State v. McCurry ( 2019 )

666
Argued and submitted March 22; affirmed November 27, 2019; appellant’s peti-
tion for reconsideration filed January 15, allowed by opinion March 11, 2020
See 302 Or App 794, ___ P3d ___ (2020)
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHARLES TIRY McCURRY,
Defendant-Appellant.
Washington County Circuit Court
17CR01344; A165882
455 P3d 1014
Defendant appeals a judgment of conviction for first-degree burglary, first
and second-degree robbery, unlawful use of a weapon, and first-degree theft,
assigning error to the trial court’s failure to declare a mistrial sua sponte after
the prosecutor purportedly vouched during closing argument for the state’s wit-
nesses’ credibility. Held: The prosecutor’s statements were not so prejudicial as to
have denied defendant a fair trial. Therefore, the trial court did not err in failing
to declare a mistrial sua sponte.
Affirmed.
Oscar Garcia, Judge.
Erik Blumenthal, 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.
Shannon T. Reel, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and
Shorr, Judge.
ARMSTRONG, P. J.
Affirmed.
Cite as 300 Or App 666 (2019) 667
ARMSTRONG, P. J.
Defendant appeals a judgment of conviction for first-
degree burglary, first and second-degree robbery, unlawful
use of a weapon, and first-degree theft. He assigns error to
the trial court’s failure to declare a mistrial sua sponte after
the prosecutor purportedly vouched during closing argu-
ment for the state’s witnesses’ credibility.1 Although some
of the prosecutor’s statements may have been improper, we
conclude that they were not so prejudicial as to deny defen-
dant a fair trial. Hence, we affirm.
Defendant was indicted for crimes committed in a
burglary of a home of an acquaintance of his. Before defen-
dant’s trial, two of his codefendants pleaded guilty to crimes
related to the burglary. At defendant’s trial, both codefen-
dants testified that defendant had planned the burglary, and
that the plan was for defendant to go to the acquaintance’s
home and get the acquaintance to open the door to the home
when the codefendants knocked on it. Then, defendant would
pretend to be a victim of the burglary while facilitating it.
Defendant testified at his trial and denied that he had been
involved in the burglary. Rather, defendant claimed to be a
victim of it. Defendant also testified that, after the burglary,
he hid in his girlfriend’s apartment and did not respond to a
police knock on the apartment door because he feared that
the burglars might have pursued him.
During closing argument, the prosecutor made mul-
tiple comments indicating that the state’s witnesses were
credible and that defendant’s version of events was not. The
prosecutor said, “I submit to you [that one of the codefen-
dant’s testimony] is credible.” The prosecutor also told the
jury, “This is what I submit to you actually occurred based
on the credible testimony of the witnesses, other than the
defendant, and the other evidence in this case.”
Defendant highlights several additional statements
that the prosecutor made in his closing argument. First, in
1
Defendant also assigns error to the trial court’s failure to declare a mistrial
sua sponte for purportedly improper argument by the prosecutor that appealed
to the emotions of the jury. We reject that assignment of error without further
discussion.
668 State v. McCurry
response to testimony that defendant had told the victim not
to call 9-1-1 when the codefendants arrived at the home, the
prosecutor said, “I mean, think about that. I mean, just on
its face, that doesn’t make sense. It makes no sense what-
soever, especially if, as [defendant], himself, wants you to
believe, he had no idea who these guys were.” Next, the pros-
ecutor described the victim’s testimony as “incredibly cred-
ible” and “extremely credible,” going on to say “[t]here’s no
way this kid was making up the story. He’s as—as matter
of fact about things as you can possibly be.” The prosecutor
also described another witness’s testimony as follows:
“And, again, regarding his credibility, he—I submit to
you that this young man—he’s the super-skinny kid with
the kind of disheveled collar, you know. He came in yester-
day. I submit to you he couldn’t tell a lie if he had a gun to
his head, right?
“I mean, he just listened to each question and gave you
the straight—straight truth to every single one. And he
told you that, ‘Yes. In fact, [codefendant] tried to get me to
do this robbery with him.’
“And this is really the—the stake in the heart of [defen-
dant’s] claims because—and even if he wants to try to
paint a picture of [one codefendant] as nothing more than a
dirty criminal and [the other codefendant as] nothing more
than a dirty criminal, this kid—I mean, I hope you agree
with me on this, that—that there’s really no way to credibly
argue that he wasn’t telling you the truth.”
Finally, regarding defendant’s testimony that he
had been hiding in an apartment after the burglary and
did not open the door to the apartment when police officers
knocked, the prosecutor stated:
“Who hides from the cops? That’s a rhetorical question.
You’re not allowed to answer it. I’ll answer it for you. Guilty
people hide from the cops, right? Now, if he wasn’t in there,
if they were knocking on an empty apartment door, right,
what does that mean?
“Again, I’ll answer this one for you, too. It means he’s
lying. It means he lied under oath to you. And if a person
is—comes in here and tells a provable lie under oath, then
you can and should take their testimony and set it aside
Cite as 300 Or App 666 (2019) 669
and not use it to base your verdict on. That just makes log-
ical sense.”
Defendant did not object to any of the prosecutor’s
statements. However, the trial court did instruct the jury
that “lawyers’ statements and arguments are not evidence.”
The jury found defendant guilty of the burglary and related
crimes.
On appeal, defendant contends that the trial court
erred by not declaring a mistrial sua sponte on the basis of
prosecutorial misconduct. Defendant admits that he did not
object to any of the prosecutor’s statements, but he argues
that the statements were so prejudicial that the trial court
had a duty to declare a mistrial on its own motion. Defendant
asks us to address the trial court’s failure to declare a mis-
trial as plain error.
We may reverse a trial court’s action as plain error
if the error (1) is an error of law; (2) is not reasonably in dis-
pute; and (3) is apparent on the face of the record. E.g., State
v. Turnidge, 359 Or 507, 518, 373 P3d 138, cert den, 137 S Ct
569 (2016). “Applying that standard, the trial court’s failure
to grant a mistrial sua sponte constitutes reversible error
only if it is beyond dispute that the prosecutor’s comments
were so prejudicial as to have denied defendant a fair trial.”
State v. Montez, 324 Or 343, 357, 927 P2d 64 (1996), cert den,
520 US 1233 (1997).
The Supreme Court addressed in State v. Parker,
235 Or 366, 376-77, 384 P2d 986 (1963), prosecutorial state-
ments arguably similar to those in this case. There, the
prosecutor told the jury that a state witness “was telling the
truth. We wouldn’t have her if she wasn’t. It is impossible
for her to have been lying. It is impossible for her to have
told that story.” Id. at 376. The prosecutor then told the jury
to rely on the police officers who had testified for the state
because “[t]hey testify to the truth, and [the defendant] is
guilty of killing [the victim]. And, we ask you to go in there
and if you believe it, if you believe it, find him guilty.” Id. at
377. The court affirmed defendant’s conviction, concluding
that those statements were not grounds for reversal absent
an objection or request for an instruction about them.
Id. at 378; see also State v. Cheney, 171 Or App 401, 410-12,
670 State v. McCurry
16 P3d 1164 (2000), rev den, 332 Or 316 (2001) (although
prosecutor’s comment that he only recommends charges in
“true cases” was “well beyond the bounds of proper argu-
ment,” the trial court did not err in failing to declare a mis-
trial sua sponte).
Defendant argues that the comments by the prose-
cutor in this case were similar in their import to the state-
ments in Parker. Here, the prosecutor told the jury that the
state’s version of the events was the true story and that
defendant’s testimony was false. The prosecutor described
the state’s witnesses as—among other things—“extremely
credible,” said that one of them was incapable of telling a
lie even “if he had a gun to his head,” and said that there
was “no way” that one witness could have made his story
up. However, Parker, the Supreme Court affirmed based on
lack of prejudice, and we do the same here. Even assuming
that the statements in this case constituted prosecutorial
vouching akin to that in Parker, the statements were not so
prejudicial as to require the trial court to declare a mistrial
sua sponte. Hence, the trial court did not err in failing to do
that.
Affirmed.