State v. Lundbom
| Decision Date | 10 May 1989 |
| Citation | 773 P.2d 11,96 Or.App. 458 |
| Parties | STATE of Oregon, Respondent, v. Gregory Lynn LUNDBOM, Appellant. N77786; CA A47706. |
| Court | Oregon Court of Appeals |
John Henry Hingson, III, Oregon City, argued the cause and submitted the brief for appellant.
Timothy Sylwester, 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.
Defendant appeals his conviction for driving under the influence of intoxicants. ORS 813.010. He assigns as error, inter alia, the trial court's failure to sustain his objections to the improper remarks of the prosecutor and its denial of his motion for a new trial on grounds of prosecutorial misconduct. 1 We reverse and remand for a new trial.
During the State's closing argument, this exchange occurred:
Defendant did not request the court to give curative instructions or to declare a mistrial on the ground that the prosecutor had referred to defendant's expert witness and counsel as "pimps." He did, however, move for a new trial on grounds of misconduct of the prevailing party. ORS 136.535(4). 2 The issue is whether the trial court committed reversible error when it denied that motion after failing to sustain the objections to the prosecutor's remarks.
We conclude that it did. Although control of counsels' arguments is within the discretion of the trial court, that discretion is not unbounded. State v. Seeger, 4 Or.App. 336, 338, 479 P.2d 240 (1971). 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. State v. Seeger, supra, 4 Or.App. at 338, 479 P.2d 240.
In this case, the prosecutor's remarks were not only inappropriate in and of themselves, but highly likely to influence the jury. The essence of his argument was that the jury should find defendant guilty, because his counsel was a "pimp" who knowingly hired a liar....
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Warren v. Baldwin, s. CV
...off the argument and instructing the jury to disregard petitioner's prior behavior on the issue of recklessness. See State v. Lundbom, 96 Or.App. 458, 462, 773 P.2d 11, rev. den. 308 Or. 382, 780 P.2d 735 (1989) (failure to sustain objections to prosecutor's improper arguments required reve......
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State v. Veatch
...action in response to a mistrial motion, preservation principles do not demand that the motion be made immediately); State v. Lundbom, 96 Or.App. 458, 462, 773 P.2d 11, rev. den., 308 Or. 382, 780 P.2d 735 (1989) (same). When the court gives a curative instruction without waiting for an ant......
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State v. Chitwood
...it based on a determination that it was persuaded by the evidence that defendant had committed the charged crimes. See State v. Lundbom , 96 Or. App. 458, 461, 773 P.2d 11, rev. den. , 308 Or. 382, 780 P.2d 735 (1989) (improper for prosecutor to make arguments "calculated to elicit an emoti......
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State v. Wilson
...objection. Because defendant's objection was overruled, his motion for a mistrial on the above ground was timely. See State v. Lundbom, 96 Or.App. 458, 773 P.2d 11, rev. den. 308 Or. 382, 780 P.2d 735 (1989). We conclude, however, that the trial court did not err in overruling that objectio......
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Pre-trial discovery and motion practice
...1. Any statement, remark, or insinuation that is intended to discredit defense counsel in front of the jury. State v. Lundbom , 96 Or. App. 458, 773 P.2d 11 (1989) (referring to defense counsel as “pimp” and “hired gun”); Carter v. State , 356 So. 2d 67 (Fla. App. 1978) (prosecutor referred......