Argued and Submitted March 25, 2014.
Marion County Circuit Court. 12C40217. Albin W. Norblad, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Carson L. Whitehead, 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.
[262 Or.App. 544] HADLOCK, J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), in violation of ORS 813.010, and for unlawfully refusing to take a breath test, in violation of ORS 813.095. In a single assignment of error, he argues that the trial court erred " by permitting the prosecutor to ask defendant [during cross-examination] whether the police officer witnesses were lying." Defendant acknowledges that he did not object to the prosecutor's line of questioning and concedes that the argument he raises on appeal is not preserved. Nonetheless, he asks us to reverse his convictions and remand for a new trial on the ground that the trial court plainly erred by failing to exclude the testimony, despite the lack of any defense objection. We disagree with defendant's contention that the trial court had a duty, in the circumstances present here, " to sua sponte preclude the prosecutor from asking whether prosecution witnesses were lying." Accordingly, defendant's unpreserved argument presents no basis for reversal.
In evaluating whether the trial court plainly erred by not interrupting the prosecutor's cross-examination of defendant, we must consider the entire context in which the challenged questions were asked. Accordingly, we describe the trial proceedings in some detail.
In his opening statement, the prosecutor outlined the evidence that the state planned to use to establish that defendant had driven while intoxicated, including evidence that defendant had been driving westbound in the eastbound lane of State Street in Salem shortly after 2:00 in the morning, that defendant exhibited various signs of intoxication, that defendant made inculpatory statements during the stop and subsequent arrest, and that defendant refused to take a breath test. Defense counsel's opening statement asked the jury to pay close attention to the evidence and informed the jury that defendant planned to testify and would tell the jurors " what his recollection of things was as opposed
to the police officer's recitation of the -- in their testimony."
The trial testimony largely reflected what the lawyers had anticipated in their opening statements. Sergeant [262 Or.App. 545] Burnham testified that, at 2:00 a.m. on January 1, he was on patrol when he saw a car traveling westbound on State Street in the eastbound lanes, at a point where the lanes are separated by " a physical divider" and a sign " tell[s] cars to go to the right of that divider." Burnham stopped defendant for driving the wrong way and asked defendant for his license, registration, and proof of insurance. Burnham also asked defendant if he had consumed any alcohol. Burnham testified that defendant handed over his license and then asked what else Burnham needed; as defendant spoke, Burnham smelled alcohol on his breath. Burnham also testified that defendant was having difficulty responding to more than one question at a time, his movements were very slow, and Burnham suspected that he was under the influence of alcohol.
Because Burnham was the shift supervisor and tried " not to be tied into an investigation," he called other sheriff's deputies to the scene. Deputy Clarke responded and approached defendant, who still was seated in his car. Clarke testified that defendant's eyes were bloodshot and watery, that his speech was slurred to the point of incoherence, and that he acknowledged having drunk alcohol that evening. Clarke asked defendant if he would perform field sobriety tests; at that point, according to Clarke, defendant " asked if [Clarke] could just follow him home," saying that if Clarke " followed him home he would be fine, because then he would be home." Clarke asked again if defendant would perform field sobriety tests, and he agreed, although he asserted that he " had balance issues" and " wasn't able to keep his balance even when he is sober." Clarke testified that, in response, he told defendant that he would " just do the one test, which is the eye test," and defendant " was okay with that."
Clarke testified that defendant had such difficulty balancing once he got out of his car that Clarke feared defendant would fall and " asked him to just lean up against the car so he wouldn't fall over." Even leaning against the car, defendant had " an upper body sway." Clarke administered the horizontal gaze nystagmus test to defendant and testified that he observed four out of six clues of intoxication.
[262 Or.App. 546] Finally, Clarke testified, he asked defendant " where he would rate himself on [an intoxication] scale from one to ten," where a rating of " one" would be " stone sober, nothing to drink, and ten being [the] most drop down drunk he had ever been." Defendant's " first response was, well, I am not crawling down the road." Clarke repeated the question and, he testified, defendant responded, " I am busted." According to Clarke, defendant then " started blaming the bar that he was at, and the bartender, thinking that they should get in trouble for allowing him to drive home the way he was." Defendant then was arrested for driving under the influence, at which point he " became very irate, began yelling, screaming, threatening, and that continued" while Clarke and another deputy walked defendant over to a patrol car. Clarke testified that defendant's yelling continued during the drive to the jail, where defendant gave a " colorful answer" when Clarke asked him if he would take a breath test; Clarke interpreted that response as a refusal.
After Burnham and Clarke testified, defendant took the stand and testified about the night in question. Defendant stated that he had driven to the airport at about midnight to watch fireworks and sat there for a couple of hours. Defendant left the airport at about 2:00 a.m., then went to a bar where, he testified, he drank only half of one beer. Defendant testified that he then left the bar because it was getting late. He acknowledged that he drove the wrong way on State Street, but explained that he had been confused, thinking that the concrete street divider was not a lane divider (which should be on his left), but the sidewalk (which should be on his right). Defendant testified that he immediately realized that he was driving the wrong way and--" just when [he] was getting ready to pull in" to a parking lot--he saw flashing lights, so pulled in and sat " waiting for the officer to arrive."
Defendant testified that the officer who approached him asked if he knew why he had been pulled over, and that is when defendant said, " I am busted," referring to having driven the wrong way, not to being intoxicated. Defense counsel then asked if defendant had heard the officers' testimony earlier in the day (regarding their encounter [262 Or.App. 547] with defendant), and defendant responded that he had. Defendant denied that he had had any trouble retrieving his documents; he testified that he " pulled everything out real quick" and " had everything [the officer] needed right there." Defense counsel then asked, " [W]hen the officer also said that you were talking about the bartender, do you recall that?" Defendant responded that he had " only seen her [the bartender] for half a second" because she gave him " one beer and that was ...