# State v. Tucker

> Oregon Supreme Court · February 11, 1993 · 315 Or. 321

URL: https://www.frixlaw.com/law-library/cases/9560489

## Case

- **Full name:** STATE OF OREGON, Respondent, v. MICHAEL ROBERT TUCKER, Appellant
- **Court:** Oregon Supreme Court
- **Decided:** February 11, 1993
- **Citations:** 315 Or. 321; 845 P.2d 904; 1993 Ore. LEXIS 7
- **Precedential status:** Published
- **Opinion:** Concurrence by Unis
- **Judges:** Graber, Unis, Gillette, Van Hoomissen, Fadeley
- **Cited by:** 75 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by State v. Barrett, 331 Or. 27 (2000).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9560489

## How later opinions describe it (automated extraction)

- holding that the requirements for separate convictions under former ORS 161.062(1) (1985), repealed by Or. Laws 1999, ch 136, § 1-which is the "not quite identical twin" of ORS 161.067(1), State v. Crotsley , 308 Or. 272, 276 n. 3, 779 P.2d 600 (1989) -"are not met where one o…
- stating that “[i]t is not error for a trial court to refuse to give a requested instruction if the instruction given by the court, although not in the form requested, adequately covers the subject of the requested instruction”
- rejecting argument that the term “criminal acts of violence,” as that phrase was used in ORS 163.150(1)(b)(B), referred to a “relatively narrow” range of conduct likely to result in physical injury to persons, “including homicide, forcible rape, aggravated assault, and arson”
- affirming trial court’s denial of the defendant’s requested instructions regarding specific factors that it should consider in mitigation of his sentence on the ground that the instructions were comments on the evidence, pro- hibited by ORCP 59 E
- rejecting argument that the term “criminal acts of violence,” as that phrase was used in ORS 163.150(1)(b)(B

## Opinion text

UNIS, J.,
concurring.
I join in the opinion of the court, but write separately to comment on a trial court ruling that disallowed certain lay opinion testimony.
During the state’s direct examination of Tsow, defendant’s cell mate at Polk County Jail, the following colloquy occurred:
“[PROSECUTOR]: Okay. In his conversations with the group that you heard, did [defendant] ever indicate whether this was some sort of accident that they were shot?
“[WITNESS]: No.
“[PROSECUTOR]: What did he * * * say to you in that regard?
“[WITNESS]: He told me he shot them both point blank. And he seemed real proud of the fact that he did that.
“[DEFENSE COUNSEL]: I’m going to object to the characterization of that, Your Honor.
‘ ‘ [THE COURT]: Sustained. That characterization will be stricken from the record. I instruct the jury to disregard that remark.” (Emphasis added.)
Although the majority chose not to comment on the correctness of the trial court’s ruling concerning the witness’s (Tsow’s) characterization that I have emphasized above, 315 Or at 329 n 10, I wish to do so in order to provide a better understanding of the rules relating to lay opinion testimony.
OEC 701, which provides a liberal avenue for the admissibility of lay opinion testimony, State v. Lerch, 296 Or 377, 383 , 677 P2d 678 (1984), permits the type of characterization expressed by Tsow. OEC 701 permits lay opinion testimony when each of the rule’s standards for admissibility is satisfied. 1
*340 The first standard articulated in OEC 701(1), which requires that the opinion or inference of a lay witness be “Nationally based on the perception of the witness,” has two distinct limitations. The first limitation is the personal knowledge requirement, i.e., the witness must have personal knowledge of the facts from which the opinion or inference is to be derived. See OEC 602 2 (lay witnesses precluded from testifying to facts unless they have personal knowledge of those facts) . 3 The second limitation is the rational connection requirement, i.e., there must be a rational connection between the opinion or inference and the perceived factual basis from which it derives. The rational connection requirement means only that the opinion or inference advanced by the witness is one which a normal person could form on the basis of the observed facts. 4 See 3 Weinstein’s Evidence 701-18 (1992) (stating principle as to FRE 701, the federal counterpart to OEC 701, but using word “would” instead of “could”). See also Kirkpatrick, Oregon Evidence 421 (2d ed 1989) (“the ‘rationally based’ requirement means that the opinion must be one that a person could reasonably deduce from the perceived facts”). 5
The second standard for admissibility of lay opinion testimony — the helpfulness standard — is found in OEC 701(2), which provides that lay opinion testimony must be *341 “[h]elpful to a clear understanding of testimony of the witness or the determination of a fact in issue.” 6 That the opinion or inference “embraces an ultimate issue to be decided by the trier of fact” does not affect its admissibility under OEC 701. OEC 704. 7
Tsow’s characterization satisfied OEC 701’s standards of admissibility. Tsow had personal knowledge of the facts from which his characterization of defendant’s attitude was derived, the characterization is one that a normal person could form on the basis of the perceived facts, and the characterization is helpful to a clear understanding of Tsow’s testimony, as well as to the determination of a fact in issue in this case. The characterization provided the jury with information that it would not otherwise have had and was useful to the jury in performing its factfinding function. Defendant was charged with personally and intentionally killing two people. Tsow’s “shorthand” description that defendant “seemed real proud of the fact that he [shot the victims point blank]” provided the jury with evidence from which it could infer that defendant acted with the requisite mental state (intent) and that the shootings were not attributable to accident, mistake, or negligence. See State v. Wright, 315 Or 124, 132 , 843 P2d 436 (1992) (“ ‘[p]eople often speak in the shorthand of opinions or conclusions, not in the form of a recitation of pure fact’ ”) (quoting State v. Lichty, 313 Or 579, 585 , 835 P2d 904 (1992)); State v. Lerch, supra, 296 Or at 383 (referring to legislative commentary approving proposition in prior case that “a lay witness may testify as to what he has perceived by using a ‘shorthand’ description”). Thus, Tsow’s characterization added something helpful to the description of defendant’s statements about the shootings. 8
*342 As the majority concludes, there was evidence, other than Tsow’s characterization of defendant’s attitude about the shootings, to which defendant did not object from which the “jury fairly could agree with the prosecutor’s characterization during argument that defendant boasted and spoke with exaggeration and excessive pride about what he had done.” 315 Or at 330 . The prosecutor’s characterization was a permissible argument even without Tsow’s testimony that the trial court disallowed. The prosecutor’s characterization of defendant’s “bragging” about the murders was based directly on the evidence that was allowed, or at least could reasonably have been inferred from that evidence. See State v. Townsend, 237 Or 527, 532, 392 P2d 459 (1964) (argument should be kept within the confines of the record); Zimmerle v. Childers, 67 Or 465, 473-75 , 136 P 349 (1913) (counsel should in argument confine his remarks to the facts in evidence). The prosecutor’s closing argument did not, therefore, step over the boundary of permissible comment. In reality, the fact that the trial court sustained defense counsel’s objection and disallowed Tsow’s characterization testimony placed defendant in a better position than he would have been in had the trial court allowed the testimony, because that stricken lay opinion testimony would have provided the jury additional evidence to support its finding that defendant acted with the requisite mental state (intent).
Gillette and Van Hoomissen, JJ., join in this opinion.
OEC 701 provides:
“If the witness is not testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to those opinions or inferences which are:
*340 “(1) Rationally based on the perception of the witness; and
“(2) Helpful to a clear understanding of testimony of the witness or the determination of a fact in issue.”
OEC 602 provides:
“Subject to the provisions of [OEC 703], a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness.”
“Whether a witness has personal knowledge is a question of conditional relevancy under [OEC] 104(2).” Kirkpatrick, Oregon Evidence 421 (2d ed 1989).
If expertise is required to supply the rational link between the opinion or inference and the perceived facts, the opinion or inference will not be admissible unless the requirements for expert testimony under OEC 702 have been met.
Whether an opinion or inference satisfies the rational connection requirement is a question for the court under OEC 104(1). Kirkpatrick, supra, at 421. See also M. Graham, Federal Practice and Procedure: Evidence 230-31, § 6631 (Interim ed) (stating same principle as to FRE 701, the federal counterpart to OEC 701).
Whether the proffered opinion or inference satisfies the helpfulness standard ■ is an issue for the court under OEC 104(1). Kirkpatrick, supra, at 421.
OEC 704 provides:
“Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
“The Commentary also states that the legislature did not intend by adopting [OEC] 701 to make inadmissible any opinion previously admissible under Oregon law.” Kirkpatrick, supra, at 427 (citing the statement in State v. Broadhurst, 184 Or 178 , 196 P2d 407 (1948), cert den 337 US 906 (1949), that *342 another is upset, worried, and heartbroken as an example of a lay opinion held to be proper under prior Oregon law).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9560489. Public record. Not legal advice.