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State v. Brunnemer

Court of Appeals of Oregon

August 2, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
DOUG WILLIAM BRUNNEMER, Defendant-Appellant.

          Argued and submitted March 16, 2016

         Klamath County Circuit Court 1200350CR, 1200341CR; Dan Bunch, Judge.

          Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Susan G. Howe, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Garrett, Presiding Judge, and Lagesen, Judge, and Duncan, Judge pro tempore. [*]

         [287 Or.App. 183] Case Summary:

         Defendant appeals judgments of conviction for multiple domestic-violence offenses against his then-wife, C. He assigns error to the trial court's failure to sustain defense objections or grant a mistrial in response to the state's closing argument, in which the prosecutor made comments critical of defense counsel and asserted that the defense was "not asking for justice." Defendant argues that the prosecutor's comments were improper in that they criticized defendant's counsel for holding the state to its burden, questioning C's credibility, and alluding to the presumption of defendant's innocence.

         Held:

         The prosecutor's statements crossed the boundary of permissible argument and prejudiced defendant's right to a fair trial. Specifically, in the context of the state's entire closing argument, the prosecutor's statement that the defense was "not asking for justice" improperly urged the jury to find defendant guilty based, not exclusively on the strength of the state's evidence, but on a desire to punish defense counsel for attempting to undermine C's credibility at trial. The trial court's subsequent failure to take ameliorative action to correct the error was not harmless, because it gave the prosecutor's comments an unjustified air of validity.

         Reversed and remanded.

         [287 Or.App. 184] GARRETT, P. J.

         Defendant appeals judgments of conviction for multiple domestic-violence offenses. He assigns error to the trial court's failure to sustain defense objections or grant a mistrial in response to the state's closing argument, in which the prosecutor made comments critical of defense counsel and asserted that the defense was "not asking for justice." We conclude that the prosecutor's statements crossed the boundary of permissible argument and prejudiced defendant's right to a fair trial. Accordingly, we conclude that the trial court abused its discretion, and we reverse and remand the judgments.[1]

         The relevant facts are procedural and undisputed. The convictions underlying this appeal arose from two criminal cases against defendant. In the first case, defendant was charged with one count of felony fourth-degree assault, ORS 163.160(3), and one count of strangulation, ORS 163.187. In the second case, defendant was charged with second-degree kidnapping, ORS 163.225; two counts of first-degree burglary, ORS 164.225; unlawful use of a weapon, ORS 166.220(1)(a); three counts of felony fourth-degree assault, ORS 163.160(3); two counts of strangulation, ORS 163.187; and menacing, ORS 163.190. The two indictments alleged that all of the counts for assault, strangulation, and menacing were offenses constituting domestic violence. ORS 132.586(2).

         The cases were consolidated and tried to a jury. The state's case was based largely on the testimony of defendant's then-wife, C, along with testimony from police ...


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