Date: 03-18-2015

Case Style: State of Oregon v. Paul A. Spieler

Case Number: A148904

Judge: Haselton

Court: Oregon Court of Appeal on appeal from the Circuit Court, Malheur County

Plaintiff's Attorney: Jennifer S. Lloyd, Attorney-in-Charge, argued the cause
for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Anna M. Joyce, Solicitor General, and
Christina M. Hutchins, Senior Assistant Attorney General.

Defendant's Attorney: eorge Kelly argued the cause and filed the brief for
appellant.

Description: Defendant, who was convicted after a jury trial of
two counts of first-degree sexual abuse, ORS 163.427, and
one count of second-degree sodomy, ORS 163.395, appeals.
He asserts that the trial court erred in denying his motion
to suppress evidence, and in denying his motion for a mistrial
made during the prosecutor’s closing argument. He
also argues that nonunanimous jury verdicts are unconstitutional.
We reject the latter argument without discussion.
As explained below, we conclude that the trial court
correctly denied defendant’s motion to suppress, but erred
in denying his motion for a mistrial. Accordingly, we reverse
and remand.
MOTION TO SUPPRESS
We begin with the denial of defendant’s motion
to suppress. In particular, as recounted more fully below,
defendant sought to suppress statements that he made
during a police interview, as having been involuntarily
given in response to improper inducement. In reviewing the
trial court’s determination as to purported involuntariness,
“we accept the court’s findings of fact if there is any evidence
to support them. If findings are not made on such
facts, and there is evidence from which such facts could be
decided more than one way, we will presume that the facts
were decided in a manner consistent with the ultimate
conclusion, e.g., voluntariness or lack thereof, made by the
trial court. Whether the facts found by the trial court are
sufficient to sustain the trial court’s ultimate conclusion
regarding voluntariness is a question of law that we review
for legal error.”
State v. Ruiz-Piza, 262 Or App 563, 564, 325 P3d 802 (2014)
(citations and internal quotation marks omitted).
The complainant is defendant’s biological niece and
adopted daughter, M. In 2008, M, who was then a teenager,
made disclosures that defendant had sexually abused her
when she was younger. M was subsequently interviewed at
an assessment program, the STAR Center. At the request
of Detective Perkins, who arranged for and observed the
STAR Center interview, M made a pretext call to defendant
626 State v. Spieler
during which she asked defendant why he had abused her.
Defendant responded variously that he did not remember,
that he did not want to discuss it over the phone, that his
wife had not been a good wife to him, and that M was, in a
way, taking his wife’s place. He also stated that he was “not
proud of it” and “[i]f I could just get it to go away it would be
great.”
Following the pretext call, Perkins obtained a warrant
to search defendant’s home for evidence of sexual abuse,
and, in the course of executing the warrant, he encountered
defendant. Perkins informed defendant of M’s allegations,
advised him of his Miranda rights, and asked defendant
(who was not under arrest) if he would come to the police
station to be interviewed. Defendant agreed and accompanied
Perkins.
Once at the police station, Perkins confirmed that
defendant remembered the Miranda warning. The ensuing
interview, which was conducted in a small room, lasted
approximately 30 minutes. Defendant initially denied any
sexual contact with M and indicated that he had no memory
of the events she had disclosed. During the interview,
Perkins remarked that it was odd for defendant to say he did
not remember, rather than that it “didn’t happen,” and the
following exchanges occurred:
“PERKINS: * * * [T]he way I work I believe, number
one, I believe victims when they talk, okay, unless there’s
some extenuating circumstance, you know, like a major
custody battle, that sort of thing, which I don’t see in this
case. Uh, it looks like the kids pretty much are separated
the way they want to be separated and there hasn’t been a
problem with it.
“Um, but to your benefit, and like I said, we’re recording,
it’s best to come out with what happened other than, you
know, me having to tell a judge that, you know, it took a half
an hour to—I’m not really into that; I don’t really like to sit
here and berate. People have issues, people have problems
that need to get help, and you know, that’s what we would
like to see happen. Um, but it doesn’t—I just don’t want it to
look bad on you that you, you know, you’d lie up and down,
so it’s best just to get it out because the truth’s going to come
out.
Cite as 269 Or App 623 (2015) 627
“[DEFENDANT]: Mmm hmmm.”
(Emphasis added.)
There followed some general discussion of defendant’s
activities with M, as well as some discussion of
the allegations that M had made, and then the following
exchange occurred:
“[DEFENDANT]: I know you know more than you’re
letting me know, that you think you know, that’s kind of a
triple statement there. I did not undress her. I did not put a
vibrator inside her.
“PERKINS: No one said that.
“[DEFENDANT]: Right.
“PERKINS: That would make you a monster, about
putting something inside her. But the thing, your finger,
they didn’t say anything else. I think you’re a man that
has some issues and I don’t know where they come from,
I don’t know your family, your past, what happened to you
as a kid; I don’t know anything about that. I mean, this is
the first time I’ve met you. But I do know having done this
for a long time that people have issues and they need to get
help. They need to get past it. I mean you’re still young, Paul,
but you need to get this off your chest and you need to get the
help. Do you understand that?
“* * * * *
“PERKINS: Look, you can’t get anything by lying,
and not being a man and facing up to, you know, your
responsibilities.
“[DEFENDANT]: No. I know. I’m just * * * I know.”
(Emphasis added.)
Thereafter, Perkins asked defendant, “Why did it
happen?” and defendant responded variously that his relationship
with his wife had been bad, and that M had been
like a friend to him and not like his own biological child, as
she was adopted. Defendant then acknowledged that he had
had sexual contacts with M.
Defendant was charged with five counts of firstdegree
sexual abuse and one count of second-degree sodomy,
628 State v. Spieler
with the indictment alleging that the conduct occurred
at various times between January 2000 and May 2006.
Defendant moved before trial to suppress his statements
made during the interview, arguing that they were obtained
involuntarily, in violation of Article I, section 12, of the
Oregon Constitution. In particular, defendant argued that
Perkins’s statements implied a promise of leniency and suggested
that defendant needed to admit his crimes in order
to obtain help. At the suppression hearing, Perkins acknowledged
that the interrogation had involved a “carrot-and-stick
approach,” whereby a confession could benefit defendant by
allowing him to get help but continued nondisclosure would
“look bad” to the court. Defendant testified that he believed
from his interaction with Perkins that he would receive
psychological help and that he needed to cooperate or “the
penalty would get worse.” The trial court denied defendant’s
motion to suppress stating:
“Throughout the tape Detective Perkins used a very, I
would describe it as a very soft, low-toned conversation. At
no time was his voice even raised. At no time did I hear any
threats or promises. He was certainly encouraging [defendant]
to disclose what happened, but I heard nothing that
would suggest he was intimidating, making any improper
promises, or anything—did anything that made the statement
involuntary.”
On appeal, defendant reiterates his arguments,
contending that his admissions were obtained in violation
of Article I, section 12.1 For purposes of Article I, section
12, “ ‘a confession is initially deemed involuntary. Before
a confession can be received in evidence, the state must
show that it was voluntarily given, that is, made without
inducement through fear or promises, direct or implied.’ ”
Ruiz-Piza, 262 Or App at 573 (quoting State v. Mendacino,
288 Or 231, 235, 603 P2d 1376 (1979)). A “simple promise of
treatment does not, by itself, render an admission involuntary.”
State v. Pollard, 132 Or App 538, 543, 888 P2d 1054,
1 Defendant does not make any separate arguments concerning admissibility
under ORS 136.425(1), which limits the admissibility of certain admissions
and confessions. See generally State v. Powell, 352 Or 210, 282 P3d 845 (2012)
(analyzing admissibility of statements made in response to promises by private
investigators that a theft investigation would be handled “in house” rather than
turned over to the police).
Cite as 269 Or App 623 (2015) 629
rev den, 321 Or 138 (1995) (citing State v. Neblock, 75 Or App
587, 590, 706 P2d 1020 (1985)); State v. Bounds, 71 Or App
744, 746-48, 694 P2d 566, rev den, 299 Or 732 (1985). An
admission is, however, considered involuntary if a police officer
makes statements that “could be reasonably construed
as an implied promise of treatment instead of incarceration
in return for a confession.” Neblock, 75 Or App at 590.
Defendant relies primarily on Pollard, in which
we reversed a denial of suppression—and which, defendant
asserts, involved directly analogous circumstances. The
state remonstrates that, notwithstanding certain similarities,
Pollard is materially distinguishable and that this case
is more akin to Neblock, in which we sustained a denial of
suppression. For the reasons that follow, we agree with the
state.
We begin with Pollard. There, the defendant was
convicted of murder by abuse of his infant, who had died of
“shaken baby syndrome.” 132 Or App at 540. After the infant
had been hospitalized, but before his death, the defendant,
who was not then under arrest, was interviewed at a police
station for approximately 40 minutes. Id. at 544. During
the interview, a detective suggested to the defendant that
he might have lost his temper with the infant and that the
defendant needed “to be up front with me or I can’t help
you.” Id. at 545. The officer indicated that it was normal to
become frustrated caring for an infant and told the defendant,
“let’s get it over with. Let’s get it done, get it up front
and get on with your life and put your family back together.”
Id. They then discussed the infant’s condition, and the officer
again stated that, “if something happened and you want
to get this thing up front,” the officer could help the defendant,
and that, “if you don’t, they’ll just take it to a Grand
Jury. That’s what we will do.” Id. at 546. The officer added,
“If the Grand Jury thinks that you’ve done this, it makes
it real rough.” Id. The defendant then began to discuss his
family’s history of abuse and that he and his wife wanted to
start counseling. The officer indicated that “we have excellent
people here to help with that. They’re available. But we
have to get through this portion of it before we can get to
that part.” Id. at 547.
630 State v. Spieler
In determining that the defendant’s subsequent
statements were involuntary, we concluded that the officer’s
statements, made before the infant died, “make sense
only if [the officer] was promising treatment of [the] defendant’s
abusive propensities in lieu of prosecution.” Id. at 548
(emphasis in original). In particular, we noted the “these
things happen” tenor of the conversation, and the statements
that the defendant could “get on with his life” and put
his family back together—along with the statement implying
that the grand jury did not need to be involved if the
defendant confessed—and concluded that there had been an
implicit promise of treatment instead of prosecution. Id. at
548-49.
In so holding in Pollard, we emphasized that the
circumstances there were dispositively different than those
in Neblock. In Neblock, a social worker employed by the
state investigated the defendant after a child made allegations
of sexual abuse. The social worker told the defendant
that there would be a police investigation and that the
police would be contacting him. She specifically indicated
that “treatment and incarceration were options that a court
would consider,” and indicated that the defendant “taking
responsibility” would be a factor in determining appropriate
treatment. 75 Or App at 589. The social worker, however,
made “no promises or guarantees.” Id. As we observed in
Neblock, the defendant acknowledged that there were no
explicit promises:
“Rather, he argues that the social worker presented information
about the way a confession would affect the court’s
choice among dispositional options in such a way as to constitute
an implied promise of treatment as opposed to incarceration
and that he had reasonably relied on that implied
promise as an inducement for his confession.”
Id. at 590.
The trial court in Neblock denied suppression of the
defendant’s confession, and we affirmed. We concluded that
there was “nothing in the statements made to [the] defendant
that could reasonably be taken as an implied promise
of immunity from prosecution should he confess. Advising
defendant that treatment is an option, or that confession is a
Cite as 269 Or App 623 (2015) 631
prerequisite to treatment, is not the same as promising him
immunity from prosecution.” Id. (emphasis added). That distinction
was critical to our consideration in Pollard, where
we explained:
“[The social worker in Neblock] had told defendant that
both treatment and incarceration were among the options
the court would consider and that ‘taking responsibility for
one’s own behavior’ would simply be one variable bearing
on the court’s choice among options.’ 75 Or App at 589-90.
Here, the detective’s promises were contemporaneous with
defendant’s confession, and the only reference to ‘options’
was the detective’s suggestion that if defendant was candid,
‘I can help you,’ but if he wasn’t, ‘they’ll just take it to a
grand jury.’ The quid pro quo was apparent.”
132 Or App at 548-49.
Defendant posits that the present case is fundamentally
similar to Pollard, in that the detective here suggested
that defendant’s actions may have been beyond his control
and due to his family history and that defendant needed
help or treatment. Defendant also characterizes Perkins’s
comments as implying that “no help could be forthcoming
until the defendant came out with the truth” and that “the
alternative to coming out with the truth and getting help
was going to a judge or the grand jury and criminal sanctions
coming into play.”
We agree that there are some similarities between this
case and Pollard. However, there are also critical differences—
differences that contradict defendant’s characterization of
the implications of Perkins’s comments to defendant. As
for similarities, certain aspects of the interrogation techniques
used were similar. Both Perkins and the detective
in Pollard suggested that the defendants’ actions might
have something to do with issues from their past, that the
defendants needed to discuss what happened to “get past
it,” and that the defendants needed “help,” with the strong
implication being that psychological help was needed. That
is, both officers indicated to both defendants that the defendants
needed to acknowledge what they had done in order
to be “helped.”
632 State v. Spieler
Nevertheless, this case is different from Pollard in
at least one dispositive respect. As noted, in Pollard, the
detective suggested that the defendant had two distinct
alternatives: He could either admit what had occurred and
get it “taken care of” and get “help” or, alternatively, if the
defendant did not do that, the case would be taken “to a
Grand Jury” and it would be “real rough.” 132 Or App at
546. That is, if the defendant cooperated and admitted his
conduct, he could obtain assistance “in lieu of prosecution.”
Id. at 548 (emphasis in original); see also id. at 549 (“The
quid pro quo was apparent.”).
Here, in contrast, there were no suggestions
by Perkins that a confession could, or would, preempt a
prosecution. Rather, Perkins’s statements presumed that
there would be a prosecution and pertained to the effect
of defendant’s conduct on that prosecution, e.g., references
to “having to tell a judge that, you know, it took a half
an hour to” get defendant to confess, and that Perkins
did not “want it to look bad on you that you, you know,
you’d lie up and down” about what had occurred. See also
Neblock, 75 Or App at 589 (noting that the social worker’s
remarks expressed that “ ‘taking responsibility for one’s
own behavior’ would simply be one variable bearing on the
court’s choice among options”); Bounds, 71 Or App at 747-
48 (officer’s statements to a defendant during questioning
that admitting conduct might be the best way to get help,
and that there would be charges but the prosecutor was
not going to “crucify” him, did “not amount to a promise
of immunity from prosecution rendering the confession
involuntary”).
In the totality of the circumstances of this case, that
distinction—the difference between a situation in which an
officer suggests that the results of a prosecution may be
more favorable to a defendant who admits what occurred
and a situation in which an officer suggests that no prosecution
will be commenced if the defendant admits what
occurred—is dispositive. The trial court correctly determined
that defendant’s statements to Perkins were voluntary
and, consequently, did not err in denying suppression
of those statements.
Cite as 269 Or App 623 (2015) 633
OBJECTION TO THE PROSECUTOR’S CLOSING
ARGUMENT AND MOTION FOR MISTRIAL
We proceed to defendant’s second assignment of
error, pertaining to the denial of his motion for a mistrial,
which was based on comments by the prosecutor in closing
argument, which, defendant contends, impermissibly shifted
the burden of proof and improperly referred to facts not in
evidence. The procedural circumstances are undisputed.
As noted, 269 Or App at ___, after M made the initial
disclosures of alleged abuse, she was interviewed at the
STAR Center. At trial, the state’s case consisted primarily
of recorded evidence of the pretext call and Perkins’s interview
of defendant, as well as testimony by M. In his opening
statement, the prosecutor told the jury that the recording of
M’s interview at the STAR Center would be in evidence.
During the state’s case-in-chief, Perkins testified that
the interview had been recorded. However, the STAR Center
interview recording was never introduced into evidence. Rather,
at trial, defense counsel raised a concern that the recording
was inadmissible hearsay, because the state failed to give adequate
notice of M’s statements pursuant to OEC 803(18a)(b).
In response, the prosecutor suggested that the recording was
likely to become admissible as containing prior consistent
statements if defense counsel chose to cross-examine M at trial
about the disclosures—and, thus, that the court did not need
to rule about the admissibility of the recording as hearsay at
that point. The trial court rendered no ruling.
The state did not thereafter seek to introduce the
STAR Center interview recording, and defense counsel ultimately
did not cross-examine M about the disclosures. Thus,
although the jury knew, from the state’s opening statement
and Perkins’s testimony, that the interview occurred and
had been recorded, the STAR Center recording itself was
never introduced into evidence.
During closing argument, and without the STAR
Center interview recording being in evidence, the prosecutor
made the following statements to the jury:
“I want to talk to you about credibility and what was
said and what was done.
634 State v. Spieler
“[M] took the stand, looked you all in the eye and told
you what happened. The defendant, sitting at that table
over there, ably represented, how many questions did the
defendant ask [M] about the details of the sex abuse? He
asked about maybe she was mad at her dad because he
spied on her. Not a single question did they ask about the
touching or the details of the touching. Not one. And you
can rest assured that if there would’ve been a discrepancy
between what [M] told you today, or yesterday, and what she
told the STAR interview that was recorded, you would * * *.”
(Emphasis added.) Defense counsel immediately objected
and, with the jury excluded, amplified the objection:
“A couple of things, Your Honor. That is burden shifting.
I don’t have to ask her any questions, I don’t have to
ask witness[es] anything. The prosecution is not allowed
to shift the burden on to [defendant] or me to do anything,
and that’s just what he did right there. You can—if there
was anything, any discrepancies he would have brought it
up. First objection.
“Second objection is earlier in the case, [the prosecutor]
said well [the defense] better not talk about that STAR
Center interview. He got it excluded; he kept it out of evidence,
so he better not bring up the STAR Center interview.
I said, of course, I don’t want to talk about the STAR
Center interview, that’s the whole reason that I moved to
have it suppressed and that’s the whole reason that it was
suppressed. Um, there’s a million reasons why that STAR
interview, STAR Center interview, could be suppressed.
There was discrepancies between what was said at the
STAR Center interview and what she said on the stand.
There was discrepancies between what she told the police
and—there were a lot of discrepancies. But whether or not I
choose to bring those up is entirely up to me; he can’t shift
that burden onto me and he can’t talk about evidence that
Your Honor excluded, and he can’t talk about it in closing.”
Defendant moved for a mistrial at that point. The
trial court observed that it had not ruled that the STAR
Center recording was inadmissible, and defense counsel,
while acknowledging that that was correct, remonstrated
that the recording had not been received into evidence and
that parties could not argue about things not received into
evidence:
Cite as 269 Or App 623 (2015) 635
“[It] was never received into evidence. When something’s
not received into evidence how do you—you don’t
get to argue about it. What we get to argue about is the
evidence that’s been received and is before the jury. It’s not
in evidence * * *.”
The court noted that there had been testimony that a
recording had been made of the victim’s interview at the
STAR Center. The prosecutor argued that defense counsel
“made a tactical decision not to use it. I’m—I can comment
on that.”
The trial court denied defendant’s motion for a mistrial.
After the court so ruled, the prosecutor, in continuing
his closing argument, did not complete the comment that
was interrupted by defendant’s objection. The prosecutor did,
however, later state to the jury, when discussing testimony
by defense witnesses who did not believe that defendant
had committed the alleged crimes, that these witnesses had
formed their opinions without having seen the STAR Center
recording.2 Ultimately, the jury found defendant guilty of
two counts of first-degree sexual abuse (Counts 4 and 6) and
one count of second-degree sodomy (Count 5), and acquitted
defendant on the remaining three counts of first-degree sexual
abuse.
On appeal, defendant contends that the trial court
abused its discretion in denying the motion for a mistrial,
relying on State v. Wederski, 230 Or 57, 368 P2d 393 (1962).
The state counters that Wederski is materially distinguishable
and that the circumstances here are more akin to those
in State v. Lincoln, 250 Or 426, 443 P2d 178 (1968), State v.
Galloway, 202 Or App 613, 620-21, 123 P3d 352 (2005), vac’d
on other grounds, 345 Or 315, 135 P3d 62 (2008), and State
v. Henderson, 242 Or App 357, 364-65, 255 P3d 661, rev den,
350 Or 571 (2011), in which either the Supreme Court or we
affirmed the denial of motions for mistrial that were based
on a prosecutor’s reference to a defendant’s failure to present
certain evidence.
2 The prosecutor had, in fact, played portions of the other recordings that
were admitted into evidence for these defense witnesses to hear, but the witnesses
had not altered their testimony that they did not believe defendant committed
the charged offenses.
636 State v. Spieler
The resolution is hardly clear-cut, because—as will
become apparent as we recount them—neither Wederski nor
any of the cases that the state invokes is precisely analogous.
In Wederski, the defendant was charged with having
committed a burglary in which, inter alia, 100 blank checks
had been stolen. Later, several of the checks were forged.
230 Or at 59. At trial, those checks were admitted into evidence,
and one of the defendant’s alleged accomplices testified
that they bore the defendant’s handwriting. Id. During
the defense closing argument, defense counsel emphasized
that the state had not presented expert testimony substantiating
that the handwriting was, in fact, the defendant’s. Id.
at 59-60. The prosecutor then responded in rebuttal closing:
“As to why we don’t have a handwriting expert used in the
trial, [defense counsel] did bring that up, and it requires
some comment I am sure.
“You know that there are certain rules of evidence and
certain requirements before we can use an expert witness.
Mr. Clair Alderson, if any of you are familiar, sat through
the entire trial and the right situation didn’t present itself
so that we could get his testimony on. You recall there was
no denial by [the defendant] that that was his handwriting
or perhaps we might have used our expert witness.”
Id. at 60. Defense counsel unsuccessfully moved for a mistrial,
asserting that the prosecutor’s reference had “improperly
(1) invited the jury to consider what a state’s witness
might have testified had he been called, and (2) at least indirectly
commented upon the defendant’s failure to take the
stand.” Id. The trial court denied that motion, and the jury
convicted the defendant.
The Supreme Court reversed and remanded, holding
that the trial court had erred in denying the mistrial
motion:
“Had [the court given a suitable curative instruction],
the presumably harmful effect of the district attorney’s
remarks might have been removed and the denial of the
motion for a mistrial might well have been within the permissible
limits of discretion. The instructions, however,
failed to caution the jury that they could not consider the
presence in the courtroom of silent witnesses in aid of the
Cite as 269 Or App 623 (2015) 637
state’s case. Neither did the court instruct the jury that the
defendant had no duty to prove or disprove anything; that
his plea of not guilty denied everything; and that the jury
could draw no inferences from the defendant’s failure to
contradict any evidence in the case. As the court failed to
admonish the jury to disregard the improper argument
of the district attorney, the case went to the jury with the
prejudicial statements approved, so far as the jury knew, by
the court’s silence.”
Id. at 60-61 (emphasis added). In rejecting the state’s arguments
that the error was harmless, the Supreme Court
observed:
“The state’s reference to evidence it might have produced,
but did not, was an open invitation for the jury to
speculate in a manner which has been denounced by this
court on several occasions. The state’s reference to the
defendant’s failure to deny the forgeries, innocently though
it may have been intended, could not have gone unnoticed
by a jury which had waited in vain through two days of
trial for the defendant to take the stand so they could hear
what he had to say about the case. Article I, § 12, of the
Oregon Constitution guarantees the privilege of the defendant
to remain silent. The privilege is meaningless if the
state may refer to the defendant’s silence with impunity.”
Id. at 61-62 (citations omitted).
Thus, the prosecution in Wederski both invited the
jury to rely on facts not in evidence that purportedly would
have bolstered the state’s case (viz., Alderson’s putative
expert testimony) and referred to the defense’s failure to
offer controverting evidence—in the form of the defendant’s
own testimony. With respect to the latter, the Supreme
Court referred to the trial court’s failure to give a cautionary
instruction that the jury “could draw no inferences from
the defendant’s failure to contradict any evidence in the case.”
Id. at 61 (emphasis added).3
3 See also State v. Macomber, 18 Or App 163, 169-70, 524 P2d 574 (1974) (prosecutor’s
comments in closing argument urging the jury to “ask [the defendant]
to explain various things” impermissibly commented on the accused’s silence,
contrary to Wederski, but trial court’s curative instruction remedied that conduct
so that “such harm as there was in the remarks was removed”).
638 State v. Spieler
Read literally, that emphasized proposition could be
understood to preclude prosecutors from ever commenting
on a defendant’s failure to present controverting evidence
(beyond the obvious preclusion of commenting on the defendant’s
silence). However, Lincoln, Galloway, and Henderson
demonstrate that there is no such categorical preclusion.
In Lincoln, the defendant was charged with the
burglary of a service station, and, at trial, the state called
some, but not all, of the police officers involved in the arrest
and investigation; some of the officers not called were in the
courtroom for trial. 250 Or at 427. In closing, defense counsel
argued to the jury that “the state had not disclosed all of
the information it possessed because all of the officers with
knowledge of the investigation were not called as witnesses.”
Id. In rebuttal, the prosecutor rejoined, “Counsel knows if he
wants to call any officers in the courtroom, he certainly can
do that.” Id. The defendant moved for a mistrial, which was
denied, and the Supreme Court affirmed:
“It is clear that the comment in question in no way
related to defendant’s failure to take the witness stand.
There is no rule which prevents the state from commenting
on defendant’s failure to call witnesses other than the defendant
which were available to him.”
Id. (emphasis added). In sum, in the context of responding to
defense counsel’s statements to the jury that the prosecution
had not offered testimony from certain witnesses, the court
concluded that the state was not precluded from noting that
defendant had the ability to call those witnesses.
The emphasized portion of the statement in Lincoln,
viewed in isolation, could be understood to be in tension with
the similarly categorical proposition from Wederski quoted
above: If the jury cannot draw inferences from “the defendant’s
failure to controvert any evidence in the case,” then
why or how can the state comment on a defendant’s failure to
present such controverting evidence? Lincoln does not refer
to Wederski. The resolution, we believe, lies in the meaning
of the use of “the defendant” in Wederski. If “the defendant”
is understood to connote, generically, “the defense,” then
Wederski and Lincoln are, indeed, incompatible. If, however,
that reference in Wederski to “the defendant” meant
Cite as 269 Or App 623 (2015) 639
the defendant personally—that is, that the jury can draw
no inferences from the defendant’s failure to controvert the
state’s proof by way of his or her own testimony—then the
cases are not necessarily inconsistent. Given the context of
Wederski, and subject to the amplification we offer below, we
believe that the latter understanding is correct.
Galloway—which relied on Lincoln and distinguished
Wederski—comports with that understanding.
There, the defendant was charged with a variety of serious
offenses related to “two fire-setting incidents.” 202 Or App
at 615. The evidence at trial included testimony from a jail
deputy that, after the defendant had been taken into custody,
the deputy had heard another inmate ask the defendant
if he had an alibi, and the defendant had replied,
“I told my girlfriend what to say to the cops.” Id. at 616.
Apparently in reference to that testimony, in closing argument,
the prosecutor commented, “In this trial, you folks
haven’t heard a single thing about alibi.” Id. at 620. Defense
counsel subsequently unsuccessfully moved for a mistrial,
and we affirmed:
“We find Wederski to be inapplicable here. In that case,
the prosecutor referred specifically to the defendant’s failure
to deny the handwriting as his own. The prosecutor’s
arguments to the jurors in the present case that they had
heard no testimony regarding alibi was not a comment on
defendant’s decision to remain silent, but rather to alert the
jury that the defense had not put on any evidence regarding
an alibi. ‘There is no rule which prevents the state from
commenting on defendant’s failure to call witnesses other
than the defendant which were available to him.’ [Lincoln,
250 Or at 427.] Moreover, the court instructed the jury in
this case not to place any weight on defendant’s decision not
to testify. The trial court did not err in denying defendant’s
motion for mistrial.”
Id. (emphasis in original).
Thus, in Galloway, in the context of responding to
evidence concerning a possible alibi, the prosecutor was
not precluded from commenting on the defense’s failure to
present the putative alibi witness. See also State v. Wright,
12 Or App 73, 77-78, 504 P2d 1065 (1973) (affirming denial
of mistrial based on prosecutor’s comment relating to the
640 State v. Spieler
defendant’s failure to call a witness in support of his alibi
defense); State v. Goodin, 8 Or App 15, 23, 492 P2d 287
(1972) (affirming denial of mistrial based on prosecutor’s
comment that the defendant had failed to call a witness who
had been brought from the state penitentiary to testify at
the defendant’s request).
Finally, in Henderson, the defendant, who was
charged with murder, raised a defense of extreme emotional
disturbance, on which he bore the burden of proof. ORS
163.135(1). The focus in that case was on the defendant’s state
of mind when he crashed a vehicle into the wall of his garage,
killing his wife. Henderson, 242 Or App at 359. Defense counsel
cross-examined an investigating officer, Burdick, about
damage to the garage wall, eliciting testimony that Burdick
had not taken certain measurements. On redirect, the prosecutor
elicited further testimony from Burdick that neither
the state nor the defense had asked the officer to take such
measurements. Defendant objected and moved for a mistrial,
arguing that the question improperly shifted the burden to
gather evidence onto defendant. Id. at 363.
The trial court denied the motion, noting that, in
light of the defense burden to establish the extreme emotional
disturbance defense “and given that by its questions
of this [witness] it has suggested that there would be evidence
available that is not otherwise available due to the
inadequacies of the state’s investigation, this court considers
it to be appropriate rebuttal.” Id.
On appeal, referring to both Lincoln and Galloway,
we affirmed. We concluded:
“Although Lincoln involved a prosecutor’s comment on a
defendant’s ability to call witnesses, its reasoning applies
equally to the issue in this case, that is, defendant’s ability
to procure the measurements of the damage to the garage
wall that was caused by his vehicle. The prosecutor’s question
to Burdick on redirect examination * * * alerted the
jury to the fact that defendant could have procured the evidence
that defendant had faulted the police for not gathering.
The prosecutor was entitled to rebut defendant’s
implication that the state had failed to gather potentially
exculpatory evidence because the investigating officers had
Cite as 269 Or App 623 (2015) 641
jumped to the conclusion that defendant had intentionally
murdered the victim. The prosecutor’s narrow question to
Burdick directly rebutted that implication.”
Id.
Wederski and Lincoln and their progeny are not easily
susceptible to principled extension and application, not
the least because the baseline precedents simply announced
categorical propositions without circumstantial nuance or
limitation. Further, there are material procedural variations
among the cases. Still, upon careful consideration of
those cases, we conclude that they reasonably yield several
not-inconsistent principles.
First, one fundamental aspect of Wederski is not
qualified by any of the subsequent case law: The prosecutor
cannot either implicitly or explicitly invite the factfinder to
consider nonadmitted evidence “in aid of the state’s case.”
Wederski, 230 Or at 61. That is, to the extent that the prosecution
either fails to, or is unable to, present testimony (e.g.,
the handwriting expert, Alderson, in Wederski) or other evidence,
the prosecutor cannot refer to such putative evidence
in an effort to bolster the state’s case.
Second, another fundamental principle of Wederski
is that, in most circumstances, see 269 Or App at ___ n 6,
references to the defendant’s silence or failure to testify are
impermissible.
Third, read in light of Lincoln and its progeny,
Wederski limits the circumstances in which a prosecutor can
comment on the defendant’s failure to present or contradict
evidence, but does not categorically prohibit such comments.
In Wederski, the court recognized that certain comments
about a defendant’s failure to present evidence may reasonably
cause the factfinder to misapprehend and misallocate
the burden of proof.4 However, a wholesale prohibition on all
4 For examples of other impermissible prosecutorial argument pertaining to
the burden of proof, see, e.g., State v. Sanchez-Jacobo, 250 Or App 621, 632-35,
282 P3d 880 (2012), rev den, 353 Or 280 (2013) (prosecutor began closing argument
with the statement “at this point in trial, the presumption of innocence will
evaporate”); State v. Worth, 231 Or App 69, 72-73, 218 P3d 166 (2009), rev den,
347 Or 718 (2010) (the prosecutor made several statements to the effect that “the
presumption of innocence is over”).
642 State v. Spieler
such comments would unfairly impair prosecutors’ ability to
counter certain matters raised or implicated by the defense.
Thus, when the defense raises matters, such as alibi as in
Galloway or Wright, on which, as a practical matter, the
defendant bears the initial burden of production, but fails
to present any evidence, the prosecution can comment on
that deficiency. Similarly, when an affirmative defense has
been raised, as in Henderson, the prosecutor is permitted to
respond, by commenting on a defendant’s failure to meet the
burden of production or persuasion.5
Further, it is clear from Lincoln and Henderson
that, when the defense makes an argument that the state
has failed to present certain evidence—with the implication
that such evidence would have supported the defense
or undermined the state’s case—the prosecutor can respond
by noting that the defense has the ability to produce it. That
principle, indeed, is the obverse of the first principle derived
from Wederski noted above: Just as the prosecutor cannot
invite the factfinder to consider nonadmitted evidence in aid
of the state’s case, if defense counsel invites the factfinder to
consider nonadmitted evidence as undermining the state’s
case, the prosecutor is entitled to respond, again, so long
as that response comports with the proper allocation of the
burden of proof.6
We turn to the application of those principles in this
case. Here, the prosecutor’s comment—“And you can rest
5 When an affirmative defense is raised, the defendant bears the burden of
proof on that defense by a preponderance of the evidence. See ORS 161.055(2).
With respect to other defenses, including alibi defenses, the state bears the burden
of disproving them beyond a reasonable doubt. ORS 161.055(1). However,
even if the state bears the burden of proof to disprove a defense, it nonetheless
must be raised by the defendant, either by notice in writing by the defendant
before trial, or by way of evidence presented at trial. ORS 161.055(3).
6 Of course, as we know from Wederski, the prosecutor nonetheless generally
cannot respond by commenting on the defendant’s failure to testify or an invocation
of the right to remain silent. 230 Or at 60. Compare State v. Guritz, 134
Or App 262, 268-69, 894 P2d 1235, rev den, 321 Or 560 (1995) (defense counsel
“opened the door” to comment about the defendant’s termination of police interview
by invocation of his right to remain silent by “criticizing the lack of depth of
the interview”), with State v. Reineke, 266 Or App 299, 309, 337 P3d 941 (2014)
(“[E]ven if a defendant opens the door to evidence of the defendant’s silence, a
prosecutor cannot argue that the defendant is guilty because he or she invoked
the right to remain silent.”).
Cite as 269 Or App 623 (2015) 643
assured that if there would have been a discrepancy between
what [M] told you today or yesterday, and what she told the
STAR interview, that was recorded, you’d * * *”—referred to
defendant’s failure to present potentially controverting evidence
that the complainant had made prior inconsistent statements.
An implication—perhaps an inescapable implication—
is that M’s account had remained consistent throughout. The
question thus narrows: Was the prosecutor’s statement an
impermissible comment under the first Wederski principle
described above, or a permissible one under the third principle,
as derived from the Lincoln line of cases?
We conclude that the prosecutor’s remarks violated
the first principle and did not comport with the third. As
described above, the prosecutor referred to the STAR Center
recording in his opening statement, but then, after defendant
raised the potential inadmissibility of the recording
because of an inadequate OEC 803(18a)(b) notice, the state
discontinued its efforts to offer the recording into evidence.
Most significantly, at no point did defense counsel ever argue
about the STAR Center recording to the jury, or suggest in
any way that it would have undermined the state’s case or
enhanced the defense.7
Given those circumstances, we conclude that the
prosecutor’s reference to the STAR Center recording was
not fair comment in response to a defense argument as to
the state’s purported failure to present certain evidence;
nor was it a permissible comment on the defense’s failure
to present certain evidence on a matter on which defendant
bore the initial burden of production or the ultimate burden
of proof. Rather, the remarks here were analogous to the
prosecutor’s reference to the nontestifying handwriting analyst
in the courtroom in Wederski: It was “an open invitation
for the jury to speculate,” Wederski, 230 Or at 60, that unadmitted
evidence was favorable to the state as confirming
7 In fact, after defendant objected to the admission of the interview recording
and the prosecutor agreed not to offer it in evidence, see 269 Or App at ___,
the prosecutor told the court, “If in argument defense counsel says [‘]where’s the
tape[?’], that would be a serious problem.” Defense counsel agreed that he would
not do that, and the court stated that, if defense counsel “raises that in argument[,]
I’ll give the jury an instruction that [defense counsel] objected to the
admission of the tape.”
644 State v. Spieler
the historical consistency of the complainant’s accounts.
Further, as in Wederski, the trial court here “failed to caution
the jury that they could not consider the presence in the
courtroom of silent witnesses in aid of the state’s case.” Id.
at 61.8 Accordingly, the trial court erred in overruling defendant’s
objection to the prosecutor’s remarks.
Our inquiry reduces to whether, given that error,
coupled with the failure to give any curative instruction of
the sort mandated by Wederski, the trial court was obligated
to grant the motion for mistrial. Or, more precisely, with
reference to the applicable standard of review, did the trial
court’s denial of a mistrial in these circumstances constitute
an abuse of discretion? See, e.g., State v. Worth, 231 Or App
69, 74, 218 P3d 166 (2009), rev den, 347 Or 718 (2010) (“We
review a trial court’s decision to deny a mistrial due to a prosecutor’s
conduct for abuse of discretion.”). The touchstone of
the trial court’s discretion, and of our review, is an assessment
of the likelihood that the prosecutor’s uncorrected comments
so affected the jury’s consideration as to “deny [defendant]
a fair trial.” State v. Davis, 345 Or 551, 583, 201 P3d
185 (2008); see also State v. Farokhrany, 259 Or App 132, 137-
38, 312 P3d 584 (2013) (“If an objectionable remark, properly
challenged, is likely to influence the jury, the trial court’s failure
to correct it may be a ground for reversal.”).
Here, the state’s only harmless error argument is
that the jury was properly instructed not to draw a negative
inference from defendant’s failure to testify and to base its
verdicts on the evidence, and that the lawyers’ statements
were not evidence.9 The jury was also properly instructed
8 Given the trial court’s overruling of defendant’s objection to the prosecutor’s
comment, it was not incumbent on defense counsel to seek a curative instruction,
because such a request would have been futile. See Worth, 231 Or App 77 n 4
(“Here, given the court’s ruling that the prosecutor’s * * * statements constituted
permissible argument, we conclude that a request for further curative instructions
would have been futile.”).
9 The state does not argue that the evidence of defendant’s purported guilt,
including his broadly inculpatory statements during the pretext call and during
the police interview, was so overwhelming as to render the prosecutor’s comments
harmless. In that regard, we note that the jury acquitted defendant on
three counts (each charging first-degree sexual abuse), that defendant was convicted
by 10-2 verdicts on the remaining counts, and that that result was reached
only after the jury twice attempted to return a verdict that revealed that, in fact,
there was significant disagreement on the jury as to most of the counts.
Cite as 269 Or App 623 (2015) 645
on the burden of proof and that it needed to determine guilt
beyond a reasonable doubt. We are unpersuaded that such
generic instructions meaningfully remedied the prejudicial
impact of the prosecutor’s comments. Specifically, nothing
in the generic instructions given by the court in this case
addressed the problem of the jury being invited—without
contradiction from the court—to speculate on, and draw
inferences negative to the defense about, the contents of the
STAR Center recording. That is, the jury instructions here
did not mitigate the “presumably harmful effect” of the prosecutor’s
statements. Accord Worth, 231 Or App at 79 (noting
that “[t]he overruling of [the defendant’s] objection gave the
jury reason to think that the prosecutor’s statement was,
in fact, a correct statement of the law” and concluding that
the trial court’s generic instructions as to the presumption
of innocence “did not provide guidance as to the longevity
of the presumption of innocence, such as to remove confusion
about whether the presumption of innocence extended
through jury deliberations”).
Nor did the prosecutor’s improper argument pertain
to some incidental or collateral matter. Rather, the complainant’s
credibility, including with respect to the accuracy
of her account as to the timing of certain events—which was
material to whether she was under 14 at the time of each of
the charged offenses, as charged in each count—was critical
to the prosecution’s case.10 The prosecutor’s effort to bolster
the complainant’s credibility by reference to the unadmitted
evidence, as implicitly confirming the consistency of the
complainant’s account, bore directly on that issue. Compare
State v. Moller, 217 Or App 49, 174 P3d 1063 (2007) (erroneously
admitted evidence of the defendant’s refusal to consent
to a search was not harmless “in light of the fact that it
was central to the state’s case and in light of the close jury
vote by which he was convicted”), with State v. Dalby, 251
Or App 674, 284 P3d 585 (2012), rev den, 353 Or 209 (2013)
(testimony was erroneously admitted that the defendant
10 Although defendant, in the police interview, acknowledged that certain
sexual contacts with the complainant had occurred, he indicated that he believed
they occurred when the complainant was 14 or 15 years old. The complainant, for
her part, testified that incidents of abuse had occurred over a significantly longer
time period.
646 State v. Spieler
had invoked his right to counsel, but the error was harmless
because it had little to do with the only seriously disputed
factual issue in the case). Finally, the prejudicial impact of
the error was compounded by the prosecutor’s additional
reference to the unadmitted STAR Center recording when,
in closing argument, the prosecutor stated that certain witnesses
who testified on defendant’s behalf had never seen
the STAR Center recording. See 269 Or App at ___, necessarily
implying that, if they had, the content of the recording
would have altered their testimony.
Given the totality of the foregoing circumstances,
we conclude that “the effect of the prosecutor’s conduct
was to deny [defendant] a fair trial.” Davis, 345 Or at 583.
Accordingly, the trial court erred in denying defendant’s
motion for mistrial.

Outcome: Convictions on Counts 4, 5, and 6 reversed and
remanded; otherwise affirmed.

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