State v. Soprych

                                      306

      Argued and submitted December 20, 2019, reversed and remanded
                             March 16, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   MICHAEL LEE SOPRYCH,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      17CR76882; A167764
                                  

    Defendant appeals a judgment of conviction for unlawful possession of
methamphetamine and possession of a controlled substance in schedule IV. He
challenges, among other things, the prosecutorial statements made during voir
dire that remarked on his right to a trial and the presumption of innocence; he
argues that under both the state and federal constitutions the trial court erred
by denying a motion for a mistrial. Held: The prosecutor’s statements during
voir dire undermined the presumption of innocence and deprived defendant of
an opportunity for a fair trial guaranteed by the state and federal constitutions.
Accordingly, the trial court erred by denying the motion for a mistrial.
    Reversed and remanded.



    Janelle F. Wipper, Judge.
   Neil F. Byl, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Joanna R. Hershey, Assistant Attorney General, argued
the cause for respondent. On the brief were Ellen F.
Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Hannah K. Hoffman, Assistant Attorney
General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
    JAMES, J.
    Reversed and remanded.
Cite as 

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        JAMES, J.
         Defendant appeals from a judgment of conviction of
one count of unlawful possession methamphetamine, ORS
475.894(2)(a) and one count of possession of a controlled substance in schedule IV, ORS 475.752(3)(d), raising two arguments, divided into four assignments of error. In defendant’s
first and second assignments he challenges prosecutorial
statements made during voir dire, arguing under both the
state and federal constitutions that the trial court erred in
denying his motion for a mistrial. Our resolution on that
issue obviates the need to address defendant’s third and
fourth assignments of error. We conclude that the statements were an impermissible comment on defendant’s invocation of the constitutional right to trial. Given the context,
an adverse inference was inescapable and accordingly, the
trial court abused its discretion in denying the mistrial
motion. Accordingly, we reverse.
          We review a trial court’s denial of a motion for mistrial for abuse of discretion. State v. Worth, 

, 

 (2009). Under the abuse of discretion standard, we consider whether the decision of the trial court was
within a range of legally correct choices and whether it produced a permissible and legally correct outcome. 

 If the
effect of improper comments or conduct at trial is to deny
a defendant a fair trial, the court abuses its discretion in
denying a motion for a mistrial. 

.
        During voir dire, the prosecutor asked the following
questions to the venire panel:
      “[THE STATE]: So, everyone’s comfortable with the
   fact that if you and (indiscernible) are accused of a crime
   you have an absolute constitutional right to a trial, right?
   Everyone—everyone agree with that.
      “[DEFENSE COUNSEL]: I’m going to object for a second and ask for a sidebar.”
         After the sidebar, the prosecutor continued with her
line of questioning:
      “[THE STATE]: All right. So everyone’s comfortable
   with this process as part of our right, right?
308                                              State v. Soprych

     “And so do we have any bags, any handbags down here?
   Okay.
      “So let’s say that I look over and I see a handbag, and I
   say, ‘Oh, that’s a really nice handbag, I like that a lot.’
      “And I reach over and I grab it and I say, ‘I’m stealing
   this handbag. I’m stealing this handbag and I’m going to
   keep it forever,’ and I walk out that door. And since all of
   you were being recorded there’s video surveillance in here
   and I run out there and I yell, ‘I’m keeping this bag. I’m
   stealing it forever. This is mine now.’
      “And the bag gets stops out there and I say, ‘Okay, you
   got me. I was stealing the bag. I admit it. I took it. You
   got me.’ I have a right to a trial. Everyone’s still okay with
   that?
      “[PROSPECTIVE JURORS]:           Yes.
      “[THE STATE]: Everyone understands that in
   America this is our absolute constitutional right, and that’s
   why you’re all here to uphold that right. You’re okay with
   that?
      “[PROSPECTIVE JURORS]:           Yes.”
        After the jury was selected, the court gave defense
counsel an opportunity to state for the record the issue that
the parties discussed during the sidebar. Defense counsel
moved for a mistrial, and the trial court denied that motion:
      “THE COURT: [W]e need to put on the record the
   issue that we talked about at sidebar.
        “[DEFENSE COUNSEL]: Yes, Your Honor. And at this
   time, Defense objects to the State’s hypothetical and pointing out to the jury that everyone has a right to a trial even
   if it’s obvious they’ve committed a crime. It is an improper
   comment on innocence. It’s an improper comment on any of
   the evidence and it’s also conditioning the jury, and at this
   point we would move for a mistrial because it is improper,
   it’s a constitutional violation.
      “THE COURT: Ms. Meisel?
       “[THE STATE]: It’s not improper. It wasn’t—it’s proper
   to talk in jury—in voir dire about somebody’s constitutional
   rights and about the right to a trial and the fact that we’re
   here. And the question was, or the statement was, just
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   because there’s a trial doesn’t mean there’s an issue and—
   that’s all I have.
      “THE COURT: The way the phrase, the question was
   phrased, the Court does not feel it was improper which is
   why I allowed the questioning to continue and the Court
   was making sure I kept listening to make sure it didn’t go
   any further so that there were any potential issues. It did
   not and I am denying the request for a mistrial.”
         We turn now to our discussion of the merits.
Article I, section 11, of the Oregon Constitution provides, in
part:
   “In all criminal prosecutions, the accused shall have the
   right to public trial by an impartial jury in the county in
   which the offense shall have been committed ….”
         Article I, section 11, as well as the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution, guarantees a criminal defendant’s right to a
fair trial by an impartial jury. State v. Langley, 

, 

 (2018); Morgan v. Illinois, 

, 726-
27, 

, 

 (1992). That right guarantees that a defendant shall be tried by a jury that will
decide guilt based on evidence—not emotion or prejudice.
State v. Evans, 

, 

 (2008); Smith v.
Phillips, 

, 

, 

 (1982).
          A prosecutor’s reference to or comment on a defendant’s invocation of a constitutional right, such as the right
to counsel, the right to remain silent, or the right to a trial,
may prejudice a defendant’s ability to have a fair trial if the
jury is likely to draw a negative inference from the exercise
of that right. State v. Smallwood, 

, 

, cert den, 

, 

, 

(1977) (“There is no doubt that it is usually reversible error
to admit evidence of the exercise by a defendant of the rights
which the constitution gives him if it is done in a context
whereupon inferences prejudicial to the defendant are likely
to be drawn by the jury.”); State v. Nulph, 

, 

 (1977), rev den, 

 (1978) (“[T]he
state should not benefit from the improper, although perhaps
logical, inference that a defendant who invokes his right …
is guilty of the charged offense. … [S]uch an inference is
310                                            State v. Soprych

likely to … penalize one for exercising his rights.” (Citation
omitted.)). “The fact that a prosecutor’s conduct is not intentional does not affect a defendant’s fundamental right to a
fair trial.” State v. Grenawalt, 

, 

, rev den, 

 (1987).
         One such negative inference can be the erosion, or
misconstruction, of the presumption of innocence. “The presumption of innocence is not a mere form, but a substantial part of the law, that remains with the defendant from
the beginning of the trial until a verdict is found.” State v.
Rosasco, 

, 

 (1922). Prosecutorial
statements that distort the presumption of innocence can
necessitate a mistrial. Worth, 

.
        An improper comment on a constitutional right can
occur directly, but also through targeted innuendo. As the
Oregon Supreme Court noted in State v. Pinnell
   “The attempt to communicate impressions by innuendo
   through improper statements of counsel in offering evidence or by putting impermissible questions to a witness is
   a similar improper tactic which has often been condemned
   by the courts. See generally 6 Wigmore on Evidence, § 1808
   (Chadbourn Rev. 1976). Our holding today comports in
   large measure with the standards set forth by the American
   Bar Association (ABA). The ABA Standards for Criminal
   Justice, Standard 3-5.3(c) (2d ed. 1980), provides:
      “ ‘The opportunity to question jurors personally should
      be used solely to obtain information for the intelligent
      exercise of challenges. A prosecutor should not intentionally use the voir dire to present factual matter
      which the prosecutor knows will not be admissible at
      trial or to argue the prosecution’s case to the jury.’ ”

, 108 n 16, 

 (1991). See also Griffin v.
California, 

, 614, 

, 

(1965) (any comment on or adverse inference drawn from a
defendant’s assertion of his or her right not to testify violates the Fifth Amendment); United States v. Johnston, 

 (5th Cir 1997) (an impermissible comment on a
constitutional right can be direct, or indirect; the inquiry is
whether the “character of the remark was such that the jury
would naturally and necessarily construe it as a comment
on the [invocation of the right]”).
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         Here, the prosecutor’s hypothetical was a thinly
veiled comment on defendant’s choice to exercise his right
to a trial and was improper. However, not every improper
comment on a constitutional right requires a mistrial.
   “The context in which a reference is made to the defendant’s invocation of a constitutional right may be such that
   the jury’s attention is directed away from the adverse inference of guilt based on the invocation. Where the context
   makes such an inference unlikely, the trial court does not
   abuse its discretion if it denies the defendant’s motion for
   a mistrial.”
State v. Veatch, 

, 

 (2008).
         Here, the context did not draw the jury away from
a negative inference; rather, the negative inference was the
premise of the prosecutor’s hypothetical. Indeed, the prosecutor explained that the purpose of the hypothetical was to
tell the jury that just because “there’s a trial doesn’t mean
there’s an issue.” That purpose, and that inference, undermine the presumption of innocence in a way similar to the
statement discussed in Worth. 

 (holding
that the trial court erred by not granting a mistrial when
the prosecutor repeatedly misstated the defendant’s presumption of innocence to the jury). The prosecutor readily admitted that the implication she was seeking to draw
was that defendant was exercising his right to a trial even
though the prosecutor believed, and by extension the jury
should as well, that the evidence of guilt was overwhelming.
In short, the implication of the prosecutor’s hypothetical and
additional comments was that obviously guilty people will
invoke their right to a trial, and this jury had been called
only as a formality, because defendant was one of that group.
         Under the Oregon Constitution, when determining
whether an error was harmless, the dispositive question is
whether there is “little likelihood that the particular error
affected the jury’s verdict.” State v. Davis, 

, 

 (2003) (construing Or Const, Art VII (Amended),
§ 3, which requires this court to affirm trial court judgments, notwithstanding an error in the trial, if this court
is of the opinion “that the judgment of the [trial court] was
such as should have been rendered”). For purposes of the
312                                         State v. Soprych

federal constitution, we ask whether, “on the whole record,
the constitutional error was harmless beyond a reasonable
doubt.” Delaware v. Van Arsdall, 

, 

, 

 (1986). Prosecutorial error in voir
dire can harm the eventual trial. See, e.g., State v. Banks,

, 

 (2021). Here, we conclude
that, given the context, the voir dire question and hypothetical undermined the presumption of innocence and deprived
defendant of an opportunity for a fair trial in front of an
impartial jury, as guaranteed under both the state and federal constitutions.
        Reversed and remanded.