State v. Marquez-Vela

• Decision Date: 05 November 2014
• Docket Number: 070833798, A152189.
• Citation: 266 Or.App. 738,338 P.3d 813
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Raymundo MARQUEZ–VELA, aka Raymundo Marques–Vela, aka Raymundo Vela Marquez, Defendant–Appellant.
• Court: Oregon Court of Appeals

266 Or.App. 738

338 P.3d 813

STATE of Oregon, Plaintiff–Respondent

v.Raymundo MARQUEZ–VELA, aka Raymundo Marques–Vela, aka Raymundo Vela Marquez, Defendant–Appellant.

070833798, A152189.

Court of Appeals of Oregon.

Argued and Submitted July 29, 2014.

Decided Nov. 5, 2014.

Robin A. Jones, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Timothy A. Sylwester, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge.

Opinion

TOOKEY, J.

Defendant appeals a judgment of conviction for murder, ORS 163.115(1),¹ (Count 1), arguing that the trial court erroneously allowed Ober, a police detective, to comment on his credibility. We review for legal error. See State v. Lowell, 249 Or.App. 364, 367–68, 277 P.3d 588, rev. den., 352 Or. 378, 290 P.3d 814 (2012) (concluding that the trial court committed legal error by failing to exclude detective's comments regarding defendant's credibility). We agree with defendant that the trial court erred by failing to exclude Ober's testimony that defendant, during a police interrogation, “was dishonest[,]” “was untruthful[,]” “was lying about the whole situation[,]” and “was selectively leaving out details that he thought [were] harmful to him.” We also agree with defendant that the trial court's error was not harmless. Accordingly, we reverse and remand defendant's conviction on Count 1, remand for resentencing, and otherwise affirm.²

The record discloses the following facts. Defendant's neighbor, Graham, was alerted by another person that defendant was assaulting defendant's girlfriend. Graham went down to a neighbor's property and attempted to stop the assault by yelling at defendant from beneath defendant's window. Defendant left his apartment, went down to the neighbor's property, got into an altercation with Graham, and stabbed Graham with a carving fork. Graham died on the scene, and defendant fled to Mexico.

Approximately three years later, defendant turned himself in and was interrogated by Ober. During the interrogation, defendant told Ober that he was intoxicated on the night in question and that he remembered little about his actions because he had “blanked out.” Defendant was charged with felony assault in the fourth degree and murder, and he raised the defense of voluntary intoxication.

At trial, Ober testified extensively about his interrogation of defendant. To elicit that testimony, the prosecutor posed a series of questions about specific parts of the interrogation, asked Ober whether he had “confronted” defendant with statements that were inconsistent with defendant's claim that he had “blanked out,” and solicited Ober's opinion about whether defendant's statements were contradictory. Although Ober provided extensive testimony at trial, we set forth only those parts of his testimony that are relevant to our analysis.

During direct examination, the prosecutor engaged in the following exchange with Ober:

“[PROSECUTOR:] What was [defendant's] demeanor in this interview?

“[OBER:] He was very nonchalant, very casual. He kind of smiled a lot, laughed a lot at seemingly, you know, inappropriate times. He was polite and courteous but he didn't appear to be very serious about it.”

Later, but still during direct examination, the following exchange took place:

“[PROSECUTOR:] And what was his demeanor at this point in the interview? Was he still very nonchalant?

“[OBER:] Yes.”

During cross-examination, defense counsel pursued the following line of questioning:

“[DEFENSE COUNSEL:] And you described his attitude as nonchalant. * * * Is that right, that you said he was nonchalant when you interviewed him in San Diego?

“[OBER:] Yeah. He didn't seem to be too concerned about it, nonchalant. In fact, when we met him at the border he kind of smiled, looked at us, hesitated, kind of turned around, kind of played with us whether he was going to cross the border or not, and then that attitude continued throughout the interview.

“ * * * * *

“[DEFENSE COUNSEL:] Okay. And so is it possible that that's a coping mechanism?

“[OBER:] I don't understand.

“[DEFENSE COUNSEL:] This nonchalant attitude, is that maybe the way that he's coping with an extremely stressful situation?

“[OBER:] I don't know.”

Finally, during redirect examination, the following exchange occurred:

“[PROSECUTOR:] Counsel asked you if the defendant's smiling, nonchalant, relaxed atmosphere was some sort of coping mechanism. Have you interviewed a lot of people, Detective?

“ * * * * *

“Have you seen people [employ] coping mechanisms, Detective?

“[OBER:] Yes.

“[PROSECUTOR:] And in your opinion, is that what this defendant was doing?

“ * * * * *“[OBER:] I thought that it was more his way of trying to figure out what we know, listening to what he's confronted with, and then responding in a way that would help him in his best interest. I think that he was dishonest, that he was choosing—

“[DEFENSE COUNSEL:] I'm going to object. I don't think that he can state an opinion as to what—He can say what was said. He can say if it's—

“THE COURT: I think he can say that. That's his opinion.

“[OBER:] I think he was dishonest. I think he was untruthful. I think he was lying about the whole situation and he was selectively leaving out details that he thought was harmful to him. He—

“THE COURT: Okay. You've answered it enough. We don't want to get to credibility.

“[DEFENSE COUNSEL:] And again, I want to interpose an objection on the record to that last answer. It's a comment on credibility.

“THE COURT: Go ahead.

“BY [PROSECUTOR] (Continuing)

“Just to be clear, Detective, are you trying to comment on the defendant's credibility in any way, shape, or form?

“[OBER:] No. I'm trying—observing what I thought his behavior was.”

(Emphases added.)

Defendant did not testify at trial. During closing argument, the prosecutor argued that defendant's conduct was intentional, noted defendant's claim that he did not remember some of what had happened on the night in question, and stated, for example, that defendant “seems to remember things differently when really pressed.” Defendant was convicted of murder.

On appeal, defendant argues that the trial court erred by failing to exclude Ober's comments on defendant's credibility as set forth above. He further argues that that error was not harmless because the jury's verdict on the murder charge turned on the jury's assessment of whether defendant acted intentionally, rather than recklessly, and the jury's determination “was almost entirely a matter of its assessment of defendant's credibility.”

The state “does not dispute” that Ober's testimony that defendant “was dishonest[,]” “was untruthful[,]” and “was lying” would have been inadmissible if it “had been elicited during direct examination.” Nevertheless, the state argues that that testimony was admissible as rebuttal evidence—that is, it was admissible because it was elicited during the prosecutor's redirect examination of Ober to rebut defense counsel's suggestion, made during cross-examination, that defendant displayed a “nonchalant” attitude as a coping mechanism to deal with stress. Thus, according to the state, “defense counsel opened the door to [Ober] opining, to the contrary, that defendant was being ‘dishonest’ and manipulative for strategic purposes.” The state further argues that any error was harmless.

The Oregon Supreme Court has stated that “[w]e reject testimony from a witness about the credibility of another witness[.]” State v. Middleton, 294 Or. 427, 438, 657 P.2d 1215 (1983). Thus, under Oregon law, “a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth.” Id. The court has also stated, “We have said before, and we will say it again, but this time with emphasis—we really mean it * * *. The assessment of credibility is for the trier of fact[.]” State v. Milbradt, 305 Or. 621, 629, 756 P.2d 620 (1988) (emphasis added). Thus, as time has gone on, the court has “amplified the importance of that rule [.]” State v. Salas–Juarez, 264 Or.App. 57, 63, 329 P.3d 805 (2014).

“Applying that principle is a straightforward matter when one witness states directly that he or she believes another witness, or that the other witness is honest or truthful. However, statements that fall short of such overt vouching also may be impermissible.” State v. Lupoli, 348 Or. 346, 357, 234 P.3d 117 (2010) (concluding that health care professionals' testimony regarding child victims of sexual abuse was impermissible vouching). Under the principle set forth in Lupoli, “a witness at trial may not comment on the credibility of another person regarding statements made by the other person, even if the other person is not a witness at trial.” State v. Brooks,

247 Or.App. 676, 681 n. 2, 270 P.3d 388, rev. den., 352 Or. 265, 286 P.3d 1230 (2012) (emphases omitted).

As noted, the state here “does not dispute” that the challenged testimony would ordinarily be inadmissible. That position is well considered, given that Ober directly commented on defendant's credibility. See Lowell, 249 Or.App. at 366–68, 277 P.3d 588 (trial court committed plain error by admitting detective's testimony commenting on the defendant's credibility, including that the detective “didn't think that [the defendant] was being very honest” during the investigation).

The state nevertheless argues that that testimony was admissible because defendant “opened the door” to Ober's comments. To support that contention, the state cites three cases: State v. Miranda, 309 Or. 121, 128, 786 P.2d 155, cert. den., 498 U.S. 879, 111 S.Ct. 212, 112 L.Ed.2d 171 (1990) (“A defendant's own inquiry on direct examination into the contents of otherwise inadmissible statements opens the door to further inquiry on cross-examination...