State v. Chandler

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: BALDWIN, J.
• Citation: State v. Chandler, 360 Or 323, 380 P.3d 932 (Or. 2016)
• Decision Date: 22 September 2016
• Docket Number: CC CR1101757,CA A152098,SC S063096
• Parties: State of Oregon, Respondent on Review, v. Brian James Chandler, Petitioner on Review.

360 Or. 323

380 P.3d 932

State of Oregon, Respondent on Review,

v.Brian James Chandler, Petitioner on Review.

CC CR1101757

CA A152098

SC S063096

Supreme Court of Oregon.

Argued and submitted November 13, 2015.

September 22, 2016

Eric Johansen, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

Michael A. Casper, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Baldwin, Brewer, and Nakamoto, Justices.^**

BALDWIN, J.

In this criminal case, defendant was convicted of two counts of first-degree sexual abuse. ORS 163.427. Defendant assigns error to the trial court's admission of a videotaped pretrial interrogation of defendant by Detective Gates. The videotape, which was played for the jury, included statements by Gates indicating her belief that defendant was lying and that the victims were telling the truth. On appeal, defendant argued that the trial court erroneously denied his motion to redact Gates's statements, because, under OEC 403, the prejudicial impact of those statements outweighed their probative value. The Court of Appeals concluded that defendant had failed to preserve his argument under OEC 403. The court rejected defendant's remaining argument that Gates's statements constituted impermissible vouching testimony. We allowed review and, for the reasons we explain below, affirm.

I. BACKGROUND

The Court of Appeals summarized the undisputed facts as follows:

“The conduct at issue occurred at the home of D, the 12–year–old victim. She lived there with her mother, father, and two brothers. A, the seven-year-old victim, is related to the family and stayed at the home one night. Defendant was a close friend of the family and also stayed that night. Both D and A later reported to family members that defendant had touched them. D said that she awoke to find defendant rubbing her thigh near her genital area. A said that defendant had touched her under her clothes. She later told a CARES interviewer that defendant had touched her on her ‘pee’ with his hand.

“Gates received a report of suspected abuse from the Department of Human Services and attended A's CARES interview. Gates later interviewed defendant; at the end of that approximately two-hour interview, she arrested defendant. That videotaped interview is the subject of this appeal. In the interview, defendant repeatedly denied the allegations. Gates made numerous comments indicating that she believed the victims and that defendant was not being truthful.”

State v. Chandler , 269 Or.App. 388, 389–90, 344 P.3d 543 (2015).

Before trial, defendant moved to redact portions of the videotaped interview, arguing that those portions were inadmissible for various reasons. As relevant to this appeal, defendant contended that certain of Gates's statements constituted impermissible comments on the credibility of other witnesses that are categorically inadmissible. We do not quote all of the challenged excerpts; however, the following excerpts are representative of the type of statements that Gates made throughout the interview to the effect that she believed the victims to be truthful and defendant to be untruthful:

“[GATES]: [B]ut if I have someone saying a completely different story than everyone else—I have a little kid saying you did something and she's crying and scared, doesn't want to go back to grandma and grandpa's, has no reason to lie about this, has no reason to pin it on you. She doesn't know you.

“ * * * * *

“I have a little girl that's saying what she's saying and I've got video of it and it's extremely telling 'cause it's heart breaking. The girl had no history of, you know, lying, making accusations against people that have turned out to be lies.

“ * * * * *

“[GATES]: * * * So here's how I work. When I talk to people[,] usually the suspect is the very last person I talk to 'cause I want to know as much about you as I can. I want to know * * * as much about that incident, what people saw and what people heard, you know, what you talked to people about since that happened.

“I want to know everything. I want to know about your past. I want to know what you're doing now. And I want to talk to you and talk to you like I don't know any of it and see if you're going to lie to me about stuff you don't even have to lie about.

“And that's exactly what you've done. And so some of [the] stuff I know you've been honest about. And I can see you act a certain way when you say something that's truthful and I see you act a different way when you're saying something that I already know is a lie.

“So it's kind of nice because you're lying[,] thinking you're helping yourself, but it's showing me what you look like and how your body reacts when you lie.

“ * * * * *

“[GATES]: And that's what I'm saying. If you're just going to say, ‘Oh, everybody's a liar. All these people that I trust that are family to me that consider me an uncle, and, you know, I'm like a son to them, they're all suddenly lying to me. They all lied about me and they have no reason to be lying about me because they just are.

“ ‘Believe me, I didn't do it. I wasn't there. I suddenly have amnesia on these parts. * * * But trust me[,] I'm not a bad guy.’ * * * Why should I trust you if you lied to me? You're telling me to go against logic.

“Now, if you just told me, ‘Yeah, I did it. This is why and this is who [I am],’ then maybe I could believe who you are. But right now you're already lying to me, so why would I believe who you're saying you are? It goes against what you're showing me that you are.”

The trial court denied defendant's motion to redact, concluding that the rule prohibiting one witness from commenting on the credibility of another witness did not apply to the challenged statements.¹ The court explained:

“The rest of the thing * * * falls into two categories: * * * number one, * * * this is not a rule where * * * one witness is testifying, giving his opinion as to another witness's credibility.

“It's [a] fair comment when the officer during [her] interrogation says, ‘Well, somebody else told me this and somebody else told me that.’ And so I don't think that's a violation of the rule and so [s]he'll be allowed to do that.

“As far as the officer[']s making statements that some witnesses said this and some witnesses said that, which is, of course, somewhat hearsay, but I think[,] * * * taken in the context of the interrogation[,] the intent is to try to get the defendant's response.

“And, therefore, I don't think there's any violation of any rules.”

Defendant appealed, assigning error to the trial court's denial of his motion to redact. Defendant argued that Gates's statements indicating her belief that defendant was untruthful and that the victims were truthful constituted impermissible vouching evidence, and that they should have been excluded under OEC 403.² The state responded that defendant failed to preserve his argument under OEC 403 and that, even assuming his argument was preserved, the trial court did not abuse its discretion by admitting the challenged evidence.

The Court of Appeals agreed with the state that defendant had failed to preserve his argument and affirmed. Chandler , 269 Or.App. at 389, 344 P.3d 543. The court noted that defendant had not developed any argument under OEC 403 in his motion to redact, nor cited the primary case on which his appellate argument relied—State v. Southard , 347 Or. 127, 140–41, 218 P.3d 104 (2009) (holding that medical diagnosis of child sex abuse is inadmissible under OEC 403 in absence of physical evidence, because it poses risk that “the jury will not make its own credibility determination, which it is fully capable of doing, but will instead defer to the expert's implicit conclusion that the victim's reports of abuse are credible”). Instead, defendant had argued in the trial court only that Gates's comments were inadmissible under the rule that one witness may not opine on the credibility of another witness. The Court of Appeals noted that those two principles—the principle that a witness may not opine on another witness's credibility and the OEC 403/ Southard unfair prejudice principle—are distinct. Chandler , 269 Or.App. at 393, 344 P.3d 543. In the court's view, had defendant made an OEC 403 argument, “the trial court would have had occasion to weigh the probative value against the asserted prejudice, make a record of its findings, and give an appropriate limiting instruction if the court deemed it necessary.” Id. The court thus concluded that defendant failed to preserve his argument under OEC 403, and, because he had not requested plain-error review of that argument, the court did not address it further. Id.

The Court of Appeals rejected defendant's remaining argument that the trial court erred in admitting Gates's statements because those statements impermissibly commented on the credibility of other witnesses. Id. at 394, 344 P.3d 543. In synthesizing this court's case law on the rule prohibiting one witness from commenting on the credibility of another witness—also known as the rule against “vouching” testimony—the court appeared to draw a hard line between credibility opinions that are rendered in court versus outside of court. The court noted that this court's line of vouching cases “has involved in-court testimony, not (as in this case) out-of-court statements admitted as evidence.” Id. In particular, the Court of Appeals cited this court's decision in State v. Odoms , 313 Or. 76, 829 P.2d 690 (1992), in support of its conclusion that the rule against vouching testimony does not encompass out-of-court statements commenting on a witness's credibility. Chandler , 269 Or.App. at 394, 344 P.3d 543 (citing Odoms , ...