Argued and Submitted: November 25, 2013.
Washington County Circuit Court. C101164CR. D. Charles Bailey, Jr., Judge.
Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jennifer S. Lloyd, Senior Assistant Attorney General, argued the cause for respondent. On the briefs were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[266 Or.App. 301] NAKAMOTO, J.
Defendant appeals a judgment convicting him of murder, ORS 163.115, raising 15 assignments of error. We write to address defendant's fourth assignment of error, in which he contends that the trial court erred in failing to sustain his objection to the prosecution's PowerPoint presentation in its closing argument, which he contends impermissibly commented on his invocation of his right to remain silent. For the reasons below, we agree with defendant and, accordingly, reverse and remand for a new trial.
I. FACTS AND PROCEDURAL HISTORY
Defendant called 9-1-1 and told the dispatcher to send a coroner and a police officer to a house on Barcelona Way. When emergency responders and deputy sheriffs arrived, they found the victim, defendant's mother, lying in her kitchen with a pool of blood around her head and a phone cord around her neck. Defendant remained outside the house with Deputy DuPont, who requested during their conversation that defendant
go to the sheriff's office and talk to Detective Rau, the main detective assigned to the investigation. Defendant agreed but told DuPont, while looking at the house, that he " wasn't talking about that." DuPont took defendant to the sheriff's office, where they talked for approximately 30 minutes until detectives Rau and Hays entered the interview room.
Rau informed defendant that they intended to apply for a warrant or to get consent to search the house and asked for defendant's consent. Defendant first replied that the house was not his. However, in response to questions, defendant said that he had been staying at the victim's house for the past several nights, and Rau said that he thought that defendant had the authority to consent to a search. Defendant reviewed and decided to sign a consent form for a search of the house.
Rau then gave defendant Miranda warnings and asked whether defendant wanted to talk. Defendant stated [266 Or.App. 302] that he did not want to talk and invoked his right to counsel. Defendant was then arrested and taken to a holding cell. Rau and Hays later returned to the holding cell, and Rau told defendant that they were going to charge him with murder. Defendant was later charged by indictment with intentional murder.
At trial, defense counsel elicited testimony from Hays on cross-examination that he had not recorded the interactions with defendant at the sheriff's office but that technology had been available to do both audio and video recordings. During redirect, the prosecutor indicated that she had a matter for the court. With the jury out of the courtroom, the prosecutor argued that defendant's questioning of Hays had opened the door for the state to ask Hays why he had not recorded defendant at the sheriff's office, because the jury had been left with the impression, and the defense could argue, that Hays " willfully neglected" to record defendant or that the detectives " couldn't do their job." Defense counsel responded that he had not opened the door and that the focus of his questioning was on the accuracy of what Hays remembered about defendant's reaction when he was told that he was being booked for murder.
The trial court concluded that defense counsel had opened the door to an explanation by Hays regarding the lack of a recording but told counsel that it was going to limit the state's redirect on that subject to one question: " Why didn't you videotape or record your conversation with the defendant when you went in to tell him he was under arrest?" The court warned defense counsel that, if he argued to the jurors in closing argument that the detectives had the means but failed to use them to record defendant, it would allow the state to reopen its case and present evidence that defendant had invoked his right to remain silent. The court then directed Hays to state the response that he would be giving to that question. Apparently satisfied with that response, the court brought the jury back into the courtroom.
The prosecutor then asked Hays why he had not recorded his interactions with defendant, eliciting an answer that the reason he had not done so was because defendant had invoked his right to remain silent:
[266 Or.App. 303] " Q Detective Hays, why didn't you use any of the videotape or other audio recording devices to record your interactions with the ...