State v. Burton ( 2023 )

815
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted May 9, affirmed July 6, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
JAYSON HARRISON BURTON,
Defendant-Appellant.
Washington County Circuit Court
18CR78018; A177214
D. Charles Bailey, Jr., Judge.
Daniel C. Bennett, 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.
Jennifer S. Lloyd, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Joanna Hershey, Assistant Attorney General.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Affirmed.
816 State v. Burton
EGAN, J.
Defendant appeals his conviction after a jury trial
of sexual abuse in the second degree, ORS 163.425,1 assign-
ing error to the trial court’s sustaining of the prosecutor’s
objection, during defense counsel’s closing argument, to
defense counsel’s statement that there was no evidence that
the police had interviewed defendant. Defendant further
contends that the trial court improperly commented on the
evidence in instructing the jurors that they were not to spec-
ulate whether defendant had or had not been interviewed.
Defendant’s argument relating to the court’s instruction
is not preserved, so we therefore do not consider it. We
review the trial court’s ruling relating to the sustaining of
the prosecutor’s objection for an abuse of discretion, Cler v.
Providence Health System-Oregon, 349 Or 481, 487, 245 P3d
642 (2010), and conclude that the trial court did not abuse
its discretion. We therefore affirm.
We summarize the procedural background and the
evidence presented at trial. The charges arose from allega-
tions that defendant had had intercourse with the victim, his
girlfriend’s 14-year-old daughter. The investigator, Detective
Gay, interviewed the victim and the victim’s mother. The
detective also spoke with defendant by telephone, and in
that conversation, defendant did not make any admission of
guilt.
During his opening statement at trial, defense
counsel stated that officers had “attempted to interview”
defendant and that defendant had made no admissions.2
The trial court dismissed the jury briefly to consider
defendant’s motion to dismiss for lack of venue. Outside the
presence of the jury, the court heard testimony from the
detective. Defense counsel asked the detective, “Did you
attempt to interview defendant?” The detective responded,
1
Defendant was charged with, and the jury returned guilty verdicts on, both
sexual abuse and third-degree rape, but the verdicts were merged into a single
conviction for sexual abuse.
2
Defense counsel stated:
“They attempted to interview [defendant] and what you’re going to hear from
law enforcement is that [defendant] made no admissions.”
Nonprecedential Memo Op: 326 Or App 815 (2023) 817
“Yes.” Defense counsel then asked, “Did he admit to you that
something happened in Hillsboro, Oregon?” The detective
responded, “He didn’t admit to anything, no.” The court ulti-
mately denied the motion to dismiss for lack of venue, and
that ruling is not disputed on appeal.
Before the evidentiary portion of the trial and out-
side the presence of the jury, the prosecutor told the court
that the state did not intend to ask the detective about
her conversation with defendant and asked the court not
to allow defendant to question the detective about his own
hearsay statements. Defense counsel acknowledged that
there would be no testimony about defendant’s conversation
with the detective. The court then deferred ruling on the
state’s request.
At trial, the victim and her mother testified that
defendant had had sexual intercourse with the victim. The
detective also testified and described her investigation of the
case but made no mention of having interviewed defendant.
Defendant’s theory at trial was that police had
not adequately investigated the charges. During closing
argument, defense counsel attacked the thoroughness of
the police investigation, suggesting that there was no evi-
dence that police had attempted to interview or investigate
defendant:
“What you also didn’t hear was reports by law enforcement
about their attempt to interview [defendant]. So, one of
two things might have happened. Maybe he wasn’t investi-
gated. We don’t know. We didn’t hear any testimony about
that.”
The state objected, and the trial court sustained the objec-
tion, reasoning that the argument assumed facts not in evi-
dence. Defense counsel tried a second time: “Did you hear
any of the investigators say I spoke to [defendant]?” The
prosecutor again objected.
The court and the lawyers discussed the state’s
objection outside the presence of the jury. The prosecutor
contended that defendant’s argument suggested incorrectly
that there had been no interview of defendant when, in fact,
818 State v. Burton
there had been. The prosecutor asserted that defense coun-
sel was
“arguing things to the jury that were kept out, that are
not in evidence. That there is, in fact, conversations with
[defendant] that were specifically not presented to the jury
that they—that exist and he’s arguing things do not exist
or that—suggesting things that are, in fact, true or could
be true and arguing things—facts that are not in evidence
and I would ask that he stay as far away from that as
possible.”
The trial court agreed, explaining, “there’s a difference
between whether or not he was interviewed and whether
or not they heard any testimony regarding any admis-
sions.” The court noted that defense counsel had not asked
the detectives any questions about whether they had spo-
ken with defendant, and that “we do know he’s been inter-
viewed.” The court ruled that defense counsel should not
ask the jury to speculate about whether any interviews had
taken place. But the court agreed that defendant could tell
the jury that “none of the officers had testified to any admis-
sions made by his client.”
Defense counsel then resumed closing argument,
stating, “You didn’t hear from the law enforcement witnesses
that they had interviewed [defendant]. You just didn’t hear
that.” The prosecutor again objected, and the trial court
again sustained the objection. The court then instructed the
jury:
“Ladies and gentlemen, I don’t want you guys speculating
about whether there were, or [were] not, any interviews.
Certainly, it was not raised. And it’s not important for you
guys to know if there was or was not any interviews done of
the defendant in this particular case.
“In regarding the argument, it’s only argument and so
that’s all there are. They’re not facts to be presented to you
all. But I don’t want you guys speculating whether there
were or were not any interviews done by the defendant.”
Defense counsel did not object to the court’s instruction and
resumed closing argument, making no further reference to
the lack of evidence of any admissions made by defendant.
Nonprecedential Memo Op: 326 Or App 815 (2023) 819
On appeal, defendant asserts in his first assignment
that the trial court abused its discretion in sustaining the
prosecutor’s objection to defense counsel’s suggestion that
defendant had not been interviewed by police. Defendant
notes that an attorney has a “large degree of freedom” in
closing arguments, see Cler, 349 Or at 487-88 (so stating),
and contends that he was entitled to point out gaps in the
state’s case by highlighting evidence that ordinarily would
have come in at trial.
The state responds that the trial court correctly
exercised its discretion in sustaining the prosecutor’s objec-
tion to defense counsel’s suggestion to the jury that it spec-
ulate that police had not interviewed defendant. We con-
clude that the trial court acted within its discretion when
it prohibited counsel from suggesting that the detective
had not interviewed defendant at all. The court correctly
determined that the argument was misleading, because it
asked the jury to speculate that police had failed to con-
tact defendant, when counsel knew that police had, in fact,
interviewed defendant. Contrary to defendant’s argument,
defense counsel is not entitled to invite the jury to draw an
inference that defense counsel knows to be false. See State
v. Blueford, 312 F3d 962, 968 (9th Cir 2002) (“It is certainly
within the bounds of fair advocacy for a prosecutor, like any
lawyer, to ask the jury to draw inferences from the evidence
that the prosecutor believes in good faith might be true.
But it is decidedly improper for the government to propound
inferences that it knows to be false, or has very strong rea-
son to doubt[.]”). The trial court acted within the bounds of
its discretion when it controlled the scope of defendant’s clos-
ing argument to prevent him from misleading the jury.
Affirmed.