# State v. Lowell > Court of Appeals of Oregon · April 18, 2012 · 249 Or. App. 364 URL: https://www.frixlaw.com/law-library/cases/9754583 ## Case - **Full name:** STATE OF OREGON, Plaintiff-Respondent, v. TIMMOTHY SCOTT LOWELL, Defendant-Appellant - **Court:** Court of Appeals of Oregon - **Decided:** April 18, 2012 - **Citations:** 249 Or. App. 364; 277 P.3d 588; 2012 Ore. App. LEXIS 469; 2012 WL 1332107 - **Precedential status:** Published - **Opinion:** Concurrence by Edmonds - **Judges:** Ortega, Sercombe, Edmonds - **Cited by:** 22 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9754583 ## How later opinions describe it (automated extraction) - explaining that, where the case “boiled down *** to a credibility contest between the complainant and defendant, evidence commenting on the credibility of either was likely to be harmful,” especially where that testimony was “couched in terms of [the witness’s] expertise in id… - concluding that the trial court committed legal error by failing to exclude detective’s comments regarding defendant’s credibility - holding that the trial court committed plain error by allowing an investigating detective to testify that he “didn’t think that [the defendant] was being very honest” during his interview - explaining that there was a significant risk that a detective’s testimony that a defendant was not credible affected the jury’s verdict because it was couched in terms of his expertise and training in detecting untruthfulness - holding that the trial court committed plain error by allowing an investigating detective to testify, during the state’s direct examination, that he “didn’t think that [the defendant] was being very honest” during his interview ## Opinion text EDMONDS, S. J., concurring. In this case, Detective Staples commented directly on the credibility of defendant’s prearrest statements without objection from defendant. Based on existing precedents, I *371 concur with the majority’s conclusion that the failure of the trial court to sua sponte strike Staples’s testimony commenting on defendant’s credibility is error apparent on the face of the record. However, as amplified below, I write separately to express my discomfort with a rule of law that appears to require trial courts to intervene sua sponte and strike testimony without the benefit of an objection or a motion from a party in order to avoid error and the reversal of a criminal conviction. As defendant acknowledges, the claim of error made on appeal was not preserved in the trial court. But for the “plain error” exception in ORAP 5.45(1), defendant’s claim of error would not be reviewable. I agree with the majority’s conclusion that “plain error” exists on the record before us in light of the language in State v. Milbradt, 305 Or 621 , 756 P2d 620 (1988), and State v. McQuisten, 97 Or App 517 , 776 P2d 1304 (1989). In Milbradt , the court emphasized, “We suggest in the future that if counsel attempts to elicit similar testimony [(counsel had asked a psychologist what evidence of deception the witness discerned from the witness’s evaluation),] the trial judge, sua sponte, should summarily cut off the inquiry before a jury is contaminated by it.” 305 Or at 630 . In McQuisten , the defendant moved to strike statements made by an officer that the complaining witness was telling the truth. The trial court denied the motion, and, on reconsideration, we reversed and remanded for a new trial. Relying on Milbradt , we pointed out that “the trial court had a duty, sua sponte, to not allow testimony which commented on a witness’ credibility.” McQuisten, 97 Or App at 520 . What makes the application of the foregoing precedents uncomfortable is that defendant admitted in his opening statement that he had lied to the officer. In that statement, defense counsel told the jury: “Good morning, ladies and gentlemen. We appreciate you being here. The first thing Mr. Lowell would like you to know is that he did not have sexual intercourse with [the complainant]. This is going to be a case that there’s not going to be any physical evidence. What you will hear today is that indeed Mr. Lowell did initially lie to the police, but in his mind, he had good reason to. *372 “He was with [the complainant] and he was smoking pot. And he knew that was illegal and he knew he should not be doing it. You are going to hear all about that from him. “Further, the thing that he wants you to know is that he has remained consistent in his assertion that he did not have sex with her. The officer questioned him over and over and over again, and he remained consistent that he did not have sex with her * * *. “In fact, you will hear in an audiotape where he asserts that over and over and over and over. So that’s what you’re going to hear today is Mr. Lowell telling you over and over and over again that he did not have sex with [the complainant].” Based on defendant’s opening statement, the state argues that it is reasonable to infer that defendant made a strategic decision not to object to Staples’s testimony. As further support for that argument, the state points to defendant’s cross-examination of Staples about why a suspect might lie during a police interview and of the complainant regarding her credibility. In closing argument, defendant again reiterated his position that the complainant had fantasized or lied about having sex with him. The state’s argument is predicated on the legal proposition that, where there are competing inferences — one of which is that a party made a conscious decision not to object — then the “apparent error on the record” exception is inapplicable and should not be utilized by a reviewing court. See, e.g., State v. Gornick, 340 Or 160 , 130 P3d 780 (2006). The majority rejects the state’s argument, concluding: “None of the portions of the record to which the state refers supports an inference that defendant had a strategic reason for failing to object. Rather, the cited portions constitute only attempts to explain the inconsistent parts of defendant’s statements to Staples during the interview and to discredit the complainant’s version of the facts.” 249 Or App at 369. I agree with the majority’s reasoning. It cannot be reasonably inferred that, by attempting to minimize the effect on the jury of his inconsistent statements to Staples, *373 defendant’s strategy was to not object to Staples’s comments regarding defendant’s credibility. That said, however, it is apparent from a reading of the entire record that both parties considered it fair game to offer any evidence that was probative of whether the complaining witness or defendant was telling the truth about whether sexual intercourse occurred. Indeed, Staples testified, at one point without objection: “Q. Okay. So at this point, then, what was your impression about his honesty in the investigation so far? “A. I didn’t think that he was being very honest and upfront. “Q. Okay. So what happened next? “A. At this time, I — I asked him again, you know, did you have sex with her, and he stated: I swear to God I didn’t have sex with her. “To me, that’s an indication that somebody is not being truthful. I’ve gone to several classes on interview and interrogation and there are certain phrases that are said and that’s one of the phrases of an indication if somebody is being less than truthful.” If defendant had made a timely objection to the above testimony, the trial court could have explored with the lawyers why they believed that the testimony was properly admissible or inadmissible. Defendant’s failure to object and his silence in this case prevented the trial court from making an assessment or a record regarding whether the testimony should have been admitted in light of the opening statement and all the other evidence in the case. In general terms, the application of the “plain error” rule under these circumstances permits defendants to lie in ambush and to obtain reversal based on a claim of error regarding an issue that apparently neither party cared about at the time of trial. In summary, this court is an “error-correcting” court, and its obligation is to follow precedents as established by the Supreme Court. Moreover, the state does not advance any persuasive reason why the “plain error” rule, as defined by its existing construct, does not apply. Nonetheless, my ultimate point is that the Supreme Court should refine the “plain error” rule by establishing specific parameters so that it is *374 limited to circumstances where it can be demonstrated by the proponent of the use of the rule that the rule’s underlying policy is served by its use. Under the current state of the law, it behooves defendants to insert error into the record at the trial level by remaining silent in order to avoid any curative efforts by trial courts or to benefit from their own ignorance of the law in order to assert a claim of plain error for the first time on appeal as a basis for reversal. The court should revisit the policies underlying preservation and “plain error” and define them clearly for the benefit of bench and bar. It is that belief that is at the core of my discomfort and has prompted the writing of a separate opinion in this case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9754583. Public record. Not legal advice.