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State v. Lotches12/29/2000
ailed to establish that the error, if any, was prejudicial. As noted above, evidential error is not presumed to be prejudicial; in order to prevail, a defendant must establish that the error was not harmless. OEC 103(1). Error is harmless if there is little likelihood that it affected the verdict. In the present case, the jury had heard evidence of defendant's extensive criminal background, including his 17 convictions for violent felonies, such as armed robbery and escape. Because the jury already had heard that evidence, it was highly unlikely to have convicted defendant of aggravated murder on the basis of his possession of a list of books on weapons or a post-prison supervision order stating that he was not to carry weapons. Moreover, the jury was made aware of defendant's chemical dependency during the course of the trial. Indeed, defendant claimed in his defense that his .17 percent blood-alcohol level at the time of the crimes mitigated his culpability, and his medical experts testified that his drug and alcohol abuse was a mechanism to self-medicate his paranoid-schizophrenia. Under those circumstances, we cannot say that the jury was likely to have convicted defendant on the basis of a letter disclosing that defendant failed to complete a substance abuse program. Consequently, we reject defendant's arguments.
VII. IMPROPER PROSECUTORIAL CONDUCT
Defendant argues that the trial court erred in failing to declare a mistrial after one of his expert witnesses, Dr. Plazak, informed the court that the prosecutor was communicating with a juror about Plazak's testimony. Plazak, a psychiatrist, testified in support of defendant's insanity defense. In anin camerasession after he had concluded his testimony, Plazak testified that, during his testimony, one of the prosecutors had been making gestures indicating disbelief, such as head-shaking, scoffing, and laughing, toward one of the jurors in the first row. Plazak complained that, toward the end, the prosecutor's actions became so intense as to be seriously distracting. Defendant moved for a mistrial, arguing that Plazak's testimony was critical to his insanity defense and the prosecutor's actions improperly could have tainted Plazak's credibility. Alternatively, defendant asked the court to direct the prosecutor to stop his actions and to give a curative instruction to the jury to disregard his actions any of the prosecutor's facial expressions and gestures.
The trial court denied the motion. The court had not seen the prosecutor gesticulating. Moreover, the court stated that, in its experience, lawyers who behave disrespectfully or in an inappropriate or obnoxious manner in the courtroom do more harm to their own cases than to those of their opponents. In response, defendant asked to be allowed to question the juror to whom the prosecutor's gestures appeared to have been directed. The trial court declined to interrupt the proceedings for that purpose, reasoning that it would tend to overemphasize the matter, particularly if the juror had not seen the prosecutor's gestures or if the juror had not been influenced by them.
In this court, defendant argues that, in gesturing to a juror, the prosecutor improperly vouched for the state's case by commenting on and impugning Plazak's credibility. Further, he contends that the prosecutor, by his conduct, violated defendant's due process rights under the United States Constitution and his right to a fair trial under Article I, sections 11 and 20, of the Oregon Constitution. For those reasons, according to defendant, the trial court abused its discretion in failing to declare a mistrial.
At the outset, we note that defendant did not raise either of the constitutional ob
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