Submitted November 26, 2013
Jackson County Circuit Court 063530FE. Benjamin M. Bloom, Judge.
Peter Gartlan, Chief Defender, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge.
[264 Or.App. 59] ORTEGA, P. J.
Defendant challenges his convictions for murder and attempted murder, in violation of ORS 163.115 and ORS 161.405(2)(a). He assigns error to the trial court's failure to exclude testimony by the lead detective that defendant asserts was a comment on the credibility of another witness. Defendant did not object to the testimony when it was given, but he contends on appeal that he preserved the error with a pretrial motion that sought to prevent the state's witnesses from commenting on the credibility of other witnesses. He argues, alternatively, that if the error was not preserved, we should determine that the trial court's failure to strike the testimony sua sponte is plain error and should exercise our discretion to correct it. We conclude that the error was not preserved and, because it is plausible that defendant had a strategic purpose for not objecting, the trial court's failure to strike the testimony is not plain error. Defendant also assigns error to the trial court's ruling that disallowed the introduction of a treatise to impeach a detective's testimony. Defendant, however, did not preserve that error because he did not make an offer of proof. Finally, we decline to exercise our discretion to correct as plain error the trial court's failure to cure sua sponte the prosecutor's misstatement of the law during closing argument that defendant was no longer presumed innocent. Accordingly, we affirm.
Defendant's original convictions were reversed and remanded for a new trial by the Supreme Court. State v. Salas-Juarez, 349 Ore. 419, 245 P.3d 113 (2010). Defendant was retried and again convicted based on events that occurred early one morning, soon after the bars were closed in downtown Medford. While defendant was walking alone, Russell, whom defendant had never met, walked up to defendant. That chance encounter sparked events that resulted in the stabbing of Lunsford, who died in the hospital a couple of hours later, and the attempted stabbing of another victim.
The events were set in motion when, after leaving a bar, Russell ran into a group of eight to 10 people while walking home and some members of that group shouted out to him, " white power" and " white pride." Russell denied [264 Or.App. 60] being a racist, and someone in the group shouted out that Russell was a " nigger lover." Russell continued walking past the group and thereafter encountered defendant, a Hispanic man, who had also just left one of the downtown bars. Russell told defendant that there was a group of people nearby who were racists. Together, defendant and Russell went to confront the group and, upon meeting them, defendant took off his shirt and belt. Defendant started swinging the belt around and yelling obscenities.
Three witnesses--Lunsford's brother, Barnett, and Crowley, who was the victim of the attempted stabbing--testified that both Russell and defendant had knives and took them out during the fight, and that defendant stabbed Lunsford. Barnett stated that Russell was not near Lunsford during the stabbing. Crowley also testified that defendant attacked him with a knife and that he had to lunge away to avoid being stabbed. Russell, for his part, testified that he pulled his knife out to scare off some members of the group that came at him, and, that he had been hit on the back of the head early on in the fight, after which he dropped to the ground and was kicked in the side.
Defendant fled. A few minutes later, he waved down approaching police officers, who arrested and brought defendant to the police station. The police did not find Lunsford's blood on defendant's hands or clothes. Defendant did not have a knife and the police
did not find a knife in the area where the fight occurred. Later in the investigation, police discovered that defendant had purchased a distinctive knife about two weeks before the stabbing and had carried it in a belted sheath every day, including the day before the early morning stabbing. After the police brought defendant to the police station, defendant talked to them but did not admit to stabbing Lunsford, though he did admit that he had gone with Russell to confront the victims and that he had taken off his belt and used it in the fight.
Shortly after the fight, Russell also ran and was initially not identified by anyone as a participant, as no one knew him. A few days later, the police determined that Russell was the person they were looking for and attempted to interview him. He declined to speak with them and [264 Or.App. 61] invoked his right to counsel. Later, represented by counsel, Russell came forward to give a statement to police about his participation in the fight and what he had witnessed. He disclosed that he had had a knife, which he had brandished during the fight, that someone had punched him in the head and knocked him down, that he had heard someone yell, " He's been stabbed," and that he had run away. Police officers executed a search warrant at Russell's home and found a t-shirt and shorts that looked like clothes that witnesses had described Russell wearing on the morning of the fight. They also found a black-handled folding knife. Lunsford's blood was not on those items.
At trial, defendant's counsel offered an alternative to the stated version of what happened. He insisted that the eyewitnesses who identified defendant as the stabber mixed up Russell with defendant and that their testimony was not consistent with the objective evidence. According to him, much of Russell's story was true, except that Russell stabbed Lunsford before getting knocked out of the fight when he was hit on the back of the head.
We first address defendant's assertion that the trial court erred when it failed to exclude testimony by the lead detective, Young, commenting on the credibility of another witness, Russell. On direct examination by the prosecutor, Young stated his thoughts about the statement that Russell gave to investigators:
" [PROSECUTOR]: From an investigative standpoint, what was the next thing that occurred during the proffer, that you felt was of interest to you, as a detective, a case agent?
" [YOUNG]: That the information I had [at] that point, from the witness statements, to what I knew of the scene, again, this is on August 22nd, I did not find Mr. Russell's statement to be evasive or--and it appeared to fit with the circumstances, it appeared to be truthful, to me. "
(Emphasis added.) Defendant contends that, under State v. Middleton, 294 Ore. 427, 438, 657 P.2d 1215 (1983), and State v. Milbradt, 305 Ore. 621, 629-30, 756 P.2d 620 (1988), that statement on Russell's credibility was impermissible vouching.
[264 Or.App. 62] As a preliminary matter, we address whether defendant's claim of error was preserved. To support his contention that he preserved the assigned error, defendant points to his pretrial motion that sought to " preclud[e] all State witnesses from offering an opinion about the credibility of the defendant or any other witness. State v. Lupoli, 348 Ore. 346, [234 P.3d 117] (2010); State v Keller, 315 Ore. 273, 284-85, [844 P.2d 195] (1993)." Defendant did not provide any further explanation in support of the motion, but the state offered possible context by noting that, in defendant's first trial, detectives had been cross-examined with accusations that they " had jumped to conclusions" and that their investigation was incomplete, and their credibility had been attacked. The court granted that motion.
However, that pretrial motion and order did not serve to preserve defendant's assignment of error. To preserve an argument for appeal, " a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted." State v. Wyatt, 331 Ore. 335, 343, 15 P.3d 22 (2000). Defendant does not explain how the pretrial motion--a generalized
statement of the law (as we explain below) that applied to the trial regardless of whether the motion was granted--satisfied the requirements for preservation, particularly because, in this case, the trial was lengthy--about two weeks--and involved dozens of witnesses. Without an objection by defendant to specific testimony and an explanation for that objection, any error was not brought to the trial ...