Lead Opinion
Defendant challenges his convictions for first-degree sodomy, a violation of ORS 163.405, and harassment, a violation of ORS 166.065. He first argues that the trial court erred by “permitting” a police detective to comment on the credibility of another witness, the sodomy victim, despite the lack of any objection by defendant to that aspect of the detective’s testimony. As explained below, even if we agreed that the trial court plainly erred by not striking that testimony sua sponte, we would decline to exercise our discretion to correct the error. Accordingly, we need not determine whether the trial court plainly erred in the way that defendant contends. Defendant also argues that the trial court erred when it made various rulings related to defendant’s conviction by nonunanimous jury verdicts (11-1 on sodomy; 10-2 on harassment) and when it imposed the 300-month statutorily mandated sentence on his sodomy conviction. We reject each of those latter arguments without further discussion. Accordingly, we affirm.
In addressing defendant’s argument that the trial court plainly erred by failing to strike certain testimony sua sponte, we consider the evidence in the light most favorable to the state. State v. Wilson,
This case involves several children, including J (the sodomy victim), E (the harassment victim, and a friend of J), R (another of J’s friends), and Q (J’s older brother). In early 2012, defendant moved into the home where R lived with her parents and siblings; he stayed there for five or six months. J and E, who then were about seven years old, and Q, who was about eleven years old, often played at R’s house during the summer. One afternoon in June or July, Q saw defendant in an upstairs bedroom in that house, bending down in front of J with his face near her “privates.” J’s pants were down around her ankles and she had no underwear on. Q heard defendant ask J if he could “lick her privates”; Q also heard J ask defendant to stop what he was doing. Q ran downstairs and tried to tell R’s parents what was happening, but they were occupied and did not pay attention to him. Q went home and told his mother (who is also J’s mother) what had
On August 15, J’s mother did receive information about the abuse, which prompted her to call the sheriffs office. A deputy sheriff spoke with J and Q before the case was referred to the Brookings Police Department. The next day, J’s mother met with a detective from that department, McCourt, and told him that defendant had abused J “a couple of times.”
McCourt then contacted defendant and asked him about the allegations. Defendant told McCourt that the children had “conspired against him to make up these allegations” because “he wouldn’t play with them anymore.” Defendant also told McCourt that he had kissed J on the nose and on the cheeks, and that he might have contacted her “crotch area” when they were “playing around.” Defendant denied performing oral sex on J, telling McCourt that he “would never do anything they wouldn’t like or want.” Defendant also told McCourt that J had told him that somebody else had performed oral sex on her about a month earlier.
McCourt interviewed Q on the day after his mother first contacted the sheriffs office about the abuse. Shortly thereafter, Q was interviewed by Dotson, a forensic interviewer at the local child-advocacy center. In addition, McCourt coordinated a “pretext call” from Q to defendant. During that call, McCourt gave “information and questions to [Q] about what to say,” because the child was having difficulty talking to defendant. McCourt “kind of felt bad while [they] were doing it,” but he believed that the pretext call “was necessary to try to get as much evidence as we could.” Defendant apparently made no admissions during that call. Q also spoke with a prosecutor a few times in the weeks before trial.
McCourt also spoke briefly with J on the day following her mother’s report to the sheriffs office, but he “did not talk to [her] about the case at all.” That same day, Dotson conducted a forensic interview of J, who told Dotson that she was at the center because “a guy molest [her].” Dotson testified that the word “molest” is not a word that a child J’s age typically would know or use. Dotson asked J if she knew what “molest” means and J said that she had forgotten. J then told Dotson that defendant had licked her vagina with his tongue and that it happened once, at night, about a week before the interview.
At some point, E (one of J’s friends) disclosed that, one day while the children were playing at R’s house, defendant had grabbed her legs and looked under her dress. At trial, she testified that defendant’s actions made her feel nervous because she did not “know what [he] was going to do.” E told defendant to stop, but he did not, so she ran back to her home.
During her forensic interview, J also disclosed that, on a particular occasion when defendant and E were present, defendant looked under the two girls’ dresses. J also described another incident when defendant looked under E’s dress while he pretended to take a nap.
The state initially charged defendant with two counts of first-degree sodomy and three counts of harassment, but later dismissed some of those charges. Consequently, defendant was tried on one count of first-degree sodomy (against J) and one count of harassment (against E).
In his opening statement, defendant suggested that “the amount of contact and discussions about this” that occurred between J, Q, and their mother “before the police ever got involved” might cause the jurors to question whether certain standards for sex-crime investigations had been met. Q, J, Dotson, McCourt, and E then testified to the facts described above. In apparent support of an argument that the children had been interviewed too many times, defendant cross-examined Dotson about protocols for investigating child sex-abuse cases. In response, she agreed with defense counsel’s statement
During his direct examination, McCourt was asked about conversations that he and prosecutors had with J shortly before trial. McCourt responded with the testimony that is the subject of defendant’s “vouching” argument on appeal:
“Q. * * * What was the purpose of those visits?
“A. We like to make — We like to talk to the witness again before the trial just to see, make sure they’re going to be able to — if they’re going to be able to come testify in a court, make sure they still remember, or if they have — if they decide — Let’s say that they were lying to us or they told us a fib, we like to find that out before we get to this point so we can — -we don’t have to waste your time and the court’s time. And we talked to her on the Thursday of last week.
“Q. Okay. And if there had been any inconsistencies or any problems, wouldn’t those have needed to be reported to all parties?
“A. Yes.
“Q. And you did not write any such a report or * * * note any such inconsistencies at any time?
“A. I did not.”
Defendant did not object to that testimony. The prosecutor did not linger on the topic of McCourt’s conversations with J, but instead moved to questioning McCourt about the interviews of Q and the other children.
After the state rested, defendant called J’s mother as a witness and questioned her about how she interacted with J after she learned of the abuse. In addition, defendant asked J’s mother about her understanding of when the abuse had occurred. Defendant also called McCourt and questioned him about the information that he had received from J’s mother on the same topic.
Defendant then testified on his own behalf. He described the relationships among the children and testified that he played with them, “swinging them around in circles” and catching them as they jumped off of things. Defendant denied ever having attempted to perform oral sex on J; he also denied having tried to look between E’s legs. On cross-examination, defendant downplayed what he had told McCourt about the children having been upset at him for not playing with them; he testified that the children had only once said that they “were going to get [defendant] for not playing with them” after he got tired, and that it had been a “very minor thing.”
Neither the state nor defendant referred to McCourt’s “vouching” testimony in the closing arguments. Rather, in its closing argument, the state first summarized the evidence and how it related to the elements of the charged crimes. The state then acknowledged some discrepancies in the children’s description of events, for example, whether the abuse occurred at night or during the day, and whether it happened only once or multiple times. The state suggested that the discrepancies could be based on defendant actually having abused J more than once, or might be based on the difficulty that the young children had in remembering and describing exactly what had happened. For his part, defendant emphasized the discrepancies in the children’s statements, J’s use of terms like “molest” and “vagina,” and the number of times that the children had spoken to adults about the abuse before trial. Defendant urged the jurors to determine, based on those considerations, that they had at least reasonable doubt about whether the abuse had occurred.
The jury convicted defendant by nonunanimous verdicts and the trial court imposed the statutorily required 300-month prison sentence on the sodomy conviction, to be followed by lifetime post-prison supervision, with a concurrent 120-day sentence on the harassment conviction. This appeal followed.
On appeal, defendant argues that the trial court plainly erred by “permitting” — or, more precisely, by failing to strike — McCourt’s testimony that he spoke to J the week before trial in part to make sure that she had not lied. Defendant acknowledges that he did not object to McCourt’s statements
Our consideration of an unpreserved claim of error generally encompasses two steps. First, we determine whether the trial court plainly erred. Error is “plain” if
“(1) the error is one of law, (2) the error is ‘obvious, not reasonably in dispute,’ and (3) the error ‘appears on the face of the record,’ so that we need not ‘go outside the record to identify the error or choose between competing inferences, and the facts constituting the error are irrefutable.’ State v. Reyes-Camarena,330 Or 431 , 435,7 P3d 522 (2000) (internal quotation marks omitted).”
State v. Corkill,
Second, if we determine that a trial court plainly erred, we then consider whether we should exercise our discretion to correct that error.
“That discretion entails making a prudential call that takes into account an array of considerations, such as the competing interests of the parties, the nature of the case, the gravity of the error, and the ends of justice in the particular case.”
State v. Vanornum,
In this case, the state concedes that McCourt’s testimony “likely was an implicit comment on [J’s] credibility.” Nonetheless, the state argues that the trial court did not plainly err in admitting that testimony for two reasons. First, the state contends, defendant opened the door to that testimony when he suggested that J had been improperly subjected to multiple interviews and that her claims were, therefore, suspect. Second, the state argues, defendant may have made a strategic decision not to object to the testimony, given its possible admissibility in response to defendant’s theory that J had been interviewed too many times.
We need not decide whether the trial court plainly erred in admitting McCourt’s statements because, for the reasons that follow, we would not exercise our discretion to correct any plain error that might exist on this record.
The principle that appellate courts generally will not consider unpreserved claims of error is longstanding. As the Supreme Court stated in 1944, “ [i] t is only in rare and exceptional cases that this court will notice an alleged error where no ruling has been sought from the trial judge.” Hotelling v. Walther,
“the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error.”
Id. at 382 n 6.
Sixteen years after the Supreme Court issued its opinion in Ailes, the court expressed its continued agreement with, and intent to “adhere to that statement” in Ailes, which the court characterized as setting out “precisely what [the Supreme Court] expects” when this court considers whether to exercise its discretion to correct plain error. State v. Fults,
More recently, the Supreme Court again emphasized that “a decision to review a plain error is one to be made with the ‘utmost caution’ because such review undercuts the policies served by the preservation doctrine.” Vanornum,
“Those policies are prudential in nature. Preservation gives a trial court the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made, which in turn may obviate the need for an appeal. Preservation also ensures fairness to an opposing party, by permitting the opposing party to respond to a contention and by otherwise not taking the opposing party by surprise. Finally, preservation fosters full development of the record, which aids the trial court in making a decision and the appellate court in reviewing it. Our jurisprudence, thus, has embraced the preservation requirement, not to promote form over substance but to promote an efficient administration of justice and the saving of judicial time.”
Id. at 219-20 (internal quotation marks, brackets, and citations omitted). Yet again, the court emphasized that, even when there is “an error apparent on the record, about which there is no reasonable dispute,” an appellate court “has discretion to consider [that] error, but it must do so with the ‘utmost caution,’ because of the strong policy reasons favoring preservation.” Id. at 219.
With those principles in mind, we first consider the gravity of any error that could be said to have plainly occurred. See Vanornum,
“As we have stated before, in a case that boils down to a credibility contest between the defendant and the victim, as here: evidence commenting on the credibility of either was likely to be harmful. [The witness’s] testimony was a direct comment on the credibility of [the children]. That error was grave because this is a sexual abuse case with no physical evidence of abuse and [the witness] was presented as an expert in treating sexual abuse victims with significant experience in spotting indications of suggestion or coaching. [The witness] was also the long-term counselor of both of the girls and familiar with them. Those facts present a significant risk that the jury’s credibility determinations were affected by [her] testimony.”
Id. at 285-86 (internal quotation marks and citations omitted); see also State v. Roelle,
Again, this is the testimony by McCourt that defendant contends the trial court should have stricken sua sponte:
“A. *** We like to talk to the witness again before the trial just to see, make sure they’re going to be able to — if they’re going to be able to come testify in a court, make sure they still remember, or if they have — if they decide— Let’s say that they were lying to us or they told us a fib, we like to find that out before we get to this point so we can — wedon’t waste your time and the court’s time. And we talked to her on the Thursday of last week.
“Q. Okay. And if there had been any inconsistencies or any problems, wouldn’t those have needed to be reported to all parties?
“A. Yes.
“Q. And you did not write any such a report or * * * note any such inconsistencies at any time?
“A. I did not.”
(Emphasis added.)
The emphasized part of that testimony was objectionable, in that it could be understood to vouch for J’s credibility.
However, we reject defendant’s contention that, in addition, McCourt plainly vouched for J’s veracity when he gave testimony implying that there were not “any inconsistencies or any problems” in the child’s statements. “[Generally speaking, testimony that a witness’s statements were consistent with earlier statements that the witness made does not impermissibly vouch for the witness’s credibility.” State v. Beauvais,
However, that latter comment does provide context when we consider the gravity of any error that the trial court may have plainly committed when it did not strike McCourt’s testimony suggesting that he spoke with J to make sure that she had not fibbed. In that regard, we first observe that, although McCourt’s “fibbing” testimony could be understood to vouch for J’s credibility, he did not purport to base that opinion on any particular analysis of the child’s veracity. If anything, the prosecutor’s repeated references to “inconsistencies” in her next questions to McCourt suggest that McCourt’s opinion that J had not “fibbed” was based on little more than his belief that the child’s story had remained consistent over time.
That is not the kind of expert vouching testimony that most often has prompted this court to reverse a criminal conviction or a judgment favoring a civil plaintiff because the trial court should have stricken vouching testimony sua sponte. For example, we have reversed when trial courts failed to sua sponte strike testimony delivered by: a witness who was “presented as an expert in treating sexual abuse victims with significant experience in spotting indications of suggestion
This is not such a case. McCourt was not presented as an expert in identifying untruthfulness; nor was he presented as an expert in the field of childhood sexual abuse. In our view, his identity as a law-enforcement officer, standing alone, would not necessarily have led the jury to believe that he had special insight into J’s veracity. Moreover, as explained above, McCourt’s statements suggesting that J had not “fibbed” were closely associated with his agreement that he had not observed inconsistencies or unspecified “problems” in the child’s statements, suggesting that his opinion of the child’s veracity was based on little more than the unchanging nature of her story — a fact to which McCourt permissibly could testify. Accordingly, it is unlikely that McCourt’s “fibbing” testimony would have carried the same weight with the jury as the expert vouching testimony at issue in the cases discussed above. In addition, McCourt stated only once, and briefly, that he had interviewed J shortly before trial so he could make sure that she was not lying, and the prosecutor promptly redirected McCourt to permissible topics. Consequently, McCourt’s vouching testimony was not the sort of emphatic or repeated comment on credibility that has sometimes prompted this court to reverse because the trial court should have stricken the testimony sua sponte. In short, any error that occurred here is not nearly as grave as the errors that prompted reversals in those other cases.
We next consider “the nature of the case.” Ailes,
We also consider “whether the policies behind the general rule requiring preservation of error have been served in the case in
The judicial system’s interest in avoiding that kind of “unnecessary repetitive legal proceeding!], as well as its interest in requiring preservation of error,” is weighty. Dept. of Human Services v. E. L. G.,
“Even if we assume that the error is plain, this is not an appropriate occasion to reach it. As the state notes, if defendant had raised a timely objection, the state could have found other ways to prove the facts that defendant now challenges, or it could have chosen to forgo the testimony and avoid the issue. In these circumstances, we decline to exercise our discretion to reach the unpreserved issues that defendant asks us to decide.”
Id. Here, too, the state easily could have decided not to ask McCourt any further questions about his pretrial conversation with J had defendant successfully objected to the “fibbing” testimony at trial. We understand from Cox, as well as cases like Vanornum, Fults, and Peeples, discussed above, that the ease with which any error could have been avoided or corrected should be a significant factor in an appellate court’s decision whether to exercise its discretion to correct a plain, but unpreserved, error.
And that brings us to the last factor that we deem pertinent to our decision in this case: “the ends of justice in the particular case.” Ailes,
The dissent’s contrary conclusion makes several points to which we briefly respond. First, the dissent suggests that admission of McCourt’s vouching testimony could not be characterized as “harmless” in the context of this case, given the lack of physical evidence of abuse and the inconsistencies in the children’s descriptions of events. See
The dissent also downplays both the importance of preservation principles — a point which, as we have noted, the Supreme Court continues to emphasize — and the judicial system’s interest in avoiding repetitive proceedings. In doing so, the dissent refers to Reynolds,
This case differs from Reynolds in two significant respects. First, the result in Reynolds was straightforward: The defendant’s conviction for third-degree assault was reversed and remanded for entry of a judgment of conviction for, instead, fourth-degree assault.
Second, as noted above, we emphasized in Reynolds that the evidentiary record would not have developed differently had the defendant preserved his claim of error; that is, the state apparently did not contend that it might have been able to present evidence supporting a conviction for third-degree assault. Here, though, the record presumably would have developed differently had defendant objected to McCourt’s testimony. The trial court presumably would have stricken that testimony and instructed the jury to disregard it.
The dissent concludes that that presumptive difference in how the record would have developed, had defendant objected to McCourt’s testimony on “vouching” grounds, is so significant that defendant “would likely” prevail if he pursued post-conviction relief on the theory that his trial lawyer should have made that objection.
In the end, we cannot conclude from the record on direct appeal that there is no meaningful chance either that defendant’s lawyer exercised reasonable professional skill and judgment when he did not object to McCourt’s testimony or that, given the totality of the circumstances as reflected in a yet-to-be-developed post-conviction record, defendant was not prejudiced by the absence of an objection. The purpose of post-conviction litigation is to allow development of a record that permits a factfinder to make fully informed decisions on those points. See Pereida-Alba v. Coursey,
Affirmed.
Haselton, C. J., and Ortega, DeVore, and Garrett, JJ., join in this opinion.
Notes
J testified at trial that defendant licked her private parts more than once, at nighttime. She did not appear to recall that she had told Dotson that it happened only once.
Our observation that the testimony was objectionable as “vouching” evidence does not, of course, equate with a holding that the trial court plainly erred by not excluding that testimony sua sponte. See Corkill,
Pergande,
B. A. v. Webb,
State v. Lowell,
But see State v. Higgins,
Concurrence Opinion
concurring.
Defendant contends that the trial court committed plain error by failing to strike sua sponte testimony by Detective McCourt that defendant believes impermissibly vouched for the credibility of J, the sodomy victim in this case. I am not persuaded that the testimony about which defendant complains necessarily vouched for J’s credibility, and, consequently, I would reject defendant’s assignment of error on the ground that the trial court was not required to strike the testimony sua sponte.
Vouching testimony is testimony in which a witness expresses a personal opinion about the credibility of another witness’s statements or testimony. It is well established that a trial court must strike vouching testimony sua sponte if it is given at trial. See, e.g., State v. Corkill,
Here, the testimony by McCourt can be understood not to express an opinion about the credibility of J’s statements and testimony. McCourt was asked on direct examination about the purpose of a meeting that he and the prosecutors had had with J shortly before trial:
“Q. * * * What was the purpose of those visits?
“A. We like to make — We like to talk to the witness again before the trial just to see, make sure they’re going to be able to — if they’re going to be able to come testify in a court, make sure they still remember, or if they have — if they decide — Let’s say that they were lying to us or they told us a fib, we like to find that out before we get to this point so we can — we don’t have to waste your time and thecourt’s time. And we talked to her on the Thursday of last week.
“Q. Okay. And if there had been any inconsistencies or any problems, wouldn’t those have needed to be reported to all parties?
“A. Yes.
“Q. And you did not write any such a report or * * * note any such inconsistencies at any time?
“A. I did not.”
(Emphasis added.)
As the emphasized portion of the testimony indicates, McCourt could be understood to be describing a process designed, among other things, to give witnesses the opportunity to recant their earlier statements, because witnesses sometimes decide to acknowledge to the police and prosecutors that they had lied in making them. In turn, McCourt’s testimony could be understood not to express McCourt’s personal opinion about whether J had been truthful in making the statements that she did. Hence, the trial court was not required to strike the testimony sua sponte.
Nakamoto, Egan, and Flynn, JJ., join in this concurrence.
Concurrence Opinion
concurring.
For the reasons expressed in the lead opinion, even assuming for the sake of argument that the trial court plainly erred when it failed to strike certain testimony sua sponte, I would not exercise my discretion to address defendant’s unpreserved claim of error. Additionally, however, though the lead opinion dodges the question of whether the error is plain, I would conclude that the trial court did not plainly err in failing to strike the testimony at issue, because that testimony did not vouch for the credibility of the victim— and certainly not so clearly that the trial court was obligated to strike it without a motion from the defendant. For that additional reason, I concur in the lead opinion’s decision to affirm the trial court’s judgment.
As I will explain, the dissenting opinion jumps several logical steps to reach its conclusion that the testimony at issue constitutes “true vouching — that is, an explicit comment by one witness on the credibility of another witness.”
I begin with some background regarding cases in which we have held that it was plain error to fail to strike vouching testimony sua sponte. In State v. Milbradt,
In a series of cases that followed, we have found that it was plain error to fail to strike vouching testimony sua sponte. However, we have done so only when the testimony directly vouched for a witness’s credibility — so-called “true” vouching. State v. Corkill,
Although “indirect” vouching statements may well be impermissible, we have never held that a trial court must strike indirect vouching statements without an objection. For example, in State v. Lupoli,
We have, on occasion, declined to treat vouching as plain error where it was more indirect or implied. One witness, for example, stated, “‘I believe the statistic at Liberty House is 96 to 98 percent of the time when a child makes a disclosure about abuse, there’s truth to it,”’ but he “stopped short of stating that [the victim] was like the 96 to 98 percent of Liberty House complainants whose reports were truthful.” State v. Harrison,
The only cases in which we arguably have held that it was error for the court not to strike an indirect vouching statement sua sponte are those involving a diagnosis of sexual abuse by an expert where there is an absence of physical evidence. In such cases, because there is no physical evidence to corroborate a victim’s testimony, a witness’s diagnosis of sexual abuse necessarily implies that the witness believes that the victim is credible. See State v. Southard,
With that background, I turn to the testimony at issue in this case, which was as follows:
“Q. * * * What was the purpose of those visits?
“A. *** We like to talk to the witness again before the trial just to see, make sure they’re going to be able to — if they’re going to be able to come testify in a court, make sure they still remember, or if they have — if they decide — Let’s say that they were lying to us or they told us a fib, we like to find that out before we get to this point so we can — we don’t have to waste your time and the court’s time. And we talked to her on the Thursday of last week.
“Q. Okay. And if there had been any inconsistencies or any problems, wouldn’t those have needed to be reported to all parties?
“A. Yes.
“Q. And you did not write any such a report or * * * note any such inconsistencies at any time?
“A. I did not.”
(Emphases added.)
The dissent mischaracterizes the testimony as being that McCourt interviewed the victim to determine whether she was “lying to [them] or * * * told [them] a fib.”
We recently addressed a similar case in which an officer testified about his approach for reviewing with a child the difference between telling the truth and lying, which, on appeal, the defendant argued amounted to vouching for the child’s credibility.
In this case, the state concedes that the officer’s statements were “likely *** an implicit comment on [J’s] credibility.” However, even assuming that the statements indeed vouched for the victim’s credibility, they constituted no more than “indirect” vouching because the officer’s statements were not clear, direct opinion statements about her credibility. We have never held that a trial court was required to strike such testimony in the heat of trial, without a motion, and we should not view the trial court’s failure to do so in this case as plain error. To do so is a significant and unwarranted extension of our vouching jurisprudence. Consequently, and for the additional reasons cited in Judge Hadlock’s lead opinion, I concur in the decision to affirm the trial court’s opinion.
Some of our cases of so-called “true” vouching involve testimony that was not actually elicited by counsel — and I question whether it makes sense to require trial courts, in the heat of trial, to strike such testimony without an objection. See, e.g., Higgins,
Dissenting Opinion
dissenting.
INTRODUCTION
Vouching evidence, by its nature, is quite prejudicial to a defendant, and its admission usurps the province of the jury and undermines the fairness of a trial. Because of that, in criminal cases where a trial court has plainly erred by failing to strike true vouching testimony by a lay or expert witness, and where the credibility of the verified witness is a significant issue in the case, we have exercised our discretion to correct the error. Here, despite the explicit testimony by a police officer about the truthfulness of the victim, whose credibility was identified by both parties to be a core issue in the case, the lead opinion does not follow our precedents to correct an error that is, by its nature, both plain and grave in character. Instead, it reasons that the error should not be corrected because (1) the prejudice to defendant was not as bad as it would have been if the vouching had been by an expert witness, (2) there was some evidence of the sodomy crime in addition to the victim’s testimony, and (3) correction of plain error is usually a bad idea because it undercuts preservation principles.
With respect, those reasons do not justify the outcome reached by the lead opinion: (1) Because of its pernicious effect, we have condemned the introduction of explicit or “true” vouching testimony, whether voiced by a lay or an expert witness, and whether the vouching is direct or indirect, (2) although there might be little prejudice to a defendant by vouching testimony when there is overwhelming evidence of the crime, that is not the case here, and (3) the Supreme Court has classified this type of error — failure to strike true vouching testimony — as so plainly wrong that it needs no predicate objection to be correctible. Accordingly, lack of preservation is unimportant in evaluating whether to correct that type of error. In my view, then, the lead opinion improperly relies on those considerations in declining to correct the error in this case.
In addition, the lead opinion fails to credit factors— the gravity of the error or the needs of justice in the case— that have prompted our court in other cases to correct this type of plain error. We have, for example, been more inclined to exercise discretion to correct plain error when its potential consequence
Thus, I dissent from the lead opinion’s failure to correct plain and grave error of the type that we have readily corrected in previous cases, that is based upon a rationale that is out of step with our case law, and that fails to consider significant factors that have guided the exercise of our review discretion in the past.
PLAIN ERROR
I begin with the question reserved by the lead opinion — whether the trial court committed plain error in failing to strike the direct vouching testimony of Detective McCourt and to caution the jury to not consider that testimony. As noted by the lead opinion, during direct examination, McCourt was asked about conversations that he and prosecutors had with J after her forensic interview and shortly before trial. McCourt responded with the testimony that is the subject of defendant’s vouching argument on appeal:
“Q. Now, who did you make the arrangements with to have [J] brought to do an interview?
“A. I contacted her mother * * *.
“Q. And [her mother] agreed to bring her daughter down to the PD for an interview?
“A. Yes, she did.
“Q. Okay. And so any conversations you had with [J] after this were after that forensic interview?
“A. Yes.
“Q. Okay. Now, have you had an opportunity to speak with [J] in the presence of the district attorney’s office?
“A. Yes, I have.
“Q. And were those — What was the purpose of those visits?
“A. We like to make — We like to talk to the witness again before the trial just to see, make sure they’re going to be able to — if they’re going to be able to come testify in a court, make sure they still remember, or if they have — if they decide — Let’s say that they were lying to us or they told us a fib, we like to find that out before we get to this point so we can — we don’t have to waste your time and the court’s time. And we talked to her on the Thursday of last week.
“Q. Okay. And if there had been any inconsistencies or any problems, wouldn’t those have needed to be reported to all parties?
“A. Yes.
“Q. And you did not write any such a report or *** note any such inconsistencies at any time?
“A. I did not.”
The lead opinion concedes that McCourt’s testimony constitutes “objectionable” vouching because it “could have conveyed to the jury that McCourt did not believe that J had lied or told a fib.”
Because that testimony is true vouching — that is, an explicit comment by one witness on the credibility of another witness that is offered to bolster the veracity of that witness — the court’s failure to strike it is indisputably plain error. “[I]n Oregon a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth.” State v. Middleton,
We summarized that line of cases in State v. Corkill,
“Each of the cases in which we have held that a trial court should have excluded evidence sua sponte *** has involved true ‘vouching’ evidence, that is, one witness’s testimony that he or she believes that another witness is or is not credible, which a party offers to bolster or undermine the veracity of that other witness. That kind of testimony impermissibly ‘invade [s] the jury’s role as the sole judge of the credibility of another witness.’ State v. Charboneau,323 Or 38 , 47,913 P2d 308 (1996). Often, it creates a ‘risk that thejury will not make its own credibility determination, which it is fully capable of doing, but will instead defer’ to an expert’s opinion on that point. State v. Southard, 347 Or 127 , 141,218 P3d 104 (2009).”
(Brackets in Corkill; some citations omitted.)
I agree with Judge Ortega’s assertion in her concurrence that there is a distinction in plain error vouching cases between the “true vouching” identified in Corkill— ’’one witness’s testimony that he or she believes that another witness is or is not credible, which a party offers to bolster or undermine the veracity of that other witness” — and testimony that is not explicitly vouching for another that a judge is not obliged to strike. In Corkill, for example, we concluded that it was not plain error for the court not to strike the defendant’s answers to a prosecutor’s questions about whether police officer witnesses were lying when their testimony contradicted that of the defendant. Id. at 553. Those inquiries, we concluded, went not to bolstering or undermining a different witness’s testimony but to “undermining the credibility of the witness who is presently on the stand.” Id. As such, it was not “true vouching.”
In State v. Wilson,
But, contrary to Judge Ortega’s assertion, it is plain error not to strike explicit vouching whether the vouching is direct (opinion testimony that the witness was truthful) or indirect (testimony that the witness took or failed to take an action or reached a conclusion because of an opinion that a witness was truthful). In State v. McQuisten,
Thus, the error in failing to strike McCourt’s testimony is no less plain because it is indirect and explicit vouching. McCourt’s testimony is as plainly inadmissible as the admission of the indirect comment on the victim’s credibility that was admitted, over the defendant’s objection, in State v. Ferguson,
EXERCISE OF DISCRETION TO REVIEW
Even where error is plain, “the appellate court must exercise its discretion to consider or not to consider the error[.]” Ailes v. Portland Meadows, Inc.,
“[I]n deciding whether to exercise its discretion to consider an error of law apparent on the face of the record, among the factors that a court may consider are: the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error. State v. Brown,310 Or 347 , 355-56,800 P2d 259 (1990); State v. Avent,209 Or 181 , 183,302 P2d 549 (1956). Those factors do not comprise a necessary or complete checklist; they merely are some of the permissible considerations.”
Id. at 382 n 6. Additional factors that are relevant in deciding whether to exercise discretion to correct an error were listed in State v. Fults,
“Although we may accept in the abstract the court’s statement that ‘[t]he state has no valid interest in requiring defendant to serve an unlawful sentence,’ other factors also must be considered and may outweigh that one. Among the factors that may apply in this case are: (1) defendant’s apparent encouragement of the judge’s choice; (2) the role of the concurrent, permissible 36-month probationary sentence; (3) the possibility that defendant made a strategic choice not to object to the sentence; and (4) the interest of the judicial system in avoiding unnecessary repetitive sentencing proceedings, as well as its interest in requiring preservation of error.”
I note that some of the Ailes/Fults factors are present in every case and lack dispositive significance. It is true, in the abstract, that neither the state nor a defendant has an interest in a criminal conviction procured through improper evidence. The “competing interests of the parties” factor, then, in that type of case, would always favor review and correction. As Fults suggests, however, “other factors also must be considered and may outweigh that one.” Id.
On the other hand, the “interest in requiring preservation of error” factor would always suggest not exercising discretion to correct the error. The lead opinion, in fact, primarily relies on that factor to support its disposition of the case.
“Admittedly, the preservation principle of ‘judicial efficiency’ would not be served by review of defendant’s unpre-served claim of error. Had defendant moved for a judgment of acquittal on the third-degree assault charge, that relief could have been obtained sooner and with less consumption of judicial resources. That inefficiency, however, is present in nearly all cases where review of unpreserved issues are under consideration. That consideration does not distinguish those cases where review should be allowed from those where it should not. We said as much in State v. Morris, 217 Or App 271 , 274,174 P3d 1127 (2007), rev den,344 Or 671 (2008):
“‘To be sure, as the state suggests, if defendant had raised his present objection before the trial court, error might well have been avoided. But that is true in many “plain error” cases — indeed, in virtually all such cases except for those in which the claim of error is based on an intervening, post-judgment change in the law.’
“Thus, the error in this case is plain and serious, and its correction will not undermine the relevant principles that underlie the preservation rule.”
See also State v. Martino,
Other Ailes/Fults factors are not present in this case, and play little part in the analysis. Although we have declined to exercise Ailes discretion when a defendant’s failure to object to or move to strike the offending evidence was a plausible tactic to advance the defense, that is not the case here. See, e.g., State v. Ramirez-Estrada,
There was no plausible reason for defense counsel to not object to McCourt’s vouching. Defendant gained “no conceivable advantage” in not advancing an objection. State v. Dorsey,
Instead, there are aspects of the “gravity of the error” and the “ends of justice in the particular case” factors here that support the exercise of discretion to correct the plain error. First, we have readily concluded that an error is “grave” when it could have resulted in a wrongful criminal conviction or otherwise increased the term of incarceration of a defendant. See Reynolds,
In addition, we are more likely to consider the error to be grave if it “likely affected” the outcome of the case or where the prejudicial effect of the error is “significant” or “substantial.” See, e.g., State v. Pergande,
Contrary to the lead opinion’s reasoning, in cases where the victim’s credibility is a significant issue, we have found vouching to be prejudicial error even when there is some other corroborating evidence of the crime. For example, in Simpson v. Coursey,
“[t]he state *** called as a witness the victim’s brother, who corroborated some aspects of the victim’s account of events, specifically that petitioner, the victim, and he wrestled together in petitioner’s bedroom, and that on a few occasions when they were all watching television in petitioner’s bedroom, petitioner asked him to leave the room to get petitioner a drink of water or milk. The victim’s friend testified that the victim had reported the abuse to her at the time and again, more recently, but that the victim had asked her not to say anything about it both times.
******
“* * * Petitioner’s criminal trial, like the trials in Milbradt and McQuisten, lacked any physical evidence to corroborate either the victim’s or petitioner’s account. The Milbradt court characterized that situation as a ‘credibility contest,’ in which improper vouching is even more prejudicial to the defendant than in other criminal trials, due to the critical importance of the credibility of the victim’s and the defendant’s competing testimony.”
See also State v. Brown,
Instead, we have refused to exercise Ailes discretion to correct a vouching error for lack of prejudice only when there is overwhelming evidence of a defendant’s guilt so that the testimony of the verified witness is truly cumulative. See, e.g., State v. Pickett,
Here, the eyewitness testimony of Q was hardly overwhelming. There were inconsistencies between the testimony of Q and the victim, J, about details of the sodomy, such as whether the abuse occurred during the daytime or nighttime and whether their mother first learned about the abuse from Q or J. Q, who was 11 years old, testified several times that “I have a bad memory” and “I can barely remember *** a couple minutes ago.” His testimony falls well short of the physical proof found sufficient to classify vouching error as harmless in Pickett and Childs.
Moreover, an error is more likely to be considered grave when the case is a close one, as reflected by a split jury verdict to convict. See, e.g., State v. Logston,
McCourt’s credibility with the jury as a police officer is another feature of the case that supports categorizing the vouching error as grave. In my view, a police officer is likely to be viewed by a jury as a more credible witness than a lay witness, and vouching testimony by a police officer from the exercise of official duties is more likely to be prejudicial to a defendant than testimony by a lay witness. Here, McCourt testified that part of his “duties as a detective” was “investigating] these types of incidents” and to officially report if there was “any problem,” including lying, in the testimony of the victim. Thus, as presented to the jury, McCourt’s vouching for the victim was just part of his job.
In Simpson, we concluded that vouching by a police officer in an otherwise close case was prejudicial to the petitioner. There, the petitioner sought post-conviction relief from his conviction of first-degree sexual abuse, because his criminal trial counsel did not move to strike a police officer’s description of the victim as “Very honest, very straightforward.’”
“We readily conclude that [the police officer’s] testimony had at least some likelihood of influencing the jury and thus affecting the verdict. The jury heard a uniformed police detective vouch for the victim’s honesty. The possibility that the testimony affected the verdict is magnified by the fact that the criminal trial appears to have been an extremely close case for the jury. It returned a verdict of acquittal on three of the four counts of sexual abuse, and its guilty verdict on the fourth count was by a 10 to 2 vote. The charges * * * turned on whether the jury believed the victim’s testimony. Thus, the possibility that [the police officer’s] testimony vouching for the credibility of the victim affected the verdict is very real.”
Id. at 154. That same analysis informs the “gravity of the error” and the “ends of justice” inquiries here.
Finally, we have concluded that the ends of justice factor supports an exercise of Ailes discretion to correct plain error when a defendant would likely obtain the same result in post-conviction proceedings. We reiterated that principle in Reynolds:
“We conclude that the ends of justice in this case militate in favor of correcting the plain error. As the dissent notes, it is likely that defendant would be able to obtain post-conviction relief from the erroneous conviction. However, we conclude, contrary to the dissent, that the availability of post-conviction relief is a reason in support of affirmatively exercising our discretion. As we have noted in the plain error context before,
‘“[w]e see no reason, and the state offers none, as to why [the] defendant should be made to jump through more procedural hoops before he can get the relief to which he is entitled. In this case, we are in a position to order the same relief to which [the] defendant would be entitled under a post-conviction proceeding, and we do so in the interests of judicial economy.’
“State v. Cleveland,148 Or App 97 , 100,939 P2d 94 , rev den,325 Or 621 (1997). There is, in short, no reason to deny review where it would result in more unnecessary proceedings and, ultimately, less judicial efficiency.”
CONCLUSIONS
I disagree with the lead opinion’s conclusion that the court ought not to exercise discretion to correct the plain error in this case because the vouching was not by a medical expert witness and because there was some corroborating evidence of the sodomy crime. The vouching for the sodomy victim likely affected both convictions. In other cases, we have exercised discretion to correct the grave error in not striking true vouching testimony, notwithstanding the normal reluctance to address unpreserved error, because that type of evidence is particularly prejudicial to a defendant and inimical to a fair trial. We have declined to correct that type of error only in three circumstances, none of which is present here: where a defendant invites that error or has a plausible reason to allow that type of evidence to be introduced or when there is overwhelming evidence of a defendant’s guilt. For those reasons, I respectfully dissent.
Duncan and Tookey, JJ., join in this dissent.
McCourt’s interview of J was the first time she spoke with him about the details of the crimes. Presumably, the “inconsistencies” refer to inconsistencies between that telling and the truth. If not, I agree with the lead opinion that it is not vouching to testify that a witness’s statements were consistent with other statements.
In her concurrence, Judge Ortega suggests that McCourt’s testimony was “simply a general description of what officers and prosecutors often do to prepare witnesses for trial” and not specific to McCourt’s interview of J.