Submitted on June 18, 2013.
Baker County Circuit Court 10290 Ronald J. Pahl, Judge.
Peter Gartlan, Chief Defender, and Erica Herb, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Laura S. Anderson, Senior Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
ORTEGA, P. J.
A jury convicted defendant of unlawful possession of methamphetamine, ORS 475.894, and unlawful delivery of methamphetamine within 1, 000 feet of a school, ORS 475.892. Defendant appeals, raising four assignments of error, three of which assert that the trial court erred in entering a judgment based on a nonunanimous jury verdict. We reject those assignments of error without discussion. Defendant asserts in his first assignment of error that the court erred by allowing a detective's testimony regarding defendant's credibility. The state concedes that the admission of that testimony was error, but argues that it was harmless. We conclude that admission of that testimony was not harmless and, therefore, reverse and remand.
Our review to determine whether an evidentiary error was harmless requires us to review all pertinent portions of the record. State v. Sierra-Depina, 230 Or.App. 86, 88, 213 P.3d 863, rev den, 347 Or 290 (2009). With that standard in mind, the facts of this case are as follows. Following up on a tip suggesting that defendant had manufactured methamphetamine in a motel room, Baker City detective Rilee followed defendant to a restaurant across from Baker High School. Once there, Rilee observed defendant carry a brown paper bag from his truck into the restaurant, and informed Oregon State detective Conner, who was also observing the area, of what he had seen. A few minutes later, Conner entered the restaurant where he observed defendant sitting at a table with a woman, Chase. Defendant left the bag with Chase upon leaving the restaurant.
Connor questioned Chase after defendant's departure and searched the bag that defendant had left with her. The bag contained about 20 grams of methamphetamine and related paraphernalia, including two glass pipes with white methamphetamine-like residue on them and a leather case with "M Watts" (defendant's first initial and last name) written on it. During questioning, Chase told Connor that she had set up methamphetamine deals in the past and was at the restaurant setting up a methamphetamine deal for defendant.
Meanwhile, another officer, Davidson, conducted a traffic stop with defendant. When Rilee arrived he questioned defendant, who denied any knowledge of the methamphetamine and paraphernalia found in Chase's possession. According to defendant, Chase owned the methamphetamine found in the bag and was responsible for writing "M Watts" on the leather case. The officers searched defendant's truck, however, and discovered a man's coat with a methamphetamine pipe in the pocket. At trial, defendant claimed that he was in Baker City to hunt, fish, and possibly buy car parts.
Officer Rilee testified at trial that, based on his training and experience, defendant's pauses during their conversation indicated deception:
"I asked * * * if he'd ever been with somebody that had purchased methamphetamine or if he has ever purchased methamphetamine. I asked [defendant] if he had ever sold methamphetamine. And then after another pause I received a reply of, 'No.'"
After answering questions about his training in analyzing answers to interview questions, Rilee gave the following testimony:
"[Prosecutor]: Given [your interrogation] training and experience, did you use any of that education as it relates to what you saw in ...