State v. Jury

• Decision Date: 20 November 2002
• Citation: 185 Or.App. 132,57 P.3d 970
• Parties: STATE of Oregon, Respondent, v. Joseph Andrew JURY, Appellant.
• Court: Oregon Court of Appeals

57 P.3d 970

185 Or.App. 132

STATE of Oregon, Respondent, v. Joseph Andrew JURY, Appellant.

93CR875; A83517.

Court of Appeals of Oregon, En Banc.¹

Argued and Submitted September 27, 2001;

Resubmitted August 7, 2002.

Decided November 20, 2002.

Eric R. Johansen, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, WOLLHEIM and BREWER, Judges.

Resubmitted En Banc August 7, 2002.

HASELTON, J.

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, 331 Or. 511, 16 P.3d 503 (2000), and State v. Cleveland, 331 Or. 531, 16 P.3d 514 (2000). Defendant did not object to the admission of the evidence on the ground that the police had failed to obtain a court order before using the body wire. The question on appeal, however, is whether the admission of the evidence constitutes an error apparent on the face of the record and whether this court should review it pursuant to ORAP 5.45. We agree with defendant that the body-wire evidence was erroneously admitted, that the error is apparent on the face of the record, and that it is appropriate for us to exercise our discretion to correct it. We therefore reverse defendant's convictions and remand.

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, 126 Or.App. 303, 868 P.2d 761 (1994), vac'd, 331 Or. 693, 21 P.3d 1086 (2001), rev'd and rem'd, 175 Or. App. 283, 27 P.3d 165 (2001). Bass was the first case to address the constitutional issues, but we relied on two of our previous decisions so far as the statutory issue was concerned: State v. Casteel, 122 Or.App. 218, 857 P.2d 204 (1993), and State v. Evans, 113 Or.App. 210, 832 P.2d 460 (1992). In the present case, defendant did not make statutory or constitutional claims concerning the propriety of the body wire, such as were at issue in Bass, Casteel, or Evans. Rather, he argued only that the evidence should be excluded as overly prejudicial.

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, 331 Or. at 525-30, 16 P.3d 503; Cleveland, 331 Or. at 534-35, 16 P.3d 514. After those decisions, the state filed its respondent's brief in the present case, arguing that defendant failed to preserve the claimed error for appellate review and that the error was not apparent on the face of the record. The state acknowledges that, if we do consider defendant's assignment of error, the trial court's admission of the body-wire evidence was erroneous.

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, 310 Or. 347, 355, 800 P.2d 259 (1990). If the asserted error satisfies those criteria, we then must exercise our discretion in deciding whether to correct the error. Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991).

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 "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.² 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. The "benchmark" for error is the law existing as of the time the appeal is decided. See, e.g., State v. McCain, 175 Or. App. 274, 28 P.3d 641 (2001)

(a defendant who preserved issue in trial court obtained reversal on appeal based on the newly announced rule of law from Fleetwood although trial court's ruling was consistent with case law that predated Fleetwood).

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, 312 Or. at 381-83,

823 P.2d 956; Brown, 310 Or. at 355,

800 P.2d 259. The operative language of the rule and its direct antecedents — "error," "apparent," and "on the face of the record" — is not temporally restricted to the time of trial.

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, 177 Or. App. 627, 637-38, 33 P.3d 1050 (2001),

rev. den., 334 Or. 76, 45 P.3d 450 (2002); State v. Daugaard, 142 Or.App. 278, 284, 921 P.2d 975 (1996),

rev. den., 334 Or. 75, 45 P.3d 449 (2002). Indeed, in State v. Farr, 8 Or.App. 78, 492 P.2d 305 (1971),

rev. den., (1972), cert. den., 406 U.S. 973, 92 S.Ct. 2423, 32 L.Ed.2d 674 (1972), we addressed and granted relief on a claim of error in circumstances closely analogous to those presented here:

"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 P.2d 314, 259 Or. 232, 485 P.2d 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

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