442
Argued and submitted September 30, reversed and remanded November 4, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
SHERRI LYNN MOREHEAD,
Defendant-Appellant.
Washington County Circuit Court
18CR34758; A170012
477 P3d 462
Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894(2)(a). On appeal, defendant assigns error to the trial
court’s failure either to sustain defendant’s objection to the state’s rebuttal closing argument, which defendant contends referred to facts not in evidence, or to
grant a mistrial based on the state’s rebuttal argument. Held: The state’s rebuttal argument impermissibly referred to a material fact not in evidence, and the
trial court abused its discretion when it overruled defendant’s objection to that
argument. There is more than a little likelihood that the impermissible reference affected the jury’s verdict, and, accordingly, the trial court’s error was not
harmless.
Reversed and remanded.
Theodore E. Sims, Judge.
Mark Kimbrell, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Patricia Rincon, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
Beth Andrews, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Hadlock, Judge pro tempore.
HADLOCK, J. pro tempore.
Reversed and remanded.
Cite as 307 Or App 442 (2020) 443
HADLOCK, J. pro tempore
Defendant appeals a judgment of conviction for
unlawful possession of methamphetamine. In two assignments of error, she challenges the trial court’s failure either
to sustain defendant’s objection to the state’s rebuttal closing argument, which defendant contends referred to facts
not in evidence, or to grant a mistrial based on the state’s
rebuttal argument. As explained below, we agree with
defendant that the state’s rebuttal argument impermissibly referred to facts not in evidence and that the trial court
abused its discretion when it overruled defendant’s objection
to that argument. Because we also conclude that the error
was not harmless, we reverse and remand. Given that disposition, and because defendant requests the same relief—
reversal and remand—in association with both of her claims
of error, we need not separately consider whether the trial
court erred in denying defendant’s motion for a mistrial. See
State v. Brunnemer, 287 Or App 182, 184, 189-90,
401 P3d
1226 (2017) (implicitly taking that approach in analogous
circumstances).
The facts related to the trial court’s rulings are procedural and, for purposes of our analysis, undisputed. We set
out additional evidence as it was presented at trial, because
that context informs our ultimate ruling on whether the
trial court’s error in overruling defendant’s objection to the
state’s rebuttal closing argument was harmless. See State
v. Davis, 336 Or 19, 33,
77 P3d 1111 (2003) (explaining that
the harmless-error analysis must consider “[t]he context of
the legal error” in determining “whether there was little
likelihood that the error affected the verdict”).
Two sheriff’s deputies encountered defendant at
a bus stop, saw that she had a duffle bag with her, and
obtained her consent to search that bag. The search revealed,
among other things, a cigarette pack that contained three
small baggies that held methamphetamine. Defendant was
charged with unlawfully and knowingly possessing a usable
amount of methamphetamine.
In pretrial motions, the parties discussed the state’s
plan to introduce evidence about why the deputies had initiated contact with defendant. Specifically, the prosecutor
444 State v. Morehead
wished to introduce evidence of a report that a bus driver
had made about activity at the bus stop. According to the
prosecutor, “an unknown civilian witness” had told the bus
driver that a person “was smoking methamphetamine at a
bus stop, openly, middle of the day, smoking meth at the bus
stop.” The bus driver then saw a person (later identified as
defendant) “smoking at the bus stop” and the driver called
dispatch, which led to the deputies approaching defendant.
Defendant argued that the deputies should not be
permitted to testify as to the substance of the call that the
bus driver had made, particularly when it became clear that
the state was not going to call the bus driver as a witness.
Defendant suggested that “all the officers need to do is say
they were responding to a 911 call and so they went to the
bus stop.” After some discussion, the court ruled that the
deputies could testify only that they had received “a 911 call
that’s suspicion of drug activity” at the bus stop, involving a
person with the description they had been given.
At trial, the two deputies testified in accordance
with the court’s ruling. Deputy Lewis testified that he had
responded to a call about “suspected drug activity at a bus
stop” involving a woman wearing a pink shirt who was “sitting at the bus stop [and] appeared to be smoking.” Deputy
O’Brien similarly testified that he and Lewis were responding to a report of “possible drug activity.”
The deputies also testified about what happened
after they approached defendant at the bus stop. Lewis
asked defendant if she had been smoking, and she indicated that she had been smoking “tiny cigarettes.” Lewis
told defendant that she was not allowed to smoke at a bus
stop, and he asked if she had been using methamphetamine.
Defendant responded that she had not used methamphetamine that day, although she had in the past. According to
Lewis, defendant was cooperative, although she was fidgety
throughout the encounter and “[k]ind of couldn’t hold still.”
Defendant had a duffle bag with her and, in response to a
question from Lewis, she said that all of the items in the bag
were hers.
O’Brien asked defendant for consent to search her
bag, which she gave. At one point, Lewis asked defendant if
Cite as 307 Or App 442 (2020) 445
O’Brien was going to find anything illegal in the bag, and,
according to Lewis, defendant said that a “meth pipe” was
inside. O’Brien’s search of the bag revealed a used glass
methamphetamine pipe and a cigarette pack that, itself,
held three small plastic bags containing methamphetamine.
Lewis testified that defendant also had a butane lighter of a
type commonly used to melt methamphetamine for smoking
in a pipe, but he could not recall whether that was in the bag
or on defendant’s person.
Defendant told Lewis that the methamphetamine
was not hers. She said that she had found the cigarette
pack, picked it up, and did not want to throw it away. Lewis
arrested defendant for possession of methamphetamine.
The substance in the baggies from defendant’s duffel bag
later tested positive for methamphetamine.
Defendant testified on her own behalf. She acknowledged having been at the bus stop and testified that she had
been smoking a cigarette. When she arrived at the bus stop
that morning, defendant said, she found a bag of food and
juice in unopened packages, as well as cigarettes. Defendant
put the bag, including the cigarettes, inside her duffle bag.
Defendant testified that the deputies were “very nice
and pleasant”; nonetheless, she was not comfortable with
their questions. She consented to the deputies searching
her duffle bag because she “had nothing to hide.” Defendant
acknowledged having told the deputies that a pipe was
in her bag (she had seen the pipe inside the bag with the
food and cigarettes she found), but she did not recall having called it a meth pipe. Defendant testified that she had
not known that methamphetamine was inside the cigarette
pack, which she had not looked inside because she had her
own cigarettes. Defendant also testified that she had not
used methamphetamine since she tried it in 2001, and she
explained that she used the butane lighter for lighting cigarettes because “it doesn’t blow out all fast like a regular
lighter would.”
In closing argument, the prosecutor emphasized
that the real question for the jury was whether defendant
knew that she possessed methamphetamine. The prosecutor urged the jurors not to “suspend disbelief” or to “ignore
446 State v. Morehead
the paraphernalia” that defendant had “and how she was
acting and what she told the deputies.” In her closing argument, defense counsel emphasized that the question for
the jury was not whether defendant had made a mistake
in keeping the methamphetamine pipe; rather, the question was whether the state had proved beyond a reasonable
doubt that defendant knew about the methamphetamine in
the cigarette pack. In arguing against the persuasiveness of
the state’s evidence, defense counsel suggested that the deputies had not done a thorough investigation and that they
had acted on assumptions, including when they went to the
bus stop:
“There is an assumption that drug-related activities happening at the bus stop, smoking-related activity was happening at the bus stop probably because [defendant] was
homeless, and somebody called it in, as what usually happens with homeless people in places they’re not supposed
to be.”
In rebuttal, the prosecutor responded to defense
counsel’s assertion about “assumptions” and, in doing so,
made the statements that are the subject of this appeal:
“[PROSECUTOR]: But sit back for just a second, what
assumptions were wrong? Police officers responded to a
report, it was stated. The report was, ‘Someone was smoking meth at the bus stop’—
“[DEFENSE COUNSEL]: Objection, Your Honor. Facts
not in evidence.
“[PROSECUTOR]: That is in evidence.
“[DEFENSE COUNSEL]: That was not.
“THE COURT: Suspicious. It’s argument. It’s overruled. Go ahead.
“[PROSECUTOR]: Okay. That can’t be offered for the
truth of the matter asserted. You can’t know that that’s
what was seen, what was happening, we don’t have that
person. There’s no such (indiscernible).
“[DEFENSE COUNSEL]: Your Honor, I’d ask for a
limiting instruction then.
“THE COURT: We’ll deal with that. Go ahead,
[prosecutor].”
Cite as 307 Or App 442 (2020) 447
(Emphasis added.) The prosecutor then urged the jury to
find that defendant knew that she was in possession of
methamphetamine.
After the jury started deliberating, defendant
requested a mistrial based on the prosecutor’s reference, in
rebuttal, to somebody having reported that a person was
smoking methamphetamine at the bus stop. Defense counsel
argued that no such testimony had been given. In response,
the prosecutor argued that defendant had suggested that
somebody had been “essentially making assumptions about
her, picking on her, that they were calling someone in as a
homeless person”; he argued that the state was entitled to
counter that by showing “that no one was picking on her”
and that the deputies went to the bus stop because they
were responding to a call. The prosecutor also argued that
it was “fair in argument to … consolidate” the evidence
about “illicit drug activity” and the deputies’ questions to
defendant about whether she had been smoking methamphetamine. He contended that he permissibly “consolidate[d]
those two things together into what we all know what was
meant.”
In response, defense counsel agreed that the prosecutor could counter her “assumptions” argument. However,
she argued, the prosecutor could not do so by presenting
facts not in evidence—facts that had been excluded from
evidence as a result of defendant’s pretrial motions.
The court denied the mistrial motion, stating that
the prosecutor had essentially “issued his own curative
instruction telling them that they can’t use it for the truth
of the matter asserted.” The court suggested that it would
give its own limiting instruction if the defense wanted one.
At that point, however, defense counsel expressed concern
that such an instruction would simply highlight the issue
for the jury. The court agreed, and defense counsel declined
to have a limiting instruction given, asserting that the issue
“needed to be cured before [the prosecutor] spoke.” The jury
found defendant guilty and the court entered a judgment of
conviction, imposing a probationary sentence.
On appeal, the parties generally reiterate the arguments they made below. In particular, defendant argues that
448 State v. Morehead
the trial court abused its discretion when it overruled her
objection to the prosecutor having referred, in rebuttal argument, to facts not in evidence. Indeed, defendant appears to
suggest that a trial court always abuses its discretion if it
“allow[s an] argument to stand” that refers to facts not in
evidence. Defendant also argues that the error was harmful
because the central issue in the case was whether defendant
knew about the methamphetamine in her duffle bag, and
information that she had been seen smoking methamphetamine was compelling evidence on that point. Defendant
argues for similar reasons that the trial court abused its
discretion when it denied her mistrial motion. She seeks the
same remedy for both claimed errors: reversal and remand
for a new trial.
In response, the state asserts that the prosecutor’s
rebuttal argument did not stray far from the facts in evidence, contending that “the challenged portion of the prosecutor’s statement amounts to only a single word—‘meth.’ ”
The state points out that deputies had been permitted to
testify that they went to the bus stop on a report of suspected drug activity, and it argues that the prosecutor’s reference to “meth” therefore “did not significantly affect the
force of the prosecutor’s argument.” In addition, the state
argues, the context of the rebuttal argument made it clear
that the prosecutor “was not stating a fact about what defendant was actually doing,” but was only refuting defendant’s
argument about “assumptions.” Given those circumstances,
the state argues, the trial court did not abuse its discretion in overruling defendant’s objection or in denying a mistrial motion and—even if the court did err—any error was
harmless, particularly given what the state characterizes
as “overwhelming evidence of defendant’s guilt.”
“We review a trial court’s decision to overrule an
objection to closing arguments for abuse of discretion.” State
v. Totland, 296 Or App 527, 531,
438 P3d 399, rev den,
365 Or
502 (2019). That is, we determine whether the trial court’s
decision to overrule the objection was within the range of
permissible options available to the court. See State v. Stull,
296 Or App 435, 442,
438 P3d 471 (2019) (“Discretion refers
to the authority of a trial court to choose among several
legally correct outcomes.” (Internal quotation marks and
Cite as
307 Or App 442 (2020) 449
citation omitted.)). “However, where a trial court’s purported
exercise of discretion flows from a mistaken legal premise,
its decision does not fall within the range of legally correct
choices and does not produce a permissible, legally correct
outcome.”
Id.
As the Supreme Court has explained, attorneys
generally have “a large degree of freedom” during closing
arguments “to comment on the evidence submitted and urge
the jury to draw any [and] all legitimate inferences from
that evidence.” Cler v. Providence Health System-Oregon, 349
Or 481, 487,
245 P3d 642 (2010) (internal quotation marks
omitted; emphases added). But counsel is not free, in closing
argument, to “make statements of fact outside the range of
evidence.”
Id. at 488 (internal quotation marks and citation
omitted). Indeed, “evidence outside the record may not be
suggested by any means.”
Id. at 490. That absolute prohibition against referring to facts not in evidence is a statement
of law. Accordingly, a trial court’s decision to allow a party
to make a closing argument that is based on facts not in
evidence (by overruling a proper objection) can at least generally be said to flow from a mistaken legal premise—i.e.,
that such an argument can sometimes be permissible. It follows that a trial court generally abuses its discretion when
it overrules a founded objection to a closing argument that
refers to facts not in evidence. See Stull,
296 Or App at 442
(applying that analysis); see also Cler,
349 Or at 490 (trial
court abused its discretion when it overruled an objection to
an argument based on facts not in evidence).1
Here, the prosecutor’s rebuttal argument plainly
referred to a fact not in evidence—that deputies had
responded to a report that “Someone was smoking meth at
1
We ultimately rule that, under the totality of circumstances present in this
case, the trial court abused its discretion in overruling defendant’s objection to
the state’s rebuttal argument based on the reference to facts not in evidence.
Accordingly, we need not decide whether there are some circumstances in which
a trial court could properly overrule such an objection, for example, where the
fact not in evidence is immaterial and not prejudicial to the other party (although
it might be simpler to say that any error in overruling the objection would be
harmless in those circumstances). Hence, in stating that a trial court “generally”
will abuse its discretion by overruling a proper objection to a closing argument
that refers to facts not in evidence, we assume (without deciding) that there may
be exceptions to that general principle.
450 State v. Morehead
the bus stop.” No witness had testified to such a report;
instead, the deputies’ testimony on that point had referred
only to suspected or possible “drug activity.” Lewis did also
testify as to having heard that the person suspected of drug
activity was “smoking,” but that word was used in association with a description of the suspect—not in conjunction
with a characterization of her alleged illegal activity—and
nothing about it suggested anything other than that the
suspect was smoking a cigarette. Moreover, the prosecutor’s
reference to “smoking meth” was material to the central
issue in the case, that is, whether defendant was aware of
the methamphetamine she possessed, along with the pipe
that she admitted was in her bag.
Nonetheless, the state argues that the prosecutor’s
reference to a report about a person “smoking meth” was
permissible because it refuted defendant’s argument, which
the state characterizes as having accused the deputies of
making “a series of ‘assumptions’ and investigat[ing] defendant because she was a homeless woman.” The state certainly was entitled to counter that argument. However, it
was not entitled to refer to facts not in evidence in doing
so. Cf. Cler, 349 Or at 489 (discussing ways that a party
may permissibly obtain recourse against another party’s
improper argument, not including “by remaining silent
during the opponent’s closing argument, and then resorting
to self-help by presenting argument based on facts not in
evidence”).
The state also suggests that, in context, the jury
would have understood that the prosecutor’s reference to the
report about somebody “smoking meth” was meant only to
counter defendant’s “assumptions” argument and “was not
a factual assertion about what defendant was doing.” We
are not persuaded. Immediately after the prosecutor stated
that police had received a report that “Someone was smoking meth at the bus stop,” defendant objected on the ground
of “Facts not in evidence.” The prosecutor then asserted,
incorrectly, that the fact “is in evidence.” Defendant again
insisted that it “was not.” The trial court then overruled
defendant’s objection. The obvious inference for the jury
would have been that the report of “smoking meth” was
in evidence and was something they could consider—why
Cite as 307 Or App 442 (2020) 451
else would the court have overruled defendant’s objection?
Cf. State v. Mayo,
303 Or App 525, 537-38,
465 P3d 267 (2020)
(by overruling the defendant’s objection to state’s argument
that “improperly shifted the burden to defendant by inviting the jury to convict [him] for failing to call witnesses to
create a reasonable doubt,” the trial court “led the jury to
believe that defendant had an obligation to call corroborating witnesses to prove his innocence”).
The prosecutor’s additional statements would not
have cured the problem. Immediately following the exchange
discussed above, the prosecutor said:
“Okay. That can’t be offered for the truth of the matter asserted. You can’t know that’s what was seen, what
was happening, we don’t have that person. There’s no such
(indiscernible).”
We do not believe that the jury would have understood from
those remarks by the prosecutor—not by the court—that
it either should disregard the reference to “smoking meth”
altogether (because, after all, it was not in evidence), or
should consider that reference only for some limited, but
unidentified, purpose. We cannot assume that a lay jury
would understand what it means for a statement not to be
considered “for the truth of the matter asserted” when that
legal terminology is not explained and the jury is not told for
what purpose it can consider the statement.
Indeed, it is difficult for us to understand what, precisely, the prosecutor intended to convey to the jury at that
point. Instead, we find it plausible that, as defendant argues,
the prosecutor’s remarks—particularly the reference to “that
person”—may have made the matter worse by suggesting to
the jury that, even if the “smoking meth” report was not
in evidence “for the truth of the matter asserted,” (1) some
specific person had reported that defendant was smoking
methamphetamine, and (2) that person had not been called
as a witness. Thus, the prosecutor’s remarks decreased any
possibility that the jury might have thought that the prosecutor’s reference to a report about someone “smoking meth”
had merely overstated the deputies’ testimony or was asking
the jury to infer what the report of suspected drug activity
might have been about, based on the testimony before it.
452 State v. Morehead
Under the totality of the circumstances—including
that the prosecutor’s rebuttal closing argument referred to
a material fact not in evidence and implied that a missing
witness could have testified to that fact—we conclude that
the trial court abused its discretion when it overruled defendant’s objection to the argument.
We turn to the question of whether the error was
harmless in the context of this trial. “Despite error, we will
nevertheless affirm a judgment if there is ‘little likelihood
that the error affected the jury’s verdict.’ ” Stull, 296 Or App
at 442 (quoting Davis,
336 Or at 32). The central question
for the jury in this case was whether defendant knew about
the methamphetamine that was in her duffle bag. The prosecutor’s impermissible reference to a report that defendant
had been “smoking meth” related directly to that issue,
undercutting defendant’s denial of any awareness that she
possessed the drug. Even though the prosecutor referred to
“smoking meth” only once, that reference was significant,
given its compelling relationship to the only seriously disputed question before the jury. No other evidence in the
record suggested that defendant had been seen smoking
methamphetamine, so the prosecutor’s comment cannot be
viewed as cumulative of evidence that had been properly
admitted at trial. To the contrary, it gave the jury information about defendant’s reported drug-using behavior that
was completely—and powerfully—different from any other
evidence in the record.
Moreover, the trial court’s instructions would not
have divested the prosecutor’s impermissible remark of its
power. As the Supreme Court explained in Cler, the uniform
instruction that lawyer’s arguments are not evidence does
not cure the problem of a lawyer having referred to facts
not in evidence, because that instruction is premised on the
understanding that lawyers’ arguments are confined to evidence that has been admitted into the record. Cler, 349 Or
at 492. Thus, notwithstanding that instruction, an argument that refers to facts not in evidence can “fundamentally
alter[ ] what the jury would perceive the evidentiary record
to be.” Stull,
296 Or App at 444. Given the circumstances, it
is reasonable to believe that there is more than a little likelihood that that happened here.
Cite as
307 Or App 442 (2020) 453
Finally, we also conclude that defendant’s ultimate
decision not to request a limiting instruction regarding the
prosecutor’s impermissible argument—which would have
been delivered after the jury started deliberating—does not
undercut her ability to challenge the trial court’s decision to
overrule her objection to that argument. Under the circumstances, which include the state’s failure to identify a permissible basis for the prosecutor’s statements (i.e., something
that could provide the rationale for a limiting instruction),
defendant was not required to request such an instruction.
In sum, we conclude that the trial court abused its
discretion when it overruled defendant’s objection to the
prosecutor’s rebuttal closing argument, which referred to
facts not in evidence. Given the significance of the prosecutor’s impermissible reference to “smoking meth,” we conclude that there is more than a little likelihood that the
error affected the jury’s verdict. Accordingly, we reverse and
remand.
Reversed and remanded.
