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State v. Lotches12/29/2000
jections at trial. We will not consider them for the first time on appeal. We review the trial court's decision not to declare a mistrial for abuse of discretion.State v. Smith, 310 Or 1, 24, 791 P2d 836 (1990). We use that standard because the trial judge is "in the best position to assess and to rectify the potential prejudice to the defendant."State v. Farrar, 309 Or 132, 164, 786 P2d 161 (1990). As this court stated inSmith:
"The question thus is not whether this court would have granted a new trial to defendant, but whether the trial court abused its discretion in refusing to do so. Even if we find the prosecutor's remarks to be improper, tasteless, or inappropriate, we will not find an abuse of discretion in the trial court's denial of the motion for a mistrial unless the effect of the prosecutor's remarks is to deny a defendant a fair trial." 310 Or at 24; see also State v. Simonsen, 329 Or 288, 300, 986 P2d 566 (1999) cert den___ US ___, 120 S Ct 822, 145 L Ed 2d 692 (2000) (approving principle).
We hold that the same standard applies to the prosecutor's alleged nonverbal conduct.
In this case, we note that the trial judge did not observe the prosecutor's alleged inappropriate gesturing personally. The trial judge determined, however, that, in the overall context of the trial, it would be more prejudicial to defendant to call any additional attention to the conduct than simply to let it pass.
Because the trial court clearly was in the best position to consider the effect of the prosecutor's alleged gesticulations on all of the participants, that court's perception of the comparative effects of that conduct and any remedy that the court might have fashioned is entitled to deference, even though that court did not observe that conduct. The trial court's comments on the matter satisfy us that that court adequately considered the potential for prejudice to the defendant and took steps to minimize the prejudice. Assuming the prosecutor's conduct to have been as improper as Plazak asserted, that conduct was not so prejudicial that the trial court's decision not to grant a mistrial or to question the allegedly affected juror can be said to have denied defendant a fair trial. We find no abuse of discretion and, therefore, no error.
VIII. JURY INSTRUCTIONS CONCERNING THE DURESS DEFENSE
Defendant argues that the trial court erroneously instructed the jury on the applicability of the defense of duress to the first two counts of aggravated murder based on the underlying felonies of robbery and attempted kidnaping. As noted, we have reversed the convictions on those two counts because the jury instructions failed to ensure jury unanimity as to the circumstances of the underlying felonies. Accordingly, we do not consider the assignments of error pertaining to the trial court's jury instructions on the defense of duress.
IX. SUFFICIENCY OF THE EVIDENCE TO SUPPORT CONVICTIONS
Defendant argues that there was insufficient evidence to support his convictions on counts 1, 2, 3, 5, 6, and 8, and, therefore, that the trial court erred in denying his motions for judgment of acquittal on those counts. In his brief to this court, defendant specifically addressed the sufficiency of the evidence with respect to count 1. With respect to counts 2, 3, and 5, defendant incorporates by reference the arguments he made to the trial court. Defendant does not mention or incorporate by reference any argument with respect to counts 6 and 8.
As discussed, we have reversed defendant's convictions on counts 1 and 2; there is no need to consider defendant's sufficiency-of-the-evidence arguments with regard to those counts. We have
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