Defendant was convicted by jury of assault and robbery while armed and sentenced to 18 years' imprisonment. He appeals, making one assignment of error, which was based upon a remark made by the prosecuting attorney immediately after the prosecutor had concluded his opening statement to the jury. At that point the following occurred:
Promptly thereafter, in the absence of the jury, defendant's counsel registered his objection to prosecutor's remark about "allowing the defendant to make up a story while the case is going on," and moved for a mistrial, which was denied. The court did not instruct the jury to disregard the prosecutor's remark, nor did the prosecutor seek to withdraw it. Defendant assigns as error the failure of the court to allow a mistrial.
The general rule is that a motion for mistrial is addressed to the sound discretion of the trial court and its exercise will not be upset except for a clear abuse. State v. Smith, Or. App., 91 Adv.Sh. 1291, 478 P.2d 417, decided December 23, 1970.
The determination of the propriety of conduct and remarks of counsel also rests in the sound discretion of the trial court because, as a rule, it can best determine when counsel's conduct and remarks are legitimate and when they degenerate into abuse. Such discretion is not arbitrary, however, and whether the trial court's determination involves reversible error depends on the circumstances under which the alleged error arises. State v. Bailey, 179 Or. 163, 185, 170 P.2d 355 (1946); State v. Banks, 147 Or. 157, 174, 32 P.2d 571 (1934); State v. Newberg et al., 129 Or. 564, 568, 278 P. 568, 63 A.L.R. 1225 (1929). See also, 23A C.J.S. Criminal Law § 1083, p. 91. The test to be applied is whether the defendant was prejudiced by the conduct or remark, i.e., whether the jury was likely influenced thereby. If proof of defendant's guilt is strong, the challenged conduct or remark will not be presumed prejudicial. State v. Black, 150 Or. 269, 42 P.2d 171 (1935). However, an objectionable remark, properly challenged but left uncorrected, may be ground for reversal. State v. Wilson, 221 Or. 602, 351 P.2d 944 (1960).
It is the duty of the attorney for the state to see that the defendant has a fair trial. State v. Pointer et al., 106 Or. 589, 213 P. 621 (1923). The United States Supreme Court in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), commented on the conduct permitted of the prosecutor:
The statement of the prosecutor in this case that, in permitting defendant to defer making his opening statement, the court was "allowing the defendant to make up a story while the case is going on" created an inference that the prosecutor believed the defendant was going to falsely manufacture and tailor a defense so that it would be consistent with and take advantage of any weaknesses in the state's case. More broadly considered, the statement was an attack upon the character of the defendant at a time when the defendant's character was not in issue.
Furthermore, the defense was alibi and prosecutor's remark amounted to a disparagement of defendant's alibi defense, with the innuendo that the alibi was going to be fabricated by the defendant during the trial. When objection was made the court failed to recognize the remark as improper. The court's inaction was tantamount to judicial approval of the statement.
It is impossible to tell with any certainty what effect the remark had on the jury. Defendant in relying on alibi produced two witnesses besides himself who testified he
The failure of the court to take affirmative action, either by instructing the jury to disregard the remark or by allowing the motion for mistrial, was prejudicial error.
Since we are remanding for a new trial, one other matter requires comment. An examination of the transcript discloses that the following instruction was given the jury, inter alia:
That is not the law in Oregon. Ireland v. Mitchell, 226 Or. 286, 359 P.2d 894 (1961), says:
Reversed and remanded.