State v. Clarke

300 Or.App. 74

451 P.3d 1022

STATE of Oregon, Plaintiff-Respondent,

v.Beau Allen CLARKE, Defendant-Appellant.

A163609

Court of Appeals of Oregon.

Argued and submitted October 5, 2018.

October 16, 2019

Brett J. Allin, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

LAGESEN, P. J.

A jury convicted defendant of driving under the influence of intoxicants, ORS 813.010(4). On appeal, defendant contends that the trial court erred in three respects: (1) by sustaining the state’s objection to defendant’s closing argument about the state’s inability to supply a drug recognition expert (DRE) opinion; (2) by commenting to the jury that defendant’s argument mischaracterized the evidence; and (3) by instructing the jury that the lack of a DRE opinion did not mean that the arresting officer "didn’t perhaps observe other signs that would relate to impairment from controlled substance or alcohol" and that could form the basis for his lay opinion that defendant was intoxicated. Defendant, however, did not preserve his assignments of error and, for reasons to be explained, none warrants correction on plain-error review. Accordingly, we affirm.

The relevant facts are procedural and not disputed. The state charged defendant with driving under the influence of intoxicants, ORS 813.010(4). At trial, the arresting officer, who was a drug recognition expert, was not permitted to offer an expert opinion on whether defendant was under the influence of intoxicants. That was because the officer had not performed a DRE evaluation of defendant at the time of his arrest. The trial court did allow the arresting officer to offer a lay opinion that defendant was under the influence of marijuana.

On cross-examination, defendant sought to highlight the difference between a DRE expert opinion and a lay opinion and to emphasize that the arresting officer, although a DRE expert, was unable to opine as an expert that defendant was intoxicated. Explaining to the trial court his theory, defendant said: "[T]he State’s trying to say a lay person can have this opinion about marijuana, but an expert cannot, which I think is all I want in, is that an expert needs information to give an opinion, a lay person doesn’t. It’s never made sense to me, but that’s fine." (Emphasis added.) The state was concerned that this line of inquiry would attack the validity of the arresting officer’s lay opinion in a manner that would confuse the jury. However, the court sided with defendant and allowed him to highlight that the arresting officer could not offer an expert opinion because he had not performed a DRE evaluation.

In closing argument, defendant urged the jury to give the arresting officer’s testimony less weight because the officer was unable to provide an expert opinion as to whether defendant was intoxicated. He argued: "So we have * * * the deputy over here, saying as a deputy, as an officer, as to a limited amount of training, I can say he’s under the influence of marijuana, but as an expert with extra training, more classes, more experience, I cannot render that opinion." Shortly after that argument, the trial court requested a sidebar, during which the court cautioned defendant about mischaracterizing the evidence.¹ Defendant then resumed his closing argument but persisted in pursuing the argument that the court had cautioned him against making:

"THE COURT: Please proceed, Counsel.

"[DEFENDANT]: Thank you, Your Honor. So basically what you have here is you have a deputy as a deputy saying that he’s under the influence of marijuana, and you’re having a DRE say I don’t have enough information to even tell you that, so—

"[THE STATE]: Your Honor, I object. I believe it mischaracterizes the evidence.

"THE COURT: That would be correct. That does mischaracterize the evidence. That’s the conversation we just had in chambers —

"[DEFENDANT]: Okay.

"THE COURT: —Counsel. The problem, ladies and gentlemen, is that the officer testified that he did not perform what’s called a DRE evaluation. It’s a certain type of test. I believe the testimony from the defense position was that that was not refused. It just wasn’t done. From the State was that it was refused.

"But, nonetheless, the officer’s testimony was that, as I recall, you have to rely on your memory, was that he just didn’t do that specific type of test. That doesn’t mean that he didn’t perhaps observe other signs that would relate to impairment from controlled substance or alcohol ."

(Emphases added.)

Following that exchange, the parties concluded their closing arguments and the jury began deliberations. While the jury deliberated, the court addressed further its ruling on the state’s objection to defendant’s closing argument:

"THE COURT: Additionally, we had a sidebar during closing argument in which [defendant] and I discussed—I think I did most of the discussing—but we discussed a problem that I saw with [defendant’s] argument that the officer’s training and experience was, as I understood his argument, was not valid as to any evaluation of use of controlled substance because the DRE evaluation was not done, and in my view that was a mischaracterization of the evidence.

"We came back, and [defendant] continued his argument in the same vein as far as I could tell.

"[DEFENDANT]: I went past (inaudible). Sorry, Your Honor.

"THE COURT: That’s right. Is there anything else at this time ?

"[DEFENDANT]: No ."

(Emphases added.)

The jury returned a verdict of guilty. On appeal, as noted, defendant raises three assignments of error: (1) the trial court erred in sustaining the state’s objection to defendant’s closing argument; (2) the court erred by commenting that "[t]hat does mischaracterize the evidence" after sustaining the state’s objection; and (3) the court erred by instructing the jury that "[t]hat doesn’t mean that he didn’t perhaps observe other signs that would relate to impairment from controlled substance or alcohol." The state responds that none of defendant’s assignments of error is preserved and none involves plain error. We address each assignment of error in turn.

Defendant first assigns error to the trial court’s ruling sustaining the state’s objection to his closing argument.

He contends that it precluded him from making a closing argument. Defendant acknowledges that he did not dispute or otherwise oppose the state’s objection, but asserts that the issue is preserved because the state objected, stated its grounds for objection, and the court sustained it. See State v. Wirfs , 250 Or. App. 269, 273-74, 281 P.3d 616, rev. den. , 352 Or. 378, 290 P.3d 814 (2012) (concluding that the defendant’s assignment of error was preserved where the state objected on specific grounds, because "the trial court had a chance to consider the issue" and the state would not be "taken by surprise").

Although defendant is correct that we have sometimes determined an issue to be preserved in such circumstances, here we do not. That is because defendant affirmatively indicated to the trial court that his argument went beyond permissible bounds in the way it characterized the evidence. Defendant had a sidebar with the court where the court advised defendant that he was close to mischaracterizing the evidence. Then, when the court revisited the issue, defendant admitted that he went past the bounds of permissible argument and apologized to the court for doing so. In view of defendant’s express acknowledgment to the court that his argument did mischaracterize the evidence, his contention on appeal—that the trial court erred in sustaining the state’s mischaracterization objection—is not preserved. See State v. Craigen , 296 Or. App. 772, 777, 439 P.3d 1048 (2019) (the defendant either failed to preserve or invited any error with respect to exclusion of evidence as to defense of extreme emotional disturbance (EED) where the defendant repeatedly told the court that the evidence was relevant to the defense of guilty except for insanity, and not to the EED defense); State v. Cowdrey , 290 Or. App. 415, 420-21, 416 P.3d 314 (2018) ("Given defendant’s repeated statements disavowing the notion that he was presenting the argument to the trial court that he now advances before us, we conclude that the issue was not properly preserved in the trial court."). As defendant has not requested review for plain error, we do not further consider his first assignment of error. State v. Ardizzone , 270 Or. App. 666, 673, 349 P.3d 597 (2015) ("[W]e ordinarily will not proceed to the question of plain error unless an appellant has explicitly asked us to do so because ‘it is incumbent upon the appellant to explain to us why an error satisfies the requisites of plain error and, further, why we should exercise our discretion to correct that error.’ " (Quoting State v. Tilden , 252 Or. App. 581, 589, 288 P.3d 567 (2012).)).

In his second assignment of error, defendant challenges the court’s comment agreeing with the state’s mischaracterization objection to defendant’s closing argument: "That does mischaracterize the evidence." Defendant acknowledges that the error is unpreserved but contends that preservation is excused because, in his view, he had no reasonable opportunity to object to the court’s comments. See State v. Barajas , 247 Or. App. 247, 252-53, 268 P.3d 732 (2011) (where the trial court "waived" parties’ closing arguments without warning, issue of whether that "waiver" was correct was preserved despite no clear objection on the record).

We disagree. When the trial court commented on defendant’s closing argument, defendant remained silent, although it would have been easy enough for defen...