved
for our review; on the merits, however, the trial court did
not abuse its discretion in denying that motion. Second, we
conclude that the case law regarding ORS 161.610(4) does
not provide—as defendant posits—that, in a single case
involving multiple firearm offenses, the firearm minimum
sentence must be imposed on the first conviction for which a
defendant is sentenced. Finally, we reject without discussion
defendant’s remaining assignments of error and affirm.
The relevant facts are procedural and undisputed.
The statement giving rise to defendant’s mistrial motion
occurred during the state’s rebuttal closing argument, when
the prosecutor referenced defendant’s entitlement to the
presumption of innocence:
“[PROSECUTOR]: The defendant a couple weeks ago
was presumed to be innocent. Yeah. Got it. I respect that.
That’s the way the system works. No more. The evidence is
overwhelming—
“[DEFENSE COUNSEL]: Your Honor, I’ve got a matter for the Court.
“THE COURT: We’ll deal with it later. Continue.
“[PROSECUTOR]: He was afforded that presumption of innocence. That has been overcome. The State
has, indeed, overcome that presumption of innocence and
proven to you that the defendant is, indeed, guilty beyond a
reasonable doubt.”
Shortly after, the prosecutor concluded his rebuttal argument, and the trial court proceeded to instruct the jury,
Cite as 303 Or App 365 (2020) 367
to excuse it for deliberations, and to dismiss the alternate
juror. The court then addressed defendant:
“THE COURT: Okay. [Defense counsel], you had a
matter for the Court.
“[DEFENSE COUNSEL]: I did. In closing argument,
[the prosecutor] stated that two weeks ago the presumption
of innocence applied and that it no longer applies at this
point, or some point in between two weeks ago and now,
and that is an improper assertion of law.”
The trial court responded that it had understood the prosecutor to be arguing that the state had overcome the presumption of innocence by meeting its burden of proof, which
the court did not view as an inappropriate argument:
“[T]o the extent that your matter, then, is asking me to
take an affirmative action to take this matter away from
the jury, I will decline to do so. Whatever prejudice that I’m
being told that there may be is not sufficient to pull this—
this from them at this point.”
Defendant thereupon moved for a mistrial, and the trial
court ruled, “I interpreted … that as probably your logical
next step. … And I’m denying your motion.”
The jury convicted defendant of murder with a firearm, UUW-firearm, and FIP-firearm. As relevant to the
sentencing issue before us, the trial court imposed the firearm minimum sentence required by ORS 161.610(4) on the
FIP-firearm conviction instead of the murder conviction.
On appeal, defendant assigns error to the trial
court’s (1) denial of his mistrial motion and (2) imposition
of the firearm minimum sentence on the FIP-firearm count.
As to each issue, we conclude that defendant does not present a basis for reversal.
Both parties agree, rightly, that the prosecutor
misstated the law when he argued in rebuttal closing that
the presumption of innocence was “no more.” See State v.
Elliott, 234 Or 522, 527,
383 P2d 382 (1963) (“[A] defendant
is presumed to be innocent of the offense charged and every
necessary element thereof until … a jury returns a verdict of guilty[.]”). They disagree, however, as to whether that
misstatement is ground for reversal. Before reaching the
368 State v. Pouncey
merits, we first address the state’s contention that defendant did not adequately preserve this matter for review. We
conclude otherwise.
“To preserve error, a motion for a mistrial must be
timely.” State v. Walton, 311 Or 223, 248,
809 P2d 81 (1991)
(citation omitted). The purpose of that rule “is to allow the
court to take prompt curative action,” if the court believes
it is warranted, to “avert[ ] the need for a mistrial.” State v.
Veatch,
223 Or App 444, 454,
196 P3d 45 (2008) (citations
omitted). Thus, a mistrial motion that was not instantaneously made may nevertheless be timely, if made under circumstances that fulfill the purposes of preservation. State v.
Cox,
272 Or App 390, 405,
359 P3d 257 (2015) (citing Veatch,
223 Or App at 453-54).
Here, defendant immediately interjected with “a
matter for the court” when the prosecutor made the objectionable statements. Rather than allow defendant an immediate opportunity to elaborate on that “matter” out of the
jury’s earshot, the trial court instructed defendant to hold
off on his comments and the prosecutor to continue. Only
after the prosecutor had concluded his closing argument and
the court had addressed and dismissed the jury—matters
that covered only about five pages of the trial transcript—
did the court turn its attention to defendant’s “matter.”
The period of time between when the improper statements
were made and when defendant explained his “matter” and
moved for a mistrial is neither significant nor caused by any
delay on defendant’s part. Given that “a trial court generally possesses broad discretion to control the proceedings
before it[,]” State v. Rogers, 330 Or 282, 300,
4 P3d 1261
(2000) (citations omitted), defendant would understandably
not have felt at liberty to press the matter before the court
was ready to address it. Moreover, the trial court appeared
to understand that the “matter” concerned the prosecutor’s
comments on the presumption of innocence, which would
fulfill the purposes of preservation: The court let the jury
begin deliberations despite knowing that the “matter” still
needed attention, and it anticipated defendant’s “logical
next step” of moving for a mistrial—two signs that it understood the crux of the “matter” but did not think that it warranted any curative action. Under the circumstances here,
Cite as
303 Or App 365 (2020) 369
defendant should not be penalized on preservation grounds
for the trial court’s choice to respond to the situation as it
did.
Turning to the merits, we review the trial court’s
denial of defendant’s mistrial motion for an abuse of discretion, asking whether the prosecutor’s unremedied misstatement so affected the jury’s consideration as to deny defendant a fair trial. State v. Davis, 345 Or 551, 582-83,
201 P3d
185 (2008), cert den,
558 US 873 (2009). We conclude that
the trial court did not abuse its discretion in denying defendant’s motion.
In arguing otherwise, defendant primarily relies on
State v. Worth, 231 Or App 69,
218 P3d 166 (2009), rev den,
347 Or 718 (2010), in which the prosecutor repeatedly and
incorrectly told the jury during closing argument that the
presumption of innocence no longer applied or soon would no
longer apply.1 The trial court “compounded the prejudice by
overruling—in the presence of the jury—an objection to the
misstatements.” Id. at 78. We concluded that the “generic
instructions” that the court later gave—“that [the] defendant was presumed innocent until proven guilty beyond a
reasonable doubt and that the burden was on the state to so
prove”—were insufficient to correct the confusion caused by
the prosecutor’s misstatements. Id. at 79. Because the overall effect was to deny the defendant a fair trial, we held that
the trial court erroneously denied the defendant’s mistrial
motion. Id.
This case is distinguishable from Worth in several
respects. First, unlike in Worth, the prosecutor here did not
emphasize his improper comments on the presumption of
innocence. Second, the trial court did not compound the prejudice by overruling any defense objection in the presence of
the jury. Third, viewing the prosecutor’s statements in context rather than in a vacuum, see, e.g., State v. Purrier, 265
1
The improper statements included that the defendant “does not sit before
you presumed innocent”; “[b]ut for a few more minutes, [he] sits before you presumed innocent, until you shut that door and start deciding the facts of this case
and how the law applies to the facts of that case”; and “when you sit down and
take your initial vote, the presumption of innocence is over.” Worth, 231 Or App
at 72-73 (emphasis in original).
370 State v. Pouncey
Or App 618, 621,
336 P3d 574 (2014), the jury would have
understood the argument to be that the state had carried its
burden to prove defendant’s guilt. The trial court had thus
understood the prosecutor’s argument, and we have long
recognized that a trial court ruling on a mistrial motion “is
in the best position to assess the impact of the complained-of
incident and to select the means (if any) necessary to correct
any problem resulting” therefrom. State v. Wright,
323 Or 8,
12,
913 P2d 321 (1996) (citation omitted). Fourth, although
the jury was provided only with instructions similar to
the ones that we called “generic” in Worth, those “generic
instructions” were sufficient in this case, given the preceding reasons for why any prejudice from the prosecutor’s misstatements was limited. In light of the foregoing, defendant
was not deprived of a fair trial, and the trial court’s denial of
his mistrial motion did not constitute an abuse of discretion.
Next, we address defendant’s contention that the
trial court erred by imposing the mandatory firearm minimum sentence on his FIP-firearm conviction rather than
his murder conviction. Defendant reads existing case law
to require that approach to ORS 161.610(4). We reject that
argument, because the case law does not stand for the proposition that defendant posits.
ORS 161.610(4) provides, in pertinent part:
“The minimum terms of imprisonment for felonies having as an element the defendant’s use or threatened use of a
firearm in the commission of the crime shall be as follows:
“(a) … upon the first conviction for such felony, five
years, except that if the firearm is a machine gun, short-barreled rifle, short-barreled shotgun or is equipped with
a firearms silencer, the term of imprisonment shall be
10 years.”
(Emphasis added.)
Defendant relies on State v. Hardesty, 298 Or 616,
695 P2d 569 (1985), for the proposition that the sentencing
court must impose the firearm minimum sentence on the
first qualifying offense for which a defendant is sentenced
in a single case involving multiple firearm offenses—in
this case, that was the murder count. The narrow issue in
Cite as
303 Or App 365 (2020) 371
Hardesty, however, was whether the firearm minimum sentencing statute “allows multiple five-year minimum terms
of imprisonment when a single trial results in convictions
of more than one felony in which a firearm was used or
threatened to be used.”
298 Or at 618 (emphasis added).2
In answering that question in the negative, the Oregon
Supreme Court did not—as defendant posits—specify that
the statutory phrase “first conviction” indicates the first
conviction upon which a sentence is imposed in a single case
involving multiple firearm offenses. Nor has any subsequent
case cited Hardesty for such a proposition.
In sum, the trial court did not abuse its discretion
in denying defendant’s mistrial motion, because the prosecutor’s misstatement of the law did not deny defendant a fair
trial. We also reject defendant’s assignment of error on the
firearm-minimum-sentence issue, because his argument
misstates our case law regarding ORS 161.610(4).
Affirmed.
2
Hardesty focused on subsection (5)(a) of ORS 161.610 (1983), which was the
precursor to the current version of ORS 161.610(4)(a). See Or Laws 1985, ch 552,
§ 1.
