Davis v. Cain

                                      356

   Submitted March 13; reversed and remanded as to first claim, otherwise
                          affirmed May 20, 2020


                     LAMAR ALEX DAVIS,
                      Petitioner-Appellant,
                                v.
                           Brad CAIN,
                        Superintendent,
               Snake River Correctional Institution,
                     Defendant-Respondent.
                  Malheur County Circuit Court
                      16CV27407; A168254
                                   

     In this post-conviction proceeding, petitioner appeals a judgment denying
him post-conviction relief. Petitioner was charged and tried for first-degree rape,
based on his allegedly having sexual intercourse with a physically helpless person, J. Petitioner claims that his trial counsel was constitutionally inadequate
for failing to object to the prosecutor’s vouching in opening statement regarding
the state’s key witness, Shannon. The prosecutor preemptively addressed the
possibility that Shannon might change her story at trial, explaining to the jury
that what Shannon had told the police was true and that, if she lied at trial, it
was his job to try to get her to tell the truth. Shannon subsequently changed
her story somewhat, although not as much as the prosecutor had anticipated.
The jury found petitioner guilty, and he was convicted. Petitioner petitioned for
post-conviction relief, claiming inadequate assistance of trial counsel in failing
to object to the prosecutor’s vouching. The superintendent does not dispute that
the prosecutor vouched but argues that petitioner’s trial counsel’s lack of objection was strategically reasonable and that petitioner did not demonstrate prejudice. Held: The post-conviction court erred in denying post-conviction relief. The
statements made by the prosecutor constituted improper vouching. Under the
circumstances, it was not objectively reasonable for petitioner’s trial counsel not
to object to the vouching, so counsel rendered inadequate assistance. Given the
significance of Shannon’s credibility and how the case was tried, trial counsel’s
inadequate assistance could have tended to affect the outcome of the case.
    Reversed and remanded as to first claim; otherwise affirmed.



    Patricia A. Sullivan, Senior Judge.
   Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rolf C. Moan, Assistant Attorney
General, filed the brief for respondent.
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  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
  AOYAGI, J.
   Reversed and remanded as to first claim; otherwise
affirmed.
358                                              Davis v. Cain

        AOYAGI, J.
         In this post-conviction proceeding, petitioner asserts
that the post-conviction court erred in denying him relief
on his first claim for post-conviction relief, because his trial
counsel was constitutionally inadequate in failing to object
when the prosecutor engaged in vouching regarding the
state’s key witness during opening statement. In response,
the superintendent does not dispute that the prosecutor
engaged in vouching but argues that petitioner’s trial counsel’s lack of objection was strategically reasonable or that
petitioner did not demonstrate prejudice. As explained
below, we agree with petitioner and, accordingly, reverse
and remand on the first claim.
                            FACTS
         We are bound by the post-conviction court’s factual findings so long as they are supported by evidence in
the record. Ayer v. Coursey, 

, 

 (2012). “If the post-conviction court did not expressly
make factual findings, and there is evidence from which the
facts could be decided more than one way, we will presume
that the facts were decided in a manner consistent with the
court’s ultimate conclusion.” Ball v. Gladden, 

, 

 (1968) (internal quotation marks omitted).
         Petitioner was convicted of first-degree rape, ORS
163.375, based on the following evidence. On a summer
night, J celebrated a birthday with some friends, including Shannon and Spriggs. They eventually went to Spriggs’
apartment. Because Spriggs was moving out, there was
no furniture in the apartment, except a mattress and box
spring in the living room. Petitioner—who was an acquaintance of J’s and Shannon’s—arrived while the group was
talking. J and Shannon eventually fell asleep on the mattress. A friend named Jason arrived and woke up Shannon,
who went to the bathroom. When Shannon had been in the
bathroom for five to 10 minutes, Jason came to the door and
told her that J was having sex. Shannon came out and saw
petitioner on top of J, having sex with her. J was moaning.
Shannon doubted that J would have sex with petitioner
when sober, so she pulled on J’s arm to “see if she knew
what she was doing” but got no response. Shannon asked
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petitioner if J had said they could have sex, and petitioner
answered affirmatively (“uh-huh”). A few minutes later,
Shannon checked on J again and slapped her, but J still did
not say anything to Shannon. When Shannon checked on J
a third time, petitioner had left.
        The next morning, Shannon asked J if she remembered having sex with petitioner. J did not remember. J
obtained a sexual assault examination, and petitioner’s DNA
was found in J’s cervix and vagina. Officer Gilhuber interviewed Shannon by telephone within a few days of the incident.
         The only witnesses at petitioner’s trial were
Shannon, Gilhuber, J, and a nurse; petitioner did not testify.
The prosecutor and defense counsel both told the jury that
the key issue for the entire trial was Shannon’s credibility. J
did not remember having sex with petitioner, and the prosecutor expressly told the jury that her credibility was not
even at issue as a result. The nurse testified about the DNA
evidence. Shannon and Gilhuber testified generally consistently with the above description of the facts, but there was
at least one significant conflict in their testimony, relevant
to the issue of J’s physical helplessness.
         As to J’s physical helplessness, Gilhuber testified
that Shannon had told him in her 2011 interview that it
“appeared” that J “was asleep” during the sex. By contrast,
Shannon testified at trial that J was “[v]ery, very intoxicated,” but that her eyes were “a little bit open,” and that J
sometimes looked like that when she was awake but drunk.
Shannon insisted that she had “never told anybody that [J]
was sleeping,” that she “couldn’t honestly say” whether J “was
sleeping or not,” and that she had thought at the time that
J was awake. The prosecutor relied on Gilhuber’s testimony
and Shannon’s actions in pulling on J’s arm and slapping her
to repeatedly argue that J was “passed out” or “unconscious”
when petitioner had sex with her and that Shannon was now
changing her story to claim that J was awake. Meanwhile,
defense counsel argued that Shannon had never changed her
story and that it was Gilhuber who either misunderstood or
misreported what Shannon had said.
        The jury found petitioner guilty of first-degree rape,
based on J having been incapable of consent due to physical
360                                                 Davis v. Cain

helplessness. See ORS 163.375(1)(d) (“A person who has sexual intercourse with another person commits the crime of
rape in the first degree if … [t]he victim is incapable of
consent by reason of … physical helplessness.”). Petitioner
unsuccessfully appealed the resulting conviction.
         Petitioner subsequently filed a petition for post-conviction relief, alleging in the first claim for post-conviction
relief that his trial counsel was constitutionally inadequate
for failing to object to vouching statements made by the
prosecutor during opening statement. In his opening statement, the prosecutor had commented on the “great job” that
Gilhuber did interviewing witnesses and documenting what
they said. Without explanation, the prosecutor then raised
the possibility that Shannon might change her story at
trial. He told the jury that, if Shannon told “the truth” and
testified consistently with what she told Gilhuber, it would
be an easy conviction, but that, if she did not tell the truth
and changed her story, he (the prosecutor) would “not back
off” because that was his job.
         Because it goes to the heart of petitioner’s appeal,
we quote in its entirety the relevant portion of the prosecutor’s opening statement:
      “Brandae Shannon was one of those people that he
   talked to, and Brandae Shannon laid the whole thing out,
   okay? A couple of months pass—two and a half months and
   guess what? Things have changed in the meantime.
       “Why? I don’t know. I’m not sure it’s going to make much
   difference. You’re going to be searching and listening, probably to Brandae to find out why things have changed.
       “Now, she might tell you things have not changed, that
   I’ve been telling the truth about this from the get-go. Get
   somebody into Court, got to take somebody to grand—you
   know, we’ve got to take witnesses to Grand Jury. They testify under oath. It’s not a two-part system, and there is no
   defense attorney there and stuff—but they come, and they
   tell their story under oath. Now, if Brandae Shannon comes
   in here and tells you, you know what? I’ve been telling the
   truth all along about this case. I spoke to Officer Gilhuber.
   I told him the truth about what happened and what I told
   Officer Gilhuber is, in fact, what I’m going to testify to. If
   that happens, this case is over. You are going to have an
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   easy decision because what Brandae Shannon tells the
   officer is that the Defendant did exactly what he’s charged
   with.
      “I asked, I think maybe, I guess I asked all of you—
   when I was asking general questions—about whether you
   are going to be comfortable if there gets to be a little bit of
   conflict here, okay?
       “There may or may not be, okay, but Brandae Shannon
   assures us that she will tell the truth and does tell the truth,
   probably not going to be much conflict. If she doesn’t, I can
   tell you right now, do not expect me to back off. Do not expect
   me to just let her change her story and say, okay, well, whatever, we’ll just go home.”
(Emphasis added.)
         Later in his opening statement, the prosecutor
returned to the issue again, while describing who would testify and what the evidence would be:
       “In the end, it’s going to come down to Brandae
   Shannon, and she may not want to, like I told you, to tell
   you how this happened. Again, you may be curious about
   the motive, but does it really matter, does it really matter?
   Why she changed her statement? The question is, did she
   change her statement, and it may be like pulling teeth. I
   don’t know, but if we have to pull teeth, we are going to pull
   teeth. If she just tells you, this will go easy. I hope you don’t
   hold that against me because that’s what my job is and, in
   all honesty, I can’t imagine any of you would expect me to
   back down from it.”
(Emphases added.)
        In his petition for post-conviction relief, petitioner
claimed that his trial counsel provided constitutionally inadequate assistance when he did not object to the prosecutor’s
statements as impermissible vouching regarding the state’s
key witness, Shannon.1 In response, the superintendent
    1
      Petitioner asserts that his trial counsel provided both inadequate assistance under Article I, section 11, of the Oregon Constitution and ineffective
assistance under the Sixth and Fourteenth Amendments to the United States
Constitution. Because the state constitutional issue is dispositive, we do not
reach the federal constitutional issue. See Docken v. Myrick, 

,
263 n 1, 

 (2017). In any event, petitioner makes the same arguments
under both constitutions.
362                                                                  Davis v. Cain

submitted a declaration from petitioner’s trial counsel. Trial
counsel attested that he had no “independent recollection of
the prosecutor’s opening statement.” However, he described
his “standard practice” as being “to pay close attention to
the argument the prosecution makes during opening statement and closing and to how the jury is responding to the
prosecution’s arguments.” Then, if he “believe[s] a potentially improper argument made by the prosecutor is having
an impact on the jury that could be negative to my client, I
object.” Trial counsel concluded, “Based on that standard
practice, I presume that I did not believe the argument made
by the prosecutor during opening in this case was having an
impact on the jury.”2
         The post-conviction court denied relief. In its written judgment, the court concluded that it was not improper
or objectionable for the prosecutor to state that a witness’s
trial testimony “may differ from the initial police report,”
that defense counsel’s decision not to object during the prosecutor’s opening statement was “tactically sound,” that petitioner had “not shown prejudice,” and that “the jury was
properly instructed that opening remarks are not evidence.”3
Petitioner appeals.
                                    ANALYSIS
        To obtain post-conviction relief, a petitioner must
establish a substantial violation of his constitutional rights.
ORS 138.530(1)(a). One of those constitutional rights is the
    2
       In full, as relevant to that claim for relief, petitioner’s trial counsel attested:
     “Mr. Davis asserts that my decision not to object to comments made by the
     prosecutor during opening statement constituted ineffective assistance of
     counsel. I do not have an independent recollection of the prosecutor’s opening
     statement. I do know that my standard practice is to pay close attention to
     the argument the prosecution makes during opening statement and closing
     and to how the jury is responding to the prosecution’s arguments. If I believe
     a potentially improper argument made by the prosecutor is having an impact
     on the jury that could be negative to my client, I object. Based on that standard practice, I presume that I did not believe the argument made by the
     prosecutor during opening in this case as having an impact on the jury.”
     3
       The post-conviction court also concluded that the prosecutor’s comment
about Gilhuber doing a “great job” interviewing witness and documenting what
they said did not constitute vouching for Gilhuber, “as it is not a comment on credibility.” We agree with the post-conviction court on that point and reject petitioner’s
argument on appeal with respect to that specific portion of the prosecutor’s opening statement.
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right to adequate assistance of counsel under Article I, section 11, of the Oregon Constitution. Krummacher v. Gierloff,

, 

 (1981).
          Evaluating whether a lawyer rendered inadequate
assistance is a two-step inquiry. Montez v. Czerniak, 

, 

, adh’d to as modified on recons, 

, 

 (2014). First, we determine whether
petitioner demonstrated by a preponderance of the evidence
that his lawyer failed to exercise reasonable professional
skill and judgment. 

 “In doing so, we do not inquire into
counsel’s subjective state of mind; instead, we inquire into
the objective reasonableness of counsel’s performance.”
Id. at 8. Second, if petitioner met his burden at the first step,
we determine whether counsel’s deficient performance had
a tendency to affect the result of the trial. Id. at 7. That is,
we determine whether it “could have tended to affect the outcome of the case.” Green v. Franke, 

, 

 (2015) (internal quotation marks omitted; emphasis in
original). “Whether a petitioner has demonstrated prejudice
is a question of law that, in turn, may depend on the post-conviction court’s findings of fact.” Wyatt v. Czerniak, 

, 

 (2008). We review the post-conviction court’s determinations for legal error. Montez,
355 Or at 8.
        Here, the first question is whether the prosecutor’s
statements about Shannon constituted vouching. Petitioner
argues, and the superintendent does not dispute, that they
did. We agree.
         “Vouching” refers to the expression of one’s personal opinion about the credibility of a witness. See State v.
Chandler, 

, 

 (2016) (discussing history of vouching prohibition, which is a “judicially
created rule”). Because credibility determinations are the
exclusive province of the jury, witnesses are categorically
prohibited from expressing a view on whether another witness is “telling the truth.” State v. Middleton, 

, 

 (1983); accord State v. Black, 

, 

 (2019). In addition to the prohibition
against witness vouching, “lawyers are similarly prohibited from giving their personal opinions on the credibility
364                                                Davis v. Cain

of witnesses.” State v. Sperou, 

, 

(2019).
         In that vein, prosecutors have substantial leeway
to argue about the evidence and to try to persuade jurors to
their view of the evidence, but they may not interject their
own personal views of a witness’s credibility. 

; see
also Heroff v. Coursey, 

, 

(2016), rev den, 

 (2017) (“[I]t is permissible for a
prosecutor to argue that the jury should infer that a witness
is credible based on the evidence in the record, so long as
the prosecutor does not vouch for the witness by interjecting his or her personal opinion of the witness’s credibility.”).
Prosecutorial vouching is especially problematic when it not
only reveals the prosecutor’s personal opinion of a witness’s
credibility but implies that that opinion is based on something more than just the prosecutor’s assessment of the trial
evidence:
   “It is improper for counsel to interject his personal
   appraisal of the witnesses’ credibility in a way which would
   suggest to the jury that the appraisal is based upon counsel’s own knowledge of facts not introduced into evidence.
   … The rule is sometimes stated more broadly, making
   improper any comment by counsel upon the credibility of
   his witnesses.”
State v. Parker, 

, 

 (1963);
see also Sperou, 

 (“The rationale for the
[anti-vouching] principle is that counsel’s credibility opinions are not evidence and are sometimes based on facts not
in evidence—thus, they tend to distract the jury from its
duty to base its verdict on the evidence at trial.”); United
States v. Edwards, 

 (9th Cir 1995) (the rule
against vouching was “designed to prevent prosecutors from
taking advantage of the natural tendency of jury members
to believe in the honesty of lawyers in general, and government attorneys in particular”).
         In this case, the prosecutor crossed the line into
vouching. The thrust of his comments in opening statement was that he knew that Shannon had told the truth
to Gilhuber before trial and that, if she testified otherwise
at trial, she would be lying. Moreover, if she changed her
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story on the stand, it was his “job” to try to get her to tell
the truth, even if it meant “pulling teeth.” Cf. United States
v. Smith, 962 F2d 923, 928 (9th Cir 1992) (prosecutor made
numerous improper vouching statements, including invoking the role of the government with statements such as, “And
the government’s job is to find the truth, to ferret through
all this confusion, to ferret through all the smoke screens
and lead you to the truth.”). The prosecutor did not mention
there being any evidence that would persuade the jury that
Shannon’s original statement was the most credible. To the
contrary, he indicated that the jury might never know why
she changed her story, if she did, but that it did not matter
really, because all that mattered was that Shannon’s original statements to Gilhuber and the grand jury were the
truth. To put it simply, the prosecutor’s statements about
Shannon’s credibility were in the nature of “take my word
for it,” not “let me show you.”
          Having concluded that the prosecutor engaged in
vouching, the next question is whether not objecting was a
reasonable response under the circumstances, or whether
petitioner’s trial counsel failed to exercise reasonable professional skill and judgment. The post-conviction court found
that trial counsel made a “decision” not to object that was
“tactically sound.” No one challenges the court’s finding
that trial counsel made a conscious decision not to object,
so it is binding. See Lotches v. Premo, 

,

 (2013) (relying on the post-conviction court’s
“unchallenged factual findings” in reviewing denial of post-conviction relief).4
         When trial counsel makes a “conscious choice” not
to do something, “we evaluate the reasonableness of that
conscious decision under the circumstances that confronted
counsel at the time of the decision.” Sullivan v. Popoff,

, 

 (2015); see also Grant
v. Coursey, 

, 

 (2016)
(applying reasonableness standard to trial counsel’s strategic decisions, including his conscious choice not to object to

    4
      We express no opinion on whether trial counsel’s declaration was sufficient
to support the post-conviction court’s finding that trial counsel made a conscious
“tactical choice” not to object to the prosecutor’s vouching.
366                                              Davis v. Cain

certain statements by the prosecutor in closing). Here, the
superintendent argues that not objecting was a reasonable
choice because trial counsel may have viewed it as beneficial to petitioner and detrimental to the state for the state
to be suggesting that its own key witness might lie on the
stand.

          The logic of the superintendent’s argument does not
withstand scrutiny. In his opening statement, the prosecutor indicated that he did not know whether Shannon would
change her story. No matter what happened at that point,
there was no benefit to petitioner in letting the prosecutor vouch for Shannon’s original statements to Gilhuber.
If Shannon changed her story on the stand, that certainly
could benefit petitioner, in that it would likely damage her
credibility by requiring the jury to discern when she was
telling the truth—and when she was not. But, in that scenario, petitioner would not be better off because the prosecutor had foreseen that possibility and preemptively vouched
for Shannon’s original statements to Gilhuber (and preemptively discredited her trial testimony). Conversely, if
Shannon did not change her story, the prosecutor’s vouching statements would only add to Shannon’s credibility,
especially given the prosecutor’s allusion to a possible personal reason that she might want to change her story at
trial. In the context of the prosecutor’s vouching statements,
Shannon not changing her story would only bolster her credibility by suggesting that she could not bring herself to lie.

         Thus, no matter what happened when Shannon
testified, allowing the prosecutor to preemptively vouch for
the truth of Shannon’s statements to Gilhuber (and vouch
against any contradictory statements that she might make
at trial) offered no strategic benefit to petitioner. We are
therefore unpersuaded by the superintendent’s argument
that it was objectively reasonable for petitioner’s trial counsel not to object to the vouching because it could benefit petitioner. See Berg v. Nooth, 

, 

(2013) (holding that trial counsel performed deficiently in
failing to object to vouching by a witness and by the prosecutor, where “[t]he record reveal[ed] no way in which petitioner’s defense could have benefitted from” the vouching).
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         There is also the possibility that petitioner’s trial
counsel recognized that the prosecutor was vouching
regarding Shannon but decided not to object simply because
the jury was not visibly affected by the vouching. It appears
that the post-conviction court may have relied on that premise in ruling as it did. The superintendent does not defend
such a strategy as objectively reasonable, and we conclude
that it is not. See Montez, 355 Or at 8 (our inquiry is into
the “objective reasonableness of counsel’s performance”). It
is not objectively reasonable to not object to prosecutorial
vouching based solely on the lack of a visible reaction by the
jurors, at least where, as here, the prosecutor commented
directly on the credibility of the undisputed key witness and
did it again in the absence of an objection the first time.5 See
Krummacher, 

 (“[I]f counsel exercises reasonable professional skill and judgment, a reviewing court
will not second-guess the lawyer in the name of the constitution, but neither will the court ignore decisions made in the
conduct of the defense which reflect an absence or suspension of professional skill and judgment.”).
         Petitioner’s trial counsel therefore failed to exercise
reasonable professional skill and judgment when he failed
to object to the prosecutor’s vouching statements.
         That brings us to the final question, prejudice, which
requires us to determine whether counsel’s deficient performance could have tended to affect the result of the trial.
Green, 

. In concluding that petitioner failed
to establish prejudice, the post-conviction court appears to
have relied on the trial court’s general instructions at the
beginning of trial, specifically the instruction that “opening
statements and closing arguments are intended to assist
you in understanding the evidence and applying the law to
that evidence; however, those statements and arguments
are not evidence.”
     5
       We recognize that good reasons exist for lawyers not to object unnecessarily or excessively during opening and closing statements. We also recognize that
lawyers often consider how the jury seems to be reacting in deciding whether to
object to something that is technically not allowed but probably harmless. There
is nothing wrong with taking such considerations into account, but it does not follow that a jury’s lack of visible reaction universally excuses any lack of objection
by defense counsel.
368                                              Davis v. Cain

          We begin our discussion of prejudice by recognizing
that vouching by witnesses is so inherently problematic that
the Supreme Court has advised trial judges to summarily
cut off a vouching question to a witness, sua sponte, “before
a jury is contaminated by it.” State v. Milbradt, 

, 

 (1988). Relatedly, at least with respect to
“true” vouching, a trial court may commit plain error if it
fails to sua sponte address vouching by a witness. See State
v. Corkill, 

, 

, rev den, 

 (2014); State v. Higgins, 

,

 (2013), rev den, 

 (2014) (trial court
plainly erred by failing to strike sua sponte a mother’s testimony that she “knew for sure” that her daughter was not
lying about a rape); State v. Lowell, 

, 

 (2012) (trial court plainly erred by failing
to strike sua sponte a police detective’s testimony that he
“didn’t think that [the defendant] was being very honest and
upfront”). In Sperou, 

, the Supreme Court reiterated Oregon’s strong rule against vouching, noting that,
“[i]n general, witness vouching in Oregon is considered prejudicial, so much so in fact that it sometimes requires intervention by the trial court even when parties fail to object to
it.”
        To date, we have not reversed a conviction on direct
appeal on the basis that a trial court plainly erred in failing,
sua sponte, to address vouching by a prosecutor. However,
that does not mean that vouching by prosecutors is necessarily less problematic than vouching by witnesses, but
only that the law is better established regarding vouching
by witnesses (as relevant to plain error review) and that we
decide each case on its own facts. E.g., State v. Boauod, 

, 

 (2020) (holding that the trial
court did not plainly err when it did not declare a mistrial,
sua sponte, or issue a corrective instruction, sua sponte, after
the prosecutor engaged in alleged vouching).
         In addition to making clear that it takes vouching
very seriously, the Supreme Court has indicated that a jury
instruction given to address vouching may need to be quite
specific to ensure a fair trial. In Milbradt, a psychologist
improperly commented on the credibility of two sex abuse
complainants during her trial testimony. 

.
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The trial court overruled defense counsel’s objection and
allowed the testimony. Id. at 627. After a break, however, the
court referred to the psychologist’s earlier testimony about
“the capacity of either one of these victims of manufacturing
a story” and instructed the jury, in part:
   “You people are the ones who have to make the determination of whether or not either one of these victims have
   fabricated a story with respect to defendant in this case.
   And you, and you alone, must make that determination.
   The opinion of an expert, or anyone else cannot be substituted for that obligation of the jurors. Do you understand
   what I just told you? In other words, you are the ultimate
   judges of the ultimate facts, very basically, the credibility
   of the witnesses when they take the stand.”
Id. at 627-28.
          The Supreme Court concluded that the trial court
erred in not sustaining the objection. Id. at 630. Further,
“[t]he admission of the testimony constituted prejudicial error
and was not ‘cured’ by the instruction.” Id. “Even though the
trial judge attempted to convey to the jurors that they would
be the ultimate judges of the credibility of the two young
women, he did not instruct the jury to disregard the lengthy
testimony by [the psychologist].” Id. at 628. “This testimony
was critical to the state’s case” in a case that was a “typical
‘credibility contest.’ ” Id. The court left open whether there
might have been some form of instruction that the trial court
could have given to cure the error, short of declaring a mistrial, but in any event concluded that the instruction that it
gave was insufficient because it was not specific enough, in
that the trial court “failed to tell the jury to disregard totally
the testimony of [the psychologist].” Id. at 630.
         Other decisions also have suggested that a specific
instruction is key to countering improper vouching. For
example, in State v. Doolin, 

, 

(1968), the prosecutor made a vouching statement that the
defense counsel interrupted mid-sentence with a strong
objection, moving for a mistrial on the grounds that the prosecutor’s statement was “an absolute false statement of the
law.” The trial court denied the motion but immediately and
specifically instructed the jury to disregard the prosecutor’s
370                                                               Davis v. Cain

statement. 

. The Supreme Court concluded that the
trial court did not err in denying a mistrial in those circumstances. 

. In State v. Wasyluk, 

, 

 (2016), the prosecutor repeatedly said “I
think” and “I believe” in making arguments, the defendant
objected each time on vouching grounds, and the trial court
sustained the objections and instructed the jury on the issue.
We affirmed the denial of a mistrial, “writ[ing] primarily
to point out the trial court’s careful and attentive response
to defendant’s concern that the comments could deny him
a fair trial.” 

 That response included the trial court confirming the validity of the defense objections, sustaining the
objections, reminding the jury that the lawyers’ arguments
were not evidence, advising the prosecutor to say “I submit
or something like that as opposed to I believe or I think,”
and giving the jury a “very specific” and direct instruction
to disregard the prosecutor’s indications of “thoughts” and
“beliefs” and not consider them “in any way, shape, or form.”

.6

         Also instructive is State v. Worth, 

,

 (2009), rev den, 

 (2010), which did
not involve vouching but did address the adequacy of a jury
instruction to ameliorate prosecutorial misstatements. In
Worth, we concluded that the defendant was denied a fair
trial when the prosecutor made three misstatements about
the presumption of innocence, and the trial court corrected
the prosecutor the first time but overruled defense counsel’s
next two objections. Id. at 78-79. Of particular relevance
here, we concluded that the trial court’s subsequent giving
of a “generic instruction” on the presumption of innocence
was not enough to prevent the trial court’s error from denying the defendant a fair trial, because the generic instruction did not address the prosecutor’s specific misstatements
about the presumption (which pertained to the presumption’s duration) and therefore did not adequately resolve

     6
       Similarly but in a slightly different posture, in State v. Fulmer, we held that
the trial court did not err in admitting certain evidence in a bench trial, even
if it contained improper vouching statements, where, as soon as the defendant
objected, the trial court “explicitly stated” that it would accept the evidence only
for one specific purpose, “not as a comment on defendant’s credibility.” 

, 

 (2009).
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the potential confusion that those misstatements created.
Id. at 79.7
         In this case, if petitioner’s trial counsel had objected
to the prosecutor’s vouching statements regarding Shannon,
the trial court might well have been able to give a specific
instruction that would have ensured petitioner a fair trial.
That is, petitioner was not necessarily entitled to a mistrial. The general instruction that the trial court gave at
the beginning of trial, however, was too generic under the
circumstances to reliably neutralize the effect of the specific vouching in which the prosecutor engaged. If a general instruction at the beginning of trial that opening and
closing statements are “not evidence” automatically inoculated the prosecution from the consequences of vouching, it
would effectively give prosecutors carte blanche to engage in
vouching.
         That is not to say that a criminal defendant necessarily will have been denied a fair trial in any case in which
vouching occurs and a specific instruction is not given. We
do not foreclose the possibility of a circumstance in which
vouching occurs but is so mild or passing that a well-stated
general instruction would be sufficient to ensure a fair trial,
or in which vouching occurs but is successfully addressed
by strong and unambiguous general instructions. Cf. Grant,

 (although prosecutor misstated the
evidence during closing argument, the petitioner’s trial
counsel was not deficient for failing to address it, where the
jury received multiple instructions before and after closing to the effect that it needed to pay close attention to the
evidence and decide the facts itself, regardless of how the
lawyers described the evidence). There is also the possibility
that the record in a particular case may affirmatively show
that the vouching ultimately did not prejudice the petitioner,

     7
       Although Milbradt and Worth were direct appeals, “there appears to be
little distinction between an assessment whether a trial court error was ‘prejudicial’ to a probationer and an assessment of ‘harmlessness’ in an appeal from
a judgment of conviction.” State v. Dowty, 

, 

(2019). Here, if a general instruction that opening and closing statements are
“not evidence” rendered the prosecutor’s vouching statements harmless, it would
seem to also render them nonprejudicial. Conversely, if they were not harmless despite the instruction, they would also likely be prejudicial despite the
instruction.
372                                                              Davis v. Cain

regardless of the quality of the instructions. E.g., Heroff, 

 (a witness’s vouching statement did not prejudice the petitioner, where it related solely to a crime of which
the petitioner was ultimately acquitted by the jury).
         Here, however, the prosecutor vouched for the undisputed key witness at trial, in a case in which the victim
herself had almost no memory of the night, and no other eyewitnesses testified. The prosecutor’s vouching statements
were clear and deliberate, not mild or passing.8 Moreover,
the statements not only revealed the prosecutor’s personal
opinion as to what happened, but they implied that he actually knew the truth, beyond just having a particular view of
the evidence that the jury would hear, and that his job as a
prosecutor was to get Shannon to tell that truth if she tried
to lie. On this record, the general beginning-of-trial instruction that opening and closing statements are “not evidence”
did not adequately advise the jury that it could not consider
at all the prosecutor’s personal opinion that Shannon had
told the truth in her police interview.9
         The prosecutor’s vouching statements went to the
heart of the state’s case—the credibility of the key witness,
Shannon. At trial, Shannon apparently did not change her
story as much as the prosecutor anticipated that she might (or
so he told the jury), but she did directly contradict Gilhuber’s
claim that Shannon had told him in her 2011 interview that
J had “appeared” to be “asleep” when petitioner was having sex with her. Shannon expressly denied ever having
told Gilhuber or anyone else that J “was sleeping.” Shannon

    8
       We do not mean to suggest that the prosecutor acted deliberately in the
sense of intending to act improperly. We express no opinion on that issue and cast
no aspersions. Our concern is only with the nature of the statements that were
made and their potential effect on the jury in terms of petitioner receiving a fair
trial.
    9
       In concluding that petitioner did not establish prejudice, the post-conviction
court appears to have relied solely on the trial court’s instruction that opening and closing statements are “not evidence.” The superintendent also points
to another beginning-of-trial instruction, in which the trial court told the jury
that it was their “sole responsibility to make decisions about the facts of this
case” and that they “must evaluate the evidence to determine how reliable or how
believable that evidence is.” The superintendent does not develop his argument
about that instruction, beyond citing it, and it does not affect our conclusion. Like
the other instruction, if not more so, it failed to address specifically enough the
improper prosecutorial vouching.
Cite as 

 (2020)                                                 373

testified that J was “[v]ery, very intoxicated” but that J’s
eyes were “a little bit open,” that she “couldn’t honestly say”
whether J “was sleeping or not,” and that at the time she
thought J was awake. Whether J was awake could well have
been significant to the jury, in terms of whether the state
had proved beyond a reasonable doubt that J was “physically helpless” when petitioner sexually penetrated her—the
basis for the first-degree rape charge—where the state had
argued throughout petitioner’s trial that J was physically
helpless because she was “asleep,” “unconscious,” or “passed
out” at the time.10 Shannon’s credibility was therefore a
significant issue at trial; indeed, both the prosecutor and
defense counsel told the jury in their opening statements
that it would be the issue at trial.

         Finally, we note that this was a very short trial—
the opening statements were given on a Wednesday afternoon, and the last witness testified first thing on Thursday
morning—and nothing else that happened during trial ameliorated the prosecutor’s improper vouching in opening. In
closing argument, the prosecutor focused more on the trial
evidence than he had in opening. However, he continued to
make statements about Shannon’s credibility in line with
his earlier statements and certainly did nothing to disavow
his earlier vouching, which, again, implied that he knew the
truth, regardless of Shannon’s testimony at trial.11

    10
        Throughout petitioner’s 2011 trial, the state argued and sought to prove
that J was physically helpless because she was “asleep,” “unconscious,” or “passed
out.” It also pushed back hard against evidence that J was “awake,” albeit drunk,
possibly in part because Shannon testified that J had a history of having sex
while drunk and did not always remember it. At the close of evidence, the trial
court instructed the jury that “[p]hysically helpless means a person is unconscious or for any other reason is physically unable to communicate unwillingness
to an act.” Having reviewed the entire transcript, we do not doubt that whether
the jury believed Shannon’s testimony that J was “awake” could have had a tendency to affect the outcome of the case.
    11
        For example, the prosecutor said in closing argument that Shannon
“wasn’t quite as difficult to deal with as [he] expected” but that, “[c]ontrary to
her claim, she hasn’t always told the same story about this, she’s changed her
story to save face for whatever particular reason,” but “[r]eally who cares what
the reason is?” The prosecutor then pointed to the difference between Gilhuber’s
and Shannon’s testimony as to whether Shannon thought J was asleep, emphasizing that Shannon had “volunteered” her testimony on that point and that he
“didn’t ask her about [it] … [f]rankly because I was afraid she was going to lie
about it.”
374                                             Davis v. Cain

         On the whole, we conclude that trial counsel’s failure to object to the prosecutor’s vouching in opening statement could have tended to affect the outcome of the trial.
See Green, 

 (stating prejudice standard, and
further stating that, “where the effect of inadequate assistance of counsel on the outcome of a jury trial is at issue, it
is inappropriate to use a ‘probability’ standard for assessing
prejudice. Instead, because many different factors can affect
the outcome of a jury trial, in that setting, the tendency
to affect the outcome standard demands more than mere
possibility, but less than probability.”). It follows that the
post-conviction court erred in denying relief to petitioner on
his first claim for post-conviction relief. We therefore and
reverse and remand for the court to grant relief on the first
claim.
        Reversed and remanded as to first claim; otherwise
affirmed.