State v. Stull

• Decision Date: 06 March 2019
• Docket Number: A164154
• Citation: 438 P.3d 471,296 Or.App. 435
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Barry Joe STULL, aka Barry Joe Stully, Defendant-Appellant.
• Court: Oregon Court of Appeals

296 Or.App. 435

438 P.3d 471

STATE of Oregon, Plaintiff-Respondent,

v.Barry Joe STULL, aka Barry Joe Stully, Defendant-Appellant.

A164154

Court of Appeals of Oregon.

Argued and submitted January 7, 2019

March 6, 2019

Brett J. Allin, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Barry Joe Stull filed the supplemental brief pro se.

Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

JAMES, J.

Defendant appeals a judgment of conviction for attempted assault on a public safety officer, resisting arrest, and second-degree criminal mischief, raising nine related assignments of error, all alleging that statements made by the prosecutor during closing argument that commented on defendant's courtroom behavior were improper. Defendant argues that the trial court abused its discretion by failing to strike the comments from the jury's consideration. We agree, and, concluding that the failure to strike was not harmless, accordingly reverse and remand.

Defendant's prosecution arose from an incident that occurred at Portland City Hall during a public meeting of the Portland City Council. Defendant entered the chambers and spoke to the crowd while being filmed by an associate. After about 20 minutes, one of the commissioners attempted to calm defendant and the encounter escalated into shouting, which drew the response of the police.

Portland Police Officer Engstrom arrived in the chambers, followed shortly by two other officers. Defendant approached the officers, yelling at them. The officers told defendant to back up and grabbed defendant's left hand. Soon thereafter, according to trial testimony, defendant pulled an officer's hand off his left arm and threw two right hooks at an officer, hitting his arm and shoulder area. One officer then grabbed defendant and wrestled him to the council desk. After handcuffing defendant, the officers wanted to walk him from the council chamber but defendant refused to walk, so an officer placed him on the table in front of the council desk.

Ultimately, as the officers were escorting defendant out of the building, according to officer testimony, he kicked one of the officers in the shin repeatedly. After the officers placed defendant in a patrol car, defendant kicked and tore into the seatbelt assembly, breaking it in several places. As defendant testified, he "tore the hell out of that police car" and "did as much damage * * * as [he] possibly could."

Defendant chose to testify in his own defense, as well as to represent himself throughout a nearly weeklong trial—a trial that was obviously, and understandably, made more difficult by defendant's courtroom behavior. In closing argument, the prosecutor repeatedly encouraged the jury to consider defendant's behavior in the courtroom—when defendant was not on the witness stand—in assessing whether defendant committed the alleged crimes at city hall. Among other things, the prosecutor stated:

"Now, you'll see this video, and I've moved it up to about the 21-minute mark. You've already listened to its entirety once, because the first 20 minutes of that video is just [defendant] doing, on November 25th, what he did here today, create a scene.

"* * * * *

"He stayed there and he continued to talk, to rant, to revel in that moment. And he got worked up then, just as you saw him get worked up in court a couple of times."

After that second comment defendant objected, stating, "The demeanor of the Defense counsel has nothing to do with the witness or the evidence." The trial court overruled the objection, indicating that the prosecutor's statement was permissible closing argument. The prosecutor continued, stating, among other things during closing argument:

• "You saw as [defendant] advanced at Officer Engstrom [at trial], yelling at him, pointing at him, walking towards him to the point where the Judge had to order him back. He got worked up then just as he did in that City Hall."

• "In [defendant]'s head, he's the star of the show. He wants that spotlight. He wants that attention and he wants that validation. And he worked himself up—he worked himself up on a—remember, he worked himself up this week."

• "[I]t is clear from * * * [defendant's] behavior in court, that he didn't lose control on [the charged occasion]."

• "So [defendant] reveled in that same attention, the show, the spectacle, just like he did in court over the past week."

• "You saw how aggressive he was in the video. You saw him show signs of that aggression here in the courtroom."

The jury convicted defendant, and this appeal followed. On appeal, now represented by counsel, defendant argues that the trial court abused its discretion in permitting the prosecutor to advance a closing argument that contained the statements set forth above. Specifically, defendant argues that his behavior in the courtroom, when not testifying on the witness stand, was not evidence and the prosecutor's argument was, therefore, impermissibly asking the jury to consider facts not in evidence.

In response, the state first agrees that defendant's single objection adequately preserved the issue, and in light of the trial court's ruling, any further objections to later remarks in closing would have been futile. See State v. Logston , 270 Or. App. 296, 302, 347 P.3d 352 (2015). We agree with the state's concession on that point. Although it is a close call, we interpret defendant's objection that "[t]he demeanor of the Defense counsel has nothing to do with the witness or the evidence" to adequately set up the dichotomy of what is evidence from what is not evidence and to sufficiently argue that his demeanor was separate and distinct from "evidence," so as to put the issue before the trial court. See State v. Wyatt , 331 Or. 335, 343, 15 P.3d 22 (2000) (The purposes of preservation are "to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.").

We review a trial court's decision regarding control of closing argument for an abuse of discretion. Cler v. Providence Health System-Oregon , 349 Or. 481, 487, 245 P.3d 642 (2010) (relying on R. J. Frank Realty, Inc. v. Heuvel , 284 Or. 301, 306, 586 P.2d 1123 (1978) ). "In general, in presenting closing arguments to the jury, counsel has ‘a large degree of freedom’ to comment on the evidence submitted and urge the jury to draw any [and] all legitimate inferences from that evidence." Cler , 349 Or. at 487-88, 245 P.3d 642 (quoting Huber v. Miller , 41 Or. 103, 115, 68 P. 400 (1902) ). However, that freedom is not without limitation—and one key limitation on closing argument is the prohibition of counsel making "statements of facts outside the range of evidence." Cler, 349 Or. at 488, 245 P.3d 642 ; see also Huber , 41 Or. at 115, 68 P. 400 ; see generally John H. Wigmore, 6 Evidence in Trials at Common Law § 1807 (Chadbourn rev. 1979) ("[C]ounsel must not make assertions as to facts of which evidence must have been introduced but has not been or will not be introduced." (Emphasis omitted.)); Trial , 88 CJS 353 § 309 (2008) ("Counsel must be confined to the issues and the evidence, and will not be allowed to comment on or state facts not in evidence or within the issues.").

Much of the parties' arguments before this court have concerned whether a defendant's courtroom behavior can properly become evidence. But we need not address in detail if such behavior can become evidence or how introduction of such evidence would occur procedurally. It suffices that, in this case, defendant's courtroom behavior—specifically his behavior when not on the witness stand—was not in evidence.

Evidence for the consideration of a factfinder at trial consists of the testimony and demeanor of witnesses while under oath and exhibits received into evidence. Statements by individuals in the courtroom, even parties, are not "evidence" when those statements are not given while a person is under oath on the witness stand. See, e.g. , State v. Guzek , 358 Or. 251, 276, 363 P.3d 480 (2015) (noting that a defendant's allocution is "not evidence"). Similarly, while a "display of direct evidence, usually [by] a person or object, in a courtroom" may potentially qualify as demonstrative, it does not become demonstrative evidence until it is offered and admitted. Christensen v. Cober , 206 Or. App. 719, 727, 138 P.3d 918 (2006) ; see also Lambert v. Palmateer , 187 Or. App. 528, 537, 69 P.3d 725, rev. den. , 336 Or. 125, 79 P.3d 882 (2003). Here, we can find no indication in the record where defendant's behavior, nor his statements in court while he was off the witness stand, were offered by a party, or accepted by the trial court, into the evidentiary record.

The state urges us to consider cases from other jurisdictions, which have held that, even though not evidence, a prosecutor can nevertheless comment on a defendant's demeanor when he is not on the witness stand. The Massachusetts Supreme Court, for example, held that a prosecutor's comments on a defendant's behavior during trial were permissible because "the prosecutor did not suggest that he had knowledge the jury did not share." Commonwealth v. Smith , 387 Mass. 900, 907, 444 N.E.2d 374, 380 (1983) ; see also Woodall v. Commonwealth , 63 S.W.3d 104, 125 (Ky. 2001) ("The prosecutor was entitled to make a comment on the demeanor of [defendant] in the courtroom."); Wherry v. State , 402 So.2d 1130, 1133 (Ala. Crim. App. 1981) ("The conduct of the accused or the accused's demeanor during the trial is a proper subject of comment.").

The state acknowledges, however, that other courts have held to the contrary. In United States v. Schuler , 813...