State v. Grenawalt
| Decision Date | 24 June 1987 |
| Citation | 738 P.2d 232,86 Or.App. 96 |
| Parties | STATE of Oregon, Respondent, v. Carl Ray GRENAWALT, Appellant. C86-07-33237; CA A41864 (Control); CA A41950. |
| Court | Oregon Court of Appeals |
John P. Daugirda, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.
This is a criminal case in which defendant seeks reversal of his conviction for burglary in the first degree. The only issue is the prosecutor's misconduct, which allegedly resulted in an unfair trial. We reverse and remand for a new trial.
Defendant and codefendant Favro were tried by a jury for burglary in the first degree. They were involved in the crime with another codefendant, Endres, who had been convicted in a separate trial. The prosecutor stated in his opening statement:
Both defendants promptly moved for a mistrial, and the trial court denied the motions on the ground that the prosecutor's remark was an inadvertent slip of the tongue and was not prejudicial. The trial continued, and the jury found defendant guilty of burglary in the first degree.
A trial court has wide discretion in granting or denying a motion for a mistrial. Its discretion depends on the particular facts of each case, including any curative instructions. State v. Reynolds, 43 Or.App. 619, 627, 603 P.2d 1223 (1979), aff'd 289 Or. 533, 614 P.2d 1158 (1980); State v. McFarland, 30 Or.App. 93, 97-98, 566 P.2d 539, rev. den. (1977). The discretion is not limitless, however. State v. Williams, 49 Or.App. 893, 897, 621 P.2d 621 (1980). When it appears that a defendant's ability to obtain a fair trial has been impaired, denial of a mistrial is error. State v. White, 303 Or. 333, 736 P.2d 552 (1987); State v. Williams, supra, 49 Or.App. at 897, 621 P.2d 621.
The prosecutor's remark, whether inadvertent or not, clearly suggested to the jury that because a co-defendant...
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Baxter v. State
...is no showing here that the trial court's correction was not sufficient to ensure defendant a fair trial.") Cf. State v. Grenawalt, 86 Or.App. 96, 98-99, 738 P.2d 232, 233 (1987) ("[t]he fact that a prosecutor's conduct is not intentional does not affect a defendant's fundamental right to a......
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...fact that a prosecutor's conduct is not intentional does not affect a defendant's fundamental right to a fair trial." State v. Grenawalt, 86 Or.App. 96, 98, 738 P.2d 232, rev. den., 304 Or. 405, 745 P.2d 1225 The context in which a reference is made to the defendant's invocation of a consti......
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...not relevant to the question whether the prosecutor's actions affected defendant's right to a fair trial. See, e.g., State v. Grenawalt, 86 Or.App. 96, 98, 738 P.2d 232, rev. den.,304 Or. 405, 745 P.2d 1225 (1987). In Grenawalt, the defendant moved for a mistrial after the prosecutor, in hi......
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...fact that a prosecutor's conduct is not intentional does not affect a defendant's fundamental right to a fair trial." State v. Grenawalt , 86 Or. App. 96, 98, 738 P.2d 232, rev. den. , 304 Or. 405, 745 P.2d 1225 (1987). One such negative inference can be the erosion, or misconstruction, of ......