State v. Lincoln

443 P.2d 178 (1968)

STATE of Oregon, Respondent, v. Robert L. LINCOLN, Appellant.

Supreme Court of Oregon, Department No. 2.

Argued and Submitted June 12, 1968.

Decided June 26, 1968.

Oscar D. Howlett, Portland, argued the cause and filed a brief for appellant.

Jacob B. Tanzer, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before SLOAN, P.J., and GOODWIN and HOLMAN, JJ.

PER CURIAM.

Defendant appealed from a judgment of conviction of the crime of burglary not in a dwelling. His sole assignment of error is the trial court's denial of defendant's motion for a mistrial because of comments by the deputy district attorney during argument to the jury. Defendant did not take the stand as a witness and he contends that the remarks in question amounted to a comment on his failure to do so.

The defendant was charged with the burglary of a service station. He was apprehended at the scene of the alleged crime together with two other suspects. Several officers participated in the arrest of the suspects and the resultant investigation. All the officers so participating were not called by the state although some of them were present in the courtroom. Defendant's counsel argued to the jury that the state had not disclosed all of the information it possessed because all of the officers with knowledge of the investigation were not called as witnesses. In rebuttal the deputy district attorney argued: "Counsel knows if he wants to call any officers in the courtroom, he certainly can do that." The motion for a mistrial followed.

*179 It is clear that the comment in question in no way related to defendant's failure to take the witness stand. There is no rule which prevents the state from commenting on defendant's failure to call witnesses other than the defendant which were available to him.

The judgment of the trial court is affirmed.