Defendant appeals his convictions for possession of a controlled substance, delivery of a controlled substance, and frequenting a place where controlled substances are used. ORS 475.992; ORS 167.222. At trial, the court admitted evidence that the police had obtained through the use of a body wire that they had placed on an informant. The police did not obtain a court order authorizing them to use the body wire. Defendant contends that the trial court’s admission of that evidence was error under
State v. Fleetwood,
Shortly before defendant’s trial in February 1994, we held that there was no statutory or constitutional impediment to the police using a body wire to overhear and record conversations without first obtaining a court order authorizing such use, so long as the police had probable cause to believe that the conversations would involve illegal drug transactions.
State v. Bass,
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In his opening brief on appeal, defendant asserted for the first time that
Bass
and
Evans
had been wrongly decided. Shortly before defendant’s opening brief was filed, the Oregon Supreme Court allowed review in
Fleetwood
and
Cleveland,
both of which involved the same issue as
Bass.
We allowed the state’s motion to hold the present appeal in abeyance until the Supreme Court decided
Fleetwood
and
Cleveland.
Ultimately, the Supreme Court held that ORS 133.724 required the police to obtain court orders before using body wires to intercept communications.
Fleetwood,
For error to be considered apparent on the face of the record for purposes of ORAP 5.45, it must satisfy three criteria: (1) it must be legal error; (2) it must be “apparent,” such that “the legal point is obvious, not reasonably in dispute”; and (3) it must appear on the face of the record, such that we “need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.”
State v. Brown,
In the present case, the asserted error is a legal error and does not require us to go outside of the record or choose between competing inferences; the only question is whether the error is sufficiently “apparent.” More specifically, the question is whether we measure the “apparentness” of the error from the present time, and in light of the Fleetwood and Cleveland cases, or whether this question should be evaluated from the perspective of the trial court that, in the present case, ruled on the issue presented in accordance with the only case law that then existed on the subject. In sum, in this case we have an error that is “apparent” to us after the decisions in Fleetwood and Cleveland, but could not have been *136 “apparent” to the trial court when it ruled on the issue because the only existing case law at that time reached the opposite conclusion from Fleetwood and Cleveland.
Thus, we must determine whether the temporal baseline for “error apparent on the face of the record” is the time the trial court made the disputed ruling or the time the appellate court decides the appeal. No reported Oregon decision has explicitly addressed that question. We acknowledge that determining the “apparentness” of error by reference to the law existing at the time of the appeal can lead to ostensibly incongruous results: A trial court can be reversed for “plain error,” when its ruling comported with — or even was compelled by — the law existing at the time the court ruled. Nevertheless, for the following reasons, we conclude that “error apparent” must be determined by reference to the law as of the time the appeal is decided.
Error apparent on the face of the record is merely a subspecies of error generally. Error, in general, must be determined by the law existing at the time the appeal is decided, and not as of the time of trial. 1 Consequently, the same must be true of error apparent on the face of the record.
Two common scenarios highlight the operative principle: In Case #1, a party raises an objection to the admission of evidence; under then-existing case law, that objection is not well-founded — and, indeed, controlling case law is to the contrary — and the trial court overrules the objection. The objecting party loses at trial and, on appeal, assigns error to the trial court’s admission of the evidence. Between the time of trial and the time we determine the appeal, the Supreme Court overrules the previously controlling precedent with the direction that the ruling is not merely prospective. In that circumstance, we would hold that the trial court erred in admitting the evidence. That would be so regardless of whether the trial court’s ruling was “correct” at the time that it was made.
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The “benchmark” for error is the law existing as of the time the appeal is decided.
See, e.g., State v. McCain,
Case #2 presents the obverse situation- A party objects to the admission of evidence — and, despite the fact that controlling case law squarely supports the objection, the trial court overrules the objection. Again, the objecting party loses at trial and appeals, assigning error to the trial court’s evidentiary ruling. Again, while the appeal is pending, the Supreme Court overrules the preexisting precedent, giving that ruling retroactive application. In that circumstance, we would reject the claim of error, notwithstanding that the trial court did not adhere to controlling law at the time that it ruled. Again, the benchmark for determining error is the law existing as of the time the appeal is decided.
Nothing in the text of ORAP 5.45 or in the historical development of the “plain error” doctrine underlying that rule alters that general principle.
See, e.g., Ailes,
Moreover, we have consistently, albeit implicitly, defined “plain error” by reference to the law existing at the time the appeal is decided.
See, e.g., State v. Crain,
“The prosecutor makes the point that no objection was made in the trial court to the multiple charge in the indictment, hence, we should not consider this assignment of error * * *. State v. Woolard[,259 Or 232 ,484 P2d 314 , 485 *138 P2d 1194 (1971)], was decided after the trial of the case at bar. We can thus see a reason for no objection having been made. The error substantially affects defendant’s status by placing one felony conviction against him which should not exist. Therefore, we are invoking Rule 5.40 under which the court reserves the right to take notice of an error apparent on the face of the record, regardless of whether proper objection was made in the trial court.”
Conversely, no reported Oregon decision has suggested, much less ruled, that “error” for purposes of “error apparent on the face of the record” must be determined by reference to the law existing as of the time of trial.
Finally, we fully appreciate that defining “error apparent” by reference to the law existing as of the time of the appeal could subvert important principles of preservation of error and comity with trial courts. That is, ingenious appellate counsel (and even judges) could use “plain error” as a device for reversing trial courts on grounds that were never raised at trial — but could have, and should have, been raised.
The answer to such manipulation lies in Ailes. Ailes mandates a two-step process. First, we must determine that a claim of error satisfies the requirements for “plain error.” Second, even if we so determine, we can address unpreserved “plain error” only if we explicitly find that certain criteria justify our exercise of discretion in that regard:
“Even if the error meets [the Brown] test, however, the appellate court must exercise its discretion to consider or not to consider the error, and if the court chooses to consider the error, the court must articulate its reasons for doing so. This is not a requirement of mere form. A court’s decision to recognize unpreserved or unraised error in this manner should be made with utmost caution. Such an action is contrary to the strong policies requiring preservation and raising of error.”
Ailes,
In stun, determining “plain error” by reference to the law existing as of the time of the appellate decision both (1) comports with general appellate principles and (2) affords the appellate courts greater flexibility to remedy egregious cases. Conversely, Ailes’s prudential criteria constrain our discretion to consider “plain error” so as to ensure fidelity to principles of preservation and comity except in exceptional cases.
We return to this case. Here, the error was apparent on the face of the record. The underlying facts are undisputed and, in the light of
Cleveland,
We turn, then, to whether we should exercise our discretion under
Ailes
to remedy that error. In making that determination, we generally consider the competing interests of the parties, the nature of the case, the gravity of the error, and the ends of justice.
See, e.g., State v. Wilkins,
First, defendant’s failure to raise and preserve his present objection at trial was, at least partly, justifiable. At the time of defendant’s trial, we had decided
Bass,
and the Supreme Court had not yet accepted review in
Cleveland
and
Fleetwood.
Given those circumstances, defense counsel could have reasonably forgone making the argument now
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advanced on appeal and, even if defense counsel had raised the present objection at trial, the trial court would properly have rejected that challenge under
Bass.
In a closely related, and fundamental, sense, because the outcome at trial would not have been altered even with preservation, our allowance of relief in this case will not subvert the comity considerations that underlie the preservation requirement.
See, e.g., J. Arlie Bryant, Inc. v. Columbia River Gorge Comm.,
Second, correction serves the ends of justice in that the use of the body-wire evidence was central to the prosecution — and, ultimately, to defendant’s convictions of two felonies and one misdemeanor. We note, moreover, that we have reversed the convictions of several other similarly situated defendants on identical grounds. 3 Although the body-wire issue was preserved in those cases, unlike here, we decline to treat defendant differently from those defendants because, as described above, preservation would not have made a difference in this case.
Finally, we conclude that the error in admitting the body-wire evidence did not constitute harmless error. OEC 103(1).
We thus conclude that, under Fleetwood and Cleveland, the erroneous admission of the body-wire evidence requires reversal of defendant’s convictions and remand for a new trial.
Reversed and remanded for new trial.
Notes
There are, of course, some notable exceptions to this general rule. For example, application of laws in effect at the time of an appeal but not in effect when a criminal defendant committed a crime may run afoul of ex post facto constitutional provisions. Also, the legislature may choose to specify the effective dates of particular laws and whether they apply to actions pending in trial courts or appellate courts.
In Ailes, the court identified a nonexclusive list of criteria that guide the appellate courts’ discretion to consider “plain error”:
“In future applications of this rule, in 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 * *
E.g., State v. Aldrich,