This case is before us on remand for reconsideration of our decision in State v. Camirand, 303 Or. App. 1, 463 P.3d 46 (2020) (Camirand I), vacd and remd, 368 Or. 347, 489 P.3d 540 (2021) (Camirand II). Our decision in Camirand I addressed two preserved claims of error, one concerning prosecutorial misconduct during closing argument, and the other concerning the courts refusal to give the “witness-false-in-part” instruction.
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303 Or. App. at 2, 463 P.3d 46. On the first, we agreed with defendant that the trial court erred by allowing the prosecutor, during rebuttal, to argue facts not introduced into evidence, but we concluded that the error was harmless. Id. at 9-11, 463 P.3d 46. On the second, we assumed, without deciding, that defendant was entitled to the witness-false-in-part jury instruction but determined that that error, too, was harmless. Id. at 11-13, 463 P.3d 46. Our harmless error analysis with regard to the instruction was premised on the conclusion we reached in State v. Payne, 298 Or. App. 438, 442, 447 P.3d 71 (2019) (Payne I), that the witness-false-in-part instruction adds little to the case and merely tells the jury what it already knows.
As it turned out, the Supreme Court disagreed with our approach in Payne I and reversed that decision, concluding that the failure to give the witness-false-in-part instruction is significant and that the failure to give it was prejudicial in that case. State v. Payne, 366 Or. 588, 468 P.3d 445 (2020) (Payne II). Then, while the petition for review was pending in this case, the Supreme Court decided State v. Banks, 367 Or. 574, 481 P.3d 1275 (2021), a case that, like Camirand I, involved a prosecutors reference to facts not in evidence. The court concluded that the prosecutorial misconduct in Banks was prejudicial and required reversal.
Thereafter, the Supreme Court vacated our decision in Camirand I and remanded for us to reconsider our decision in light of Payne II and Banks. As explained below, we conclude that, in light of Banks, our original decision did not fully account for the type of prejudice that results from a prosecutors introduction of facts outside the record, and that the prosecutors error in this case was not harmless after all. In light of our reversal, we do not address the applicability of the witness-false-in-part instruction, which, if it arises at all on remand, will arise on a different record.
Our decision in Camirand I described the back-ground of the charges and the events at trial, and it is not necessary to repeat that recitation fully. In short, defendant was brought to trial on charges of coercion and third-degree robbery after two individuals, CM and JB, identified him as the person who had assaulted and bloodied CM and then forced CM to surrender a cell phone and three one-dollar bills. The state called three witnesses at trial: CM, JB, and Randall, the police officer to whom CM and JB reported the crimes and who later arrested defendant nearby. One of the pieces of evidence tying defendant to the assault—and on which the prosecutor built much of his theme of the case—was the presence of a substance on the gloves that defendant was wearing when he was arrested, a substance the prosecutor characterized as blood from the assault of CM. As we recounted in Camirand I, the prosecutor argued during closing:
“ ‘In every case attorneys are taught that there should be a theory of the case that should have been the thing that something centers around, and the greatest one that it has ever been done, was by Johnny Cochran in the OJ trial. (Indiscernable) if the glove dont fit you must acquit. So the theory in this case is the gloves do fit. You must convict.’ ”
303 Or. App. at 6, 463 P.3d 46.
Defendant responded by challenging the strength of the states evidence of identification. Addressing the gloves, he highlighted the states failure to test whatever substance was on the gloves:
“ ‘Now the gloves. First of all, I dont think you actually heard [CM] saying that there were gloves being worn, but these are apparently the gloves that if they dont—or if they do fit you must convict, right? Okay. These gloves, these blood stains supposedly. We didnt hear that theyd been identified specifically as blood—blood stains. Theres a couple little marks matching up with these injuries. Did these gloves have anything to do with this face?’
“ ‘You also heard that of the description provided they were the wrong color. You got some green gloves here. Thats not what was described. Now again were talking about people who are homeless, so staying out in the middle of the night in Lincoln County. You heard from the officer it was a bit chilly. Does it mean anything that you are wearing gloves? Or, does it mean that it was chilly outside?’
“ ‘And again I really want you to look closely when you get the opportunity at the supposed blood, hasnt been identified as blood, nobody tested it as blood, and the small amount of whatever that is on these gloves that was caused by beating up [CM].’ ”
Id. at 7, 463 P.3d 46 (emphasis added).
To respond to that argument and counter defendants assertions that the failure to test the substance on the gloves gave rise to a reason to doubt the states case, the prosecutor, in rebuttal, introduced facts outside the record:
“[PROSECUTOR]: ‘[Defendant] did compel [CM] to hand over his property, but he wasnt going to leave. [CM] didnt want to take more of a beating. Now admitted the follow up in this case was a little lacking, so with that, this could have been kind of looked into. The State will advise you that shortly after this Officer Randall went and got married and had a honeymoon right after this incident occurred. He was gone for a while so the follow up was a little bit slow on this case.’
“ ‘However, lets talk about DNA evidence. So I mentioned to you earlier we talked about the CSI effect that you can get DNA in an hour. In the case that we have right now, in the cases we have going right now, its taking four to six months.’ ”
Id. at 7, 463 P.3d 46.
Defendant objected on the ground that the state was arguing facts that were not in evidence, to which the court responded: “Its up to the jury to recall what the testimony was so Im going to overrule the objection. Its strictly up to you what your recollection of the evidence is.” Thereafter, the prosecutor continued the same line of argument to explain away its lack of DNA evidence:
“ ‘So this occurred a little over two months ago. The State has no ability to get DNA in that short of period of time whenever a jury trial was requested, so the DNA cannot happen that quick. And so were arguing that—that is blood. Football gloves or baseball gloves that are being worn, and you get to take them back into the room, and you get to see the blood stains that are on these gloves. Apparently from hitting [CM].’ ”
Id. at 8, 463 P.3d 46.
After those closing arguments, when the trial court instructed the jury, it included a general instruction that,
“ ‘[i]n reaching your verdict you should consider only the evidence that is received and these instructions. I trust that the attorneys’ opening statements and closing arguments have been helpful to you, but remember if your recollection of the evidence differs from that of the attorneys, rely on your own recollection unless and until you can convince [sic] that your recollection is not accurate.’ ”
Id. The evidence that the jury had with it during deliberations included the gloves themselves. The jury ultimately returned unanimous verdicts on the charges.
On appeal, we agreed with defendant that the prosecutors explanation for the states lack of DNA testing—that “its taking four to six months” to get DNA tests back and that the state had “no ability to get DNA in that short of period of time whenever a jury trial was requested, so the DNA cannot happen that quick”—impermissibly introduced facts that were not in the record, which was error. Id. at 9, 463 P.3d 46. Further, we disagreed with the states contention that the presence of blood on the gloves was “relatively unimportant”:
“In the states opening and closing arguments, the existence of blood on the gloves was a point of emphasis by the prosecutor and was one of the facts tying defendant to the crime, along with other circumstantial evidence and eyewitness testimony. It was not merely cumulative of other circumstantial evidence that defendant committed the robbery, such as the phone, location, and dollar bills, and defendant challenged the significance of that other evidence and the reliability of the eyewitness accounts of the assault—one of whom could not identify defendant in court. The presence of blood on the gloves was a fact of consequence in the case and part of the prosecutors ‘central’ theme, contrary to the states contention on appeal.”
Id. at 10, 463 P.3d 46 (emphasis added).
We nevertheless concluded that the prosecutors introduction of facts about DNA testing was not likely to have affected the jurys verdict. We reached that conclusion primarily based on the facts that (1) the jury was able to inspect the gloves firsthand to evaluate whether the substance on them was blood; (2) the record contained other evidence indicating that the gloves were bloody; and (3) the trial courts instructions to the jury informed it that arguments were not evidence, and that the jury was to base its decision on its own assessment of the evidence:
“[W]e conclude that the prosecutors improper closing argument had little likelihood of affecting the jurys determination as to whether the substance on the gloves was, in fact, blood. The prosecutor fully acknowledged that the substance on the gloves had not been tested, and nothing in his argument suggested what the outcome of such tests might be. Rather, he improperly introduced facts on why such testing had not occurred.
“On this particular record, it is unlikely that the jury was influenced or distracted by the prosecutors introduction of facts bearing on why the testing had not occurred. The jury was instructed, both at the outset of the trial and after closing arguments, that it was to decide the case based on the evidence presented, and that the parties’ arguments are not evidence. And, even though the court erroneously overruled defendants objection, it nevertheless gave a similar cautionary instruction at that time, stating, ‘Its up to the jury to recall what the testimony was so Im going to overrule the objection. Its strictly up to you what your recollection of the evidence is.’
“In light of the repeated instructions to follow the evidence—and the fact that there was no dispute about what ‘evidence’ was in the record with regard to the substance on the gloves—there is no reason to believe that the jury decided whether the substance was blood based on anything other than its own assessment of the gloves themselves (an exhibit in the case), the officers testimony about the substance, and the video evidence presented at trial. In sum, the prosecutors explanation for the lack of DNA testing, although improper, was not likely to have influenced the verdict, and the courts error in overruling the objection provides no basis for reversal.”
Id. at 10-11, 463 P.3d 46 (emphasis in original).
We also noted that, “[a]lthough defendants assignment of error primarily relies on the prosecutors introduction of facts about DNA evidence, he also references the prosecutors statements that follow-up on the case was ‘a bit slow’ because ‘Officer Randall went and got married and had a honeymoon right after this incident occurred.’ ” Id. at 11 n 3, 463 P.3d 46. We stated that it was debatable that a claim of error based on those statements had been preserved, but we went on to explain that, “in the context of the case as a whole, that fleeting reference to the officers marriage and honeymoon, although also improper,” did not have the potential to influence the jurys verdict. Accordingly, we rejected defendants contention that the court had committed reversible error by allowing the prosecutor to argue facts not in evidence. Id. at 11, 463 P.3d 46.
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After we issued Camirand I, the Supreme Court decided Banks, a case presenting a similar issue of prosecutorial misconduct through reference to facts outside the record. In Banks, the state had charged the defendant with harassment based on an incident at a mobile phone store. 367 Or. at 576, 481 P.3d 1275. Pretrial, the state had provided the defendant with security video from the store, but the video did not reflect the alleged harassment. Id. During voir dire, the prosecutor told prospective jurors that “ ‘the rules of evidence’ ” limited what she could present to the jury, that “ ‘some things are not going to come into the trial today,’ ” and that the jury was “ ‘not going to have all the facts.’ ” Id. The defendant objected, arguing that the prosecutors statements implied “ ‘that theres more video, but for some reason that video didnt get to come in by the rules of evidence.’ ” Id. at 578-79, 481 P.3d 1275. The trial court denied the defendants request to instruct the jury that it should not assume that “ ‘the rules of evidence have precluded any evidence at this point.’ ” Id. at 580, 481 P.3d 1275. The court denied defense counsels request. Id.
In the course of the trial, defense counsel argued that the store had three security cameras and that the state had failed to produce video showing the alleged harassment. Id. at 576, 481 P.3d 1275. During deliberations, the jury sent a question to the court asking whether the prosecutor knew if there was video evidence of the alleged harassment and, if so, whether the prosecutor was required to show it at trial. Id. The court told the jury that it had been provided the evidence that had been admitted and that it was “ ‘unable to provide further response.’ ” Id. The jury found the defendant guilty, and we affirmed the judgment without opinion. Id. (describing that procedural posture).
Before the Supreme Court, the state argued that the prosecutors statements were not improper for three reasons: (1) they were made during voir dire, not during trial; (2) “the statements did not suggest that ‘the state possessed incriminating evidence,’ just inadmissible evidence”; and (3) the prosecutor told the jury “that it was ‘not allowed to speculate.’ ” Id. 587, 481 P.3d 1275 (emphasis by the state).
The Supreme Court rejected each of those arguments. After first explaining that it was improper for the state to suggest at any point in the trial, including voir dire, that the rules of evidence prevented it from presenting all of its evidence, the court addressed the states argument that the prosecutor had not suggested the existence of incriminating evidence. The court explained that, “because the state is the plaintiff in a criminal case, a prosecutors suggestion that the state has more evidence than it can present will likely be understood as a suggestion that the state has more incriminating evidence than it can present,” even if the prosecutor does not say as much. Id. (emphasis in original).
The court then turned to the states contention that the prosecutors reference to facts not in evidence was remedied by the prosecutor also telling the jury not to speculate. The court explained that a prosecutors suggestion that the state has more evidence than it can present is an open invitation to speculate, and that following that invitation by telling the jury not to speculate is “at best, inconsistent” and akin to telling the jury “ ‘not to think of a white bear.’ ” Id. at 588, 481 P.3d 1275. “Moreover,” the court explained, by later telling the jury to focus on the “ ‘facts that are presented,’ ” the prosecutor could have “caused jurors to believe that they were not to think about the missing video at all”—which would have been incorrect “because jurors can draw reasonable inferences from a partys failure to present evidence ‘[w]hen it would be natural under the circumstances’ ” for the party to present that evidence. Id. at 589, 481 P.3d 1275.
The Supreme Court then addressed the question of prejudice. The court observed that references to facts outside the record can be prejudicial in two ways: First, they encourage the jury to speculate about evidence beyond that presented at trial; and, second, they “provide[ ] a preemptive explanation for the states failure to present evidence that the jury might expect it to present.” Id. at 590, 481 P.3d 1275. That prejudice in that case was significant, the court explained, because the absence of the video of harassment was a central issue, the prosecutors statements created a risk that the jury might think that the state had the video but was unable to offer it, and “[t]he statements also created a risk that jurors would believe that they could not take the states failure to present the video into account, which would undercut part of defendants defense.” Id.
The court also addressed three arguments advanced by the state as to why the prosecutors statements did not prejudice the defendant, one of which is especially pertinent to this case: that the statements were harmless because the trial court gave the jury standard instructions regarding how to make its factual findings. In rejecting that argument, the court explained that “[t]he instructions did not tell the jury to disregard the prosecutors statements,” nor “counter the prosecutors suggestion that the state had evidence that had been excluded because of the rules of evidence, a suggestion that undercut part of defendants defense.” Id. at 592, 481 P.3d 1275. Moreover, the instructions stated that anything that was not in evidence, which would include any video of the alleged harassment, was unreliable. Id. Relying on Cler v. Providence Health System-Oregon, 349 Or. 481, 490, 245 P.3d 642 (2010), the court reiterated the view that Oregons Evidence Code “deters the suggestion of inadmissible evidence to the jury by any means, including through counsels statements, and does not somehow authorize that sort of conduct if the trial court gives the jury standard instructions.” Banks, 367 Or. at 592, 481 P.3d 1275 (internal quotation marks omitted).
On reconsideration in light of Banks, we conclude, as Judge James had argued in a dissent to our decision in Camirand I, that our discussion of harmless error did not fully account for the harm that occurred in this case when the prosecutor referred to facts outside the record. We focused on the fact that “[t]he prosecutor fully acknowledged that the substance on the gloves had not been tested, and nothing in his argument suggested what the outcome of such tests might be”—in other words, that the prosecutor did not improperly introduce evidence about what the testing would have revealed but “why such testing had not occurred.” 303 Or. App. at 10, 463 P.3d 46 (emphasis in original). And we then underestimated the harm from that statement about why the testing had not happened based on the courts repeated instructions to the jury that it was to decide the case based on its own recollection of the evidence in the record. Id. at 11, 463 P.3d 46.
As Banks makes clear, that approach was flawed in two ways. First, we did not sufficiently account for the fact that the prosecutors rebuttal addressed a potential weakness in the states case—specifically, as in Banks, it provided an “explanation for the states failure to present evidence that the jury might expect it to present.” 367 Or. at 590, 481 P.3d 1275. That is, our approach did not recognize how the prosecutors argument based on facts outside the record undercut defendants permissible, and potentially powerful, line of defense. Under Banks, that type of harm—undercutting a defense argument about the states proof using facts not in evidence—is significant.
Second, and relatedly, we overestimated the curative effect of the trial courts general instructions to the jury to follow the evidence. Under Banks, not only do such generic instructions fail to “tell the jury to disregard the prosecutors statements,” id., and leave them trying “ ‘not to think of a white bear,’ ” id. at 588, 481 P.3d 1275, they can exacerbate the harm in a case like this, where the state is seeking to diffuse an adverse inference about why it failed to produce certain evidence. In this circumstance, instructions directing the jury to look only at the evidence can, as Banks stated, “create[ ] a risk that jurors would believe that they could not take the states failure to present the [evidence] into account, which would undercut part of defendants defense.” Id. at 590, 481 P.3d 1275.
Having reconsidered under Banks the nature of the prosecutorial misconduct in this case and the trial courts response, we conclude that the prosecutors improper argument had some likelihood of affecting the jurys verdict and, therefore, the courts error in overruling defendants objection to it was not harmless. The presence of blood on the gloves was, as we said in Camirand I, “a fact of consequence in the case and part of the prosecutors ‘central’ theme,” 303 Or. App. at 10, 463 P.3d 46, and the prosecutors explanation for why the state did not produce DNA evidence had some likelihood of affecting the jurys deliberation about the substance on the gloves and, consequently, some likelihood of affecting its determination of defendants guilt. We therefore reverse and remand.
Reversed and remanded.
FOOTNOTES
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. We also rejected various unpreserved assignments of error, including one about the courts failure to instruct the jury that its verdict must be unanimous. 303 Or. App. at 2 & n. 1, 463 P.3d 46. None of those unpreserved assignments are at issue on remand, but we note that the verdicts in this case were unanimous. See State v. Flores Ramos, 367 Or. 292, 294, 478 P.3d 515 (2020) (rejecting a claim that instructional error regarding jury unanimity was structural error that required reversal of unanimous verdicts).
2
. Judge James dissented from that conclusion. He would have concluded that “the prosecutor made an argument in rebuttal closing that he reasonably believed would affect the jury,” and that the prosecutors “reasoned tactical decision to make that argument to persuade the jury is powerful evidence that it, in fact, was reasonably likely to affect the jury.” Id. at 19, 463 P.3d 46 (James, J., dissenting).
LAGESEN, P. J.