State v. Cox

No. 692             December 28, 2023                   813

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                 STEVEN DANIEL COX,
                   Defendant-Appellant.
              Josephine County Circuit Court
                   20CR07205; A176552

  Brandon S. Thueson, Judge.
  Argued and submitted November 13, 2023.
   Sara F. Werboff, 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 Hershey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Hadlock, Judge pro tempore.
  JOYCE, J.
  Reversed and remanded.
814                                                               State v. Cox

           JOYCE, J.
         Defendant appeals from a judgment of conviction
for second-degree murder with a firearm and unlawful use
of a weapon with a firearm. On appeal, defendant raises 19
assignments of error.
         In assignments 7 through 19, defendant contends
that the trial court plainly erred when it failed to sua sponte
declare a mistrial based upon allegedly improper statements that the prosecutor made during closing and rebuttal
arguments. As explained below, we agree with defendant
that he was entitled to a mistrial based on the prosecutor’s
statements and reverse on that basis. That conclusion, in
turn, obviates the need to address defendant’s remaining
assignments of error.1
         Prosecutor’s statements during closing and rebuttal
arguments. Defendant fatally shot J. Defendant claimed that
he shot J in self-defense. The state disputed defendant’s version of events, relying on the testimony of eyewitnesses and
physical evidence. During closing and rebuttal arguments,
the prosecutor made over a dozen statements that defendant
had lied about his version of events, including statements
such as:
   •    “He knew that police were gonna come around and ask
        questions about it and he had to say something. And so
        it’s what he cooked up to try and get away with shooting
        a man ….”
   •    “The reason those four men heard no threats to kill is
        because that is a lie …. It is a lie the defendant made
        up to try and get away with killing [J].”
   •    “It’s just, it’s silly his lies that he’s making up to try and
        justify shooting this man.”
   •    “It’s totally ridiculous and it does not make sense
        because the defendant’s claim of self-defense is ridiculous and based on lies. He is lying.”

    1
       In assignments 1 through 4, defendant challenges the trial court’s failure
to give certain jury instructions. In assignment 5, defendant argues that the
trial court erred when it excluded evidence that J’s blood tested positive for methamphetamine. In assignment 6, defendant contends that the trial court plainly
erred when it allowed the prosecutor and witnesses to refer to J as a “victim.”
Nonprecedential Memo Op: 

 (2023)                815

  •   “Then [Hutchinson] comes in here under subpoena to
      tell the truth and all of a sudden, [Hutchinson] is some
      bad guy, some enemy of this man trying to get him in
      trouble for things he did not do. False. Lies. The tricks
      of a guilty man.”
        Defendant did not object to any of the prosecutor’s
statements or move for a mistrial based on those statements.
The jury found defendant guilty.
         Despite failing to have objected to the statements,
defendant now argues on appeal that the prosecutor’s statements were improper and, indeed, that they were so prejudicial that a curative instruction would not have been sufficient to assure the court that the defendant received a fair
trial. State v. Chitwood, 

, 

 (2022)
(setting forth the framework for reviewing a plain error
claim of prosecutorial misconduct). We recently applied the
Chitwood framework in State v. Montgomery, 

, 

 (2023), where we considered whether
repeated statements that the prosecutor made, during closing and rebuttal arguments, that the defendant had lied
were so prejudicial as to deny the defendant a fair trial. We
concluded that the statements were improper because they
could have led the jury to infer that the prosecutor believed
the complainant and not the defendant, and it would have
been improper for the jury to evaluate the witnesses’ credibility on that basis rather than on the evidence. 

.
Noting the repetitious nature of the comments and that
defendant’s credibility was a central and critical issue in the
case, we further concluded that the statements constituted
plain error because they were so prejudicial that a curative
instruction would not have been sufficient to assure the
court that the defendant received a fair trial. 

.
We exercised our discretion to correct the plain error and
reversed the defendant’s conviction. 

.
        Here, the prosecutor’s statements that defendant
lied are not meaningfully distinguishable from the statements at issue in Montgomery. The prosecutor repeatedly
made the statements during closing and rebuttal arguments and, again as in Montgomery, defendant’s credibility was a central issue. From the prosecutor’s statements,
816                                             State v. Cox

the jury could have inferred that the prosecutor believed
that defendant had lied and that the state’s witnesses were
truthful, and the jury could have improperly evaluated the
credibility on that basis. Thus, similar to the statements in
Montgomery, the statements were improper and constitute
plain error.
         We now must determine whether the error was
harmless and, if not, whether we should exercise our discretion to correct it. State v. Horton, 

, 

 (2023). Because the error impacted defendant’s right
to a fair trial, we conclude that the error was not harmless,
and we exercise our discretion to correct the error. State v.
Garcia, 

, 

, rev den, 

 (2017) (an error is not harmless if it is likely that the
error “substantially affected the defendant’s rights”); Ailes
v. Portland Meadows, Inc., 

, 382 n 6, 

 (1991) (in deciding whether to exercise its discretion to
consider plain error, the court may consider, among other
factors, the gravity of the error and the ends of justice).
        Reversed and remanded.