791
Submitted on remand from the Oregon Supreme Court August 9, reversed and
remanded September 29, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
SCOTT LEANDER CAMIRAND,
aka Scott Camirand,
Defendant-Appellant.
Lincoln County Circuit Court
17CR37531, 17CR24691;
A165966 (Control), A165967
499 P3d 154
The Court of Appeals initially affirmed defendant’s convictions after concluding that the trial court’s error in allowing the prosecutor to argue facts not in
evidence was harmless, as was any error in failing to give the “witness-false-in-part” jury instruction. The Supreme Court vacated that decision and remanded it
for reconsideration in light of the Supreme Court’s subsequent decisions in State
v. Payne, 366 Or 588,
468 P3d 445 (2020), and State v. Banks,
367 Or 574,
481 P3d
1275 (2021). Held: On reconsideration in light of Banks, the prosecutor’s improper
argument had some likelihood of affecting the jury’s verdict and, therefore, the
court’s error in overruling defendant’s objection to it was not harmless.
Reversed and remanded.
On remand from the Oregon Supreme Court, State v.
Camirand, 368 Or 347,
489 P3d 540 (2021).
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 James, Judge, and
Kamins, Judge.
LAGESEN, P. J.
Reversed and remanded.
792 State v. Camirand
LAGESEN, P. J.
This case is before us on remand for reconsideration
of our decision in State v. Camirand, 303 Or App 1,
463 P3d
46 (2020) (Camirand I), vac’d and rem’d,
368 Or 347,
489
P3d 540 (2021) (Camirand II). Our decision in Camirand I
addressed two preserved claims of error, one concerning
prosecutorial misconduct during closing argument, and the
other concerning the court’s refusal to give the “witness-false-in-part” instruction.1
303 Or App at 2. On the first, we
agreed with defendant that the trial court erred by allowing the prosecutor, during rebuttal, to argue facts not introduced into evidence, but we concluded that the error was
harmless.
Id. at 9-11. On the second, we assumed, without
deciding, that defendant was entitled to the witness-false-in-part jury instruction but determined that that error, too,
was harmless.
Id. at 11-13. Our harmless error analysis
with regard to the instruction was premised on the conclusion we reached in State v. Payne,
298 Or App 438, 442,
447 P3d 71 (2019) (Payne I), that the witness-false-in-part
instruction adds little to the case and merely tells the jury
what it already knows.
As it turned out, the Supreme Court disagreed with
our approach in Payne I and reversed that decision, concluding that the failure to give the witness-false-in-part instruction is significant and that the failure to give it was prejudicial in that case. State v. Payne, 366 Or 588,
468 P3d 445
(2020) (Payne II). Then, while the petition for review was
pending in this case, the Supreme Court decided State v.
Banks,
367 Or 574,
481 P3d 1275 (2021), a case that, like
Camirand I, involved a prosecutor’s reference to facts not in
evidence. The court concluded that the prosecutorial misconduct in Banks was prejudicial and required reversal.
Thereafter, the Supreme Court vacated our decision in Camirand I and remanded for us to reconsider our
1
We also rejected various unpreserved assignments of error, including one
about the court’s failure to instruct the jury that its verdict must be unanimous.
Camirand I, 303 Or App at 2 & n 1. None of those unpreserved assignments are at
issue on remand, but we note that the verdicts in this case were unanimous. See
State v. Flores Ramos,
367 Or 292, 294,
478 P3d 515 (2020) (rejecting a claim that
instructional error regarding jury unanimity was structural error that required
reversal of unanimous verdicts).
Cite as
314 Or App 791 (2021) 793
decision in light of Payne II and Banks. As explained below,
we conclude that, in light of Banks, our original decision
did not fully account for the type of prejudice that results
from a prosecutor’s introduction of facts outside the record,
and that the prosecutor’s error in this case was not harmless after all. In light of our reversal, we do not address the
applicability of the witness-false-in-part instruction, which,
if it arises at all on remand, will arise on a different record.
Our decision in Camirand I described the background of the charges and the events at trial, and it is not
necessary to repeat that recitation fully. In short, defendant
was brought to trial on charges of coercion and third-degree
robbery after two individuals, CM and JB, identified him
as the person who had assaulted and bloodied CM and then
forced CM to surrender a cell phone and three one-dollar
bills. The state called three witnesses at trial: CM, JB, and
Randall, the police officer to whom CM and JB reported the
crimes and who later arrested defendant nearby. One of the
pieces of evidence tying defendant to the assault—and on
which the prosecutor built much of his theme of the case—
was the presence of a substance on the gloves that defendant
was wearing when he was arrested, a substance the prosecutor characterized as blood from the assault of CM. As
we recounted in Camirand I, the prosecutor argued during
closing:
“ ‘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.’ ”
303 Or App at 6.
Defendant responded by challenging the strength of
the state’s evidence of identification. Addressing the gloves,
he highlighted the state’s failure to test whatever substance
was on the gloves:
“ ‘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
794 State v. Camirand
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].’ ”
Id. at 7 (emphasis added).
To respond to that argument and counter defendant’s assertions that the failure to test the substance on
the gloves gave rise to a reason to doubt the state’s case, the
prosecutor, in rebuttal, introduced facts outside the record:
“[PROSECUTOR]: ‘[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.’ ”
Id.
Defendant objected on the ground that the state was
arguing facts that were not in evidence, to which 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
Cite as 314 Or App 791 (2021) 795
you what your recollection of the evidence is.” Thereafter, the
prosecutor continued the same line of argument to explain
away its lack of DNA evidence:
“ ‘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].’ ”
Id. at 8.
After those closing arguments, when the trial court
instructed the jury, it included a general instruction 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.’ ”
Id. The evidence that the jury had with it during deliberations included the gloves themselves. The jury ultimately
returned unanimous verdicts on the charges.
On appeal, we agreed with defendant that the prosecutor’s explanation for the state’s lack of DNA testing—
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”—impermissibly introduced
facts that were not in the record, which was error. Id. at 9.
Further, we disagreed with the state’s contention that the
presence of blood on the gloves was “relatively unimportant”:
“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
796 State v. Camirand
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.”
Id. at 10 (emphasis added).
We nevertheless concluded that the prosecutor’s
introduction of facts about DNA testing was not likely to
have affected the jury’s verdict. We reached that conclusion
primarily based on the facts that (1) the jury was able to
inspect the gloves firsthand to evaluate whether the substance on them was blood; (2) the record contained other
evidence indicating that the gloves were bloody; and (3) the
trial court’s instructions to the jury informed it that arguments were not evidence, and that the jury was to base its
decision on its own assessment of the evidence:
“[W]e 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 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
Cite as 314 Or App 791 (2021) 797
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.”
Id. at 10-11 (emphasis in original).
We also noted that, “[a]lthough 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.’ ” Id. at
11 n 3. We stated that it was debatable that a claim of error
based on those statements had been preserved, but we went
on to explain that, “in the context of the case as a whole, that
fleeting reference to the officer’s marriage and honeymoon,
although also improper,” did not have the potential to influence the jury’s verdict. Accordingly, we rejected defendant’s
contention that the court had committed reversible error by
allowing the prosecutor to argue facts not in evidence. Id. at
11.2
After we issued Camirand I, the Supreme Court
decided Banks, a case presenting a similar issue of prosecutorial misconduct through reference to facts outside the
record. In Banks, the state had charged the defendant with
harassment based on an incident at a mobile phone store.
367 Or at 576. Pretrial, the state had provided the defendant with security video from the store, but the video did not
reflect the alleged harassment. Id. During voir dire, the prosecutor told prospective jurors that “ ‘the rules of evidence’ ”
limited what she could present to the jury, that “ ‘some things
are not going to come into the trial today,’ ” and that the jury
was “ ‘not going to have all the facts.’ ” Id. The defendant
objected, arguing that the prosecutor’s statements implied
2
Judge James dissented from that conclusion. He would have concluded
that “the prosecutor made an argument in rebuttal closing that he reasonably
believed would affect the jury,” and that the prosecutor’s “reasoned tactical decision to make that argument to persuade the jury is powerful evidence that it, in
fact, was reasonably likely to affect the jury.” Id. at 19 (James, J., dissenting).
798 State v. Camirand
“ ‘that there’s more video, but for some reason that video
didn’t get to come in by the rules of evidence.’ ” Id. at 578-79.
The trial court denied the defendant’s request to instruct
the jury that it should not assume that “ ‘the rules of evidence have precluded any evidence at this point.’ ” Id. at 580.
The court denied defense counsel’s request. Id.
In the course of the trial, defense counsel argued
that the store had three security cameras and that the state
had failed to produce video showing the alleged harassment.
Id. at 576. During deliberations, the jury sent a question to
the court asking whether the prosecutor knew if there was
video evidence of the alleged harassment and, if so, whether
the prosecutor was required to show it at trial. Id. The court
told the jury that it had been provided the evidence that had
been admitted and that it was “ ‘unable to provide further
response.’ ” Id. The jury found the defendant guilty, and we
affirmed the judgment without opinion. Id. (describing that
procedural posture).
Before the Supreme Court, the state argued that
the prosecutor’s statements were not improper for three reasons: (1) they were made during voir dire, not during trial;
(2) “the statements did not suggest that ‘the state possessed
incriminating evidence,’ just inadmissible evidence”; and
(3) the prosecutor told the jury “that it was ‘not allowed to
speculate.’ ” Id. 587 (emphasis by the state).
The Supreme Court rejected each of those arguments. After first explaining that it was improper for the
state to suggest at any point in the trial, including voir dire,
that the rules of evidence prevented it from presenting all of
its evidence, the court addressed the state’s argument that
the prosecutor had not suggested the existence of incriminating evidence. The court explained that, “because the
state is the plaintiff in a criminal case, a prosecutor’s suggestion that the state has more evidence than it can present
will likely be understood as a suggestion that the state has
more incriminating evidence than it can present,” even if the
prosecutor does not say as much. Id. (emphasis in original).
The court then turned to the state’s contention that
the prosecutor’s reference to facts not in evidence was remedied by the prosecutor also telling the jury not to speculate.
Cite as 314 Or App 791 (2021) 799
The court explained that a prosecutor’s suggestion that
the state has more evidence than it can present is an open
invitation to speculate, and that following that invitation
by telling the jury not to speculate is “at best, inconsistent”
and akin to telling the jury “ ‘not to think of a white bear.’ ”
Id. at 588. “Moreover,” the court explained, by later telling
the jury to focus on the “ ‘facts that are presented,’ ” the prosecutor could have “caused jurors to believe that they were
not to think about the missing video at all”—which would
have been incorrect “because jurors can draw reasonable
inferences from a party’s failure to present evidence ‘[w]hen
it would be natural under the circumstances’ ” for the party
to present that evidence. Id. at 589.
The Supreme Court then addressed the question of
prejudice. The court observed that references to facts outside the record can be prejudicial in two ways: First, they
encourage the jury to speculate about evidence beyond that
presented at trial; and, second, they “provide[ ] a preemptive explanation for the state’s failure to present evidence
that the jury might expect it to present.” Id. at 590. That
prejudice in that case was significant, the court explained,
because the absence of the video of harassment was a central issue, the prosecutor’s statements created a risk that
the jury might think that the state had the video but was
unable to offer it, and “[t]he statements also created a risk
that jurors would believe that they could not take the state’s
failure to present the video into account, which would undercut part of defendant’s defense.” Id.
The court also addressed three arguments advanced
by the state as to why the prosecutor’s statements did not
prejudice the defendant, one of which is especially pertinent
to this case: that the statements were harmless because the
trial court gave the jury standard instructions regarding
how to make its factual findings. In rejecting that argument,
the court explained that “[t]he instructions did not tell the
jury to disregard the prosecutor’s statements,” nor “counter
the prosecutor’s suggestion that the state had evidence that
had been excluded because of the rules of evidence, a suggestion that undercut part of defendant’s defense.” Id. at
592. Moreover, the instructions stated that anything that
was not in evidence, which would include any video of the
800 State v. Camirand
alleged harassment, was unreliable. Id. Relying on Cler
v. Providence Health System-Oregon, 349 Or 481, 490,
245
P3d 642 (2010), the court reiterated the view that Oregon’s
Evidence Code “deters the suggestion of inadmissible evidence to the jury by any means, including through counsel’s
statements, and does not somehow authorize that sort of conduct if the trial court gives the jury standard instructions.”
Banks,
367 Or at 592 (internal quotation marks omitted).
On reconsideration in light of Banks, we conclude,
as Judge James had argued in a dissent to our decision
in Camirand I, that our discussion of harmless error did
not fully account for the harm that occurred in this case
when the prosecutor referred to facts outside the record. We
focused on the fact that “[t]he 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”—in other words, that the prosecutor did not
improperly introduce evidence about what the testing would
have revealed but “why such testing had not occurred.” 303
Or App at 10 (emphasis in original). And we then underestimated the harm from that statement about why the testing
had not happened based on the court’s repeated instructions
to the jury that it was to decide the case based on its own
recollection of the evidence in the record.
Id. at 11.
As Banks makes clear, that approach was flawed
in two ways. First, we did not sufficiently account for the
fact that the prosecutor’s rebuttal addressed a potential
weakness in the state’s case—specifically, as in Banks, it
provided an “explanation for the state’s failure to present
evidence that the jury might expect it to present.” 367 Or at
590. That is, our approach did not recognize how the prosecutor’s argument based on facts outside the record undercut
defendant’s permissible, and potentially powerful, line of
defense. Under Banks, that type of harm—undercutting a
defense argument about the state’s proof using facts not in
evidence—is significant.
Second, and relatedly, we overestimated the curative effect of the trial court’s general instructions to the jury
to follow the evidence. Under Banks, not only do such generic
instructions fail to “tell the jury to disregard the prosecutor’s
Cite as 314 Or App 791 (2021) 801
statements,”
id. and leave them trying “ ‘not to think of a
white bear,’ ” id. at 588, they can exacerbate the harm in
a case like this, where the state is seeking to diffuse an
adverse inference about why it failed to produce certain evidence. In this circumstance, instructions directing the jury
to look only at the evidence can, as Banks stated, “create[ ]
a risk that jurors would believe that they could not take the
state’s failure to present the [evidence] into account, which
would undercut part of defendant’s defense.” Id. at 590.
Having reconsidered under Banks the nature of the
prosecutorial misconduct in this case and the trial court’s
response, we conclude that the prosecutor’s improper argument had some likelihood of affecting the jury’s verdict and,
therefore, the court’s error in overruling defendant’s objection to it was not harmless. The presence of blood on the
gloves was, as we said in Camirand I, “a fact of consequence
in the case and part of the prosecutor’s ‘central’ theme,” 303
Or App at 10, and the prosecutor’s explanation for why the
state did not produce DNA evidence had some likelihood of
affecting the jury’s deliberation about the substance on the
gloves and, consequently, some likelihood of affecting its
determination of defendant’s guilt. We therefore reverse and
remand.
Reversed and remanded.
