Argued and Submitted July 29, 2014
Multnomah County Circuit Court, 070833798, Kenneth R. Walker, Judge.
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.
[266 Or.App. 739] TOOKEY, J.
Defendant appeals a judgment of conviction for murder, ORS 163.115(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.
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 [266 Or.App. 740] 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 ...