State v. Inman

ORTEGA, J.,

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 *941 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.” 275 Or App at 950 (Sercombe, J., dissenting). In my view, the testimony did not vouch for the credibility of the victim at all; the most that can be said is that the testimony amounted to “indirect” vouching, as we have described it in our case law. Accordingly, I do not believe that it was plain error for the trial court to fail to strike the testimony without a motion under the circumstances presented here. To treat the court’s inaction as plain error under these circumstances would constitute a significant and unwarranted extension of our vouching jurisprudence and a failure to sufficiently grapple with the differences between reviewing such testimony on appeal and hearing such testimony in the moment in the midst of a trial. Such an extension likewise fails to grapple appropriately with the attendant toll on the witnesses, the victims, and the judicial system as a whole. I do not agree that it makes sense to require a new trial in a situation like this rather than requiring a defendant to object to testimony that constitutes, at worst, indirect vouching.

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, 305 Or 621 , 756 P2d 620 (1988), the Supreme Court held that the trial court erred in failing to grant a motion to strike opinion testimony from a psychotherapist that a witness was telling the truth. The court went on to “suggest in the future that if counsel attempts to elicit similar testimony the trial judge, sua sponte, should summarily cut off the inquiry before a jury is contaminated by it.” Id. at 630 .

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, 262 Or App 543, 552 , 325 P3d 796 , rev den, 355 Or 751 (2014) (noting that the strike *942 rule has, thus far, only been applied in cases involving “true” vouching); see also State v. Higgins, 258 Or App 177, 180-81, 308 P3d 352 (2013), rev den, 354 Or 700 (2014) (trial court plainly erred by failing to strike sua sponte testimony from a mother that she “‘knew for sure’” that her daughter was not lying when she reported that the defendant raped her); B. A. v. Webb, 253 Or App 1, 6-17 , 289 P3d 300 (2012), rev den, 353 Or 428 (2013) (trial court plainly erred in failing to strike a counselor’s testimony that she had ‘“no doubt’” that the complainant told her the “‘absolute truth’”); State v. Hollywood, 250 Or App 675, 677-80, 680 , 282 P3d 944 (2012) (trial court plainly erred by failing to strike sua sponte a child abuse investigator’s testimony that “‘there is no lying going on about what [the complainant is] telling us in this evaluation’”); State v. Lowell, 249 Or App 364, 366-68, 369 , 277 P3d 588 (2012) (trial court plainly erred by failing to strike sua sponte testimony from a detective that he “‘didn’t think that [the defendant] was being very honest and upfront’”). 1 On the other hand, it is not plain error not to strike vouching testimony sua sponte if the testimony is “not so apparently excludable as vouching testimony.” See State v. Wilson, 266 Or App 481, 493, 495 , 337 P3d 990 (2014) (holding that, “because the evidence in question was not clearly vouching for L’s credibility in accusing [the] defendant of sexual abuse, but was more akin to permissible testimony about L’s demeanor, * * * the trial court did not plainly err in failing to strike the testimony sua sponte”).

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, 348 Or 346, 362 , 234 P3d 117 (2010), the Supreme Court held that a nurse’s statements explaining the basis for her diagnosis were impermissible *943 because they “implicitly declared], with each statement and description, why she had found [the victim] to be credible.” Similarly, the Supreme Court held that a doctor’s statement that her diagnosis was based, in part, on the fact that “‘[t]here was no evidence of leading or coaching or fantasizing’” by the victim was impermissible. State v. Keller, 315 Or 273, 285 , 844 P2d 195 (1993). However, in both cases, the testimony at issue had been the subject of an objection. Lupoli, 348 Or at 356 ; Keller, 315 Or at 278-79 .

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, 267 Or App 571, 575, 577 , 350 P3d 777 (2014). There was no objection to that testimony at trial and, on appeal, the defendant argued that the court should have struck the testimony sua sponte. Id. at 572. Relying on Corkill and Wilson , we held that, because there was a reasonable dispute as to whether there was impermissible vouching, the court did not plainly err by failing to strike the disputed testimony sua sponte. Id. at 577. In another case, where an officer gave testimony that may or may not have been vouching for the victim’s credibility and the defendant failed to object to it at trial, we held that the “error [was] not plain” and declined to consider whether the court erred in failing to strike the testimony sua sponte. State v. Hunt, 271 Or App 347, 350 , 350 P3d 521 (2015). In another case, also named State v. Hunt, 270 Or App 206, 208 , 346 P3d 1285 (2015), a witness testified that he “‘thought the information [the victim] gave [him] was just the best of her knowledge at the time.’” We concluded that such testimony was not “true vouching” and held that “the trial court did not plainly err when it did not strike it on its own initiative.” Id. at 213 .

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 *944 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, 347 Or 127, 141 , 218 P3d 104 (2009). Based on the standard set out in Southard , we have consistently held that it is plain error for a court not to strike such “indirect” vouching testimony sua sponte. See State v. Lopez-Cruz, 256 Or App 32 , 299 P3d 569 (2013); State v. Pekarek, 249 Or App 400 , 277 P3d 594 (2012); State v. Cox, 248 Or App 325 , 273 P3d 299 (2012); State v. Codon, 247 Or App 756 , 270 P3d 409 (2012); State v. Feller, 247 Or App 416 , 269 P3d 110 (2011); State v. Bahmatov, 244 Or App 50 , 260 P3d 592 (2011); State v. Childs, 243 Or App 129 , 259 P3d 77 , rev den, 350 Or 573 (2011); State v. Potts, 242 Or App 352 , 255 P3d 614 (2011); State v. Gonzales, 241 Or App 353 , 250 P3d 418 , rev den, 350 Or 571 (2011); State v. Merrimon, 234 Or App 515 , 228 P3d 666 (2010). However, beyond that narrow category of cases, we have declined to find that it is plain error for a trial court not to strike indirect vouching testimony sua sponte.

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.)

*945 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.” 275 Or App at 949 (Sercombe, J., dissenting). On the contrary, although the officer was asked about the purpose of follow-up interviews with the victim, the testimony at issue describes the purpose of such visits generally. The officer’s statement was simply a general description of what officers and prosecutors often do to prepare witnesses for trial, including giving them an opportunity to recant. The officer consistently uses the words “we” and “they,” as opposed to “I” and “she/her/J.” The officer’s further testimony was only that he would have reported any inconsistencies or problems, and did not do so in this case. The lack of such a report does not indicate anything about whether the officer believed the victim. One can infer — as indeed can be inferred in any case where prosecution proceeds — that the officer believed the victim, but the lack of a report of inconsistencies or problems does not necessarily indicate anything about the officer’s beliefs, and McCourt did not directly comment on the victim’s credibility or directly indicate that he believed her. Consequently, this is not an instance of vouching at all. At most, it is a case of indirect vouching, and the trial court did not plainly err in failing to strike the testimony sua sponte.

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. Smith v. Franke, 266 Or App 473 , 337 P3d 986 (2014), rev den, 356 Or 689 (2015). The defendant did not object to that testimony at trial. Id. at 474. We held the officer’s testimony did not constitute vouching (direct or indirect) because it did not specifically touch on the witness’s opinion about the victim’s truthfulness. Id. at 479. Here, as in Smith, the officer’s statement arguably was not vouching at all because it did not specifically include the officer’s opinion about the witness’s credibility — he simply stated that he had found no inconsistencies in the victim’s statements. The officer stated, in part, “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.” The officer’s statements, in context, merely *946 suggest that the victim had an opportunity to recant but did not do so. That could have been because (1) the victim had indeed previously told the truth or (2) the victim previously lied and, for whatever reason, did not recant when given the opportunity. The officer did not express an opinion as to whether he believed it was the former or the latter. He simply stated that the victim was not inconsistent, a neutral comment on the victim’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, 258 Or App at 178, 181 (concluding that the trial court erred in failing to strike vouching testimony sua sponte even though it was not elicited by counsel’s question); Hollywood, 250 Or App at 678-80 (same). Doing so certainly constitutes an extension of the Supreme Court’s original concern in Milbradt with situations where “counsel attempts to elicit” vouching testimony. 305 Or at 630 .