State v. Clarke

                                         74

       Argued and submitted October 5, 2018, affirmed October 16, 2019


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                       BEAU ALLEN CLARKE,
                         Defendant-Appellant.
                      Curry County Circuit Court
                        15CR48691; A163609
                                   

     During defendant’s closing argument in his trial for driving under the influence of intoxicants, ORS 813.010(4), the trial court sustained the state’s objection to defendant’s mischaracterization of the evidence, then offered a clarifying
instruction to the jury. The jury convicted defendant. Defendant appeals, assigning error to (1) the trial court’s sustaining of the state’s objection, (2) the court
commenting to the jury that defendant had mischaracterized the evidence, and
(3) the court’s instruction that the arresting officer’s testimony was admissible
despite the officer’s inability to offer expert opinion on defendant’s state of intoxication. For assignments of error two and three, defendant requests plain error
review under Ailes v. Portland Meadows, Inc., 

, 

(1991). Held: The Court of Appeals affirmed because defendant’s first assignment
of error was not preserved and defendant’s second assignment of error was not
plain. The court declined to exercise discretion under Ailes to review the third
assignment of error because defendant played an active role in bringing about the
alleged error.
    Affirmed.



    Jesse C. Margolis, Judge.
   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.
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  LAGESEN, P. J.
  Affirmed.
76                                             State v. Clarke

        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
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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

    1
      Although the sidebar was not recorded, the parties’ later discussions on the
record reflect that the trial court warned defendant about mischaracterizing the
evidence.
78                                                State v. Clarke

     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.
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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, 

, 

, rev den, 

 (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, 

, 

(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, 

, 

 (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, 

, 

 (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
80                                            State v. Clarke

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, 

, 

 (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, 

, 

 (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 defendant to
object or request that the court supply a clarifying instruction to further explain its comment to the jury if defendant
believed it was misleading. This is not a case in which defendant lacked an opportunity in the trial court to redress the
alleged error that defendant asserts on appeal.
         Defendant requests that we review his second assignment of error for plain error in the event we conclude (as we
have) that he was not excused from preserving it. An error
is “plain” if it is (1) of law, (2) “obvious and not reasonably
in dispute,” and (3) it appears on the record such that there
is no need to “choose among competing inferences.” ORAP
5.45 n 1; Ailes v. Portland Meadows, Inc., 

,

 (1991). He contends that it is “plain” that the
court’s statement about his closing argument constitutes an
improper comment on the evidence under ORCP 59 E.
          We, again, are unable to agree. ORCP 59 E provides,
in part: “The judge shall not instruct with respect to matters
of fact, nor comment thereon.” As we have explained, a trial
court’s comment constitutes an improper comment on the
evidence under ORCP 59 E when it instructs the jury on how
evidence relates to a legal issue. State v. Maciel-Cortes, 231
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, 

 (2009). Here, the court’s comment did not speak to the evidence at all. Instead, it spoke to
defendant’s closing argument and how that argument failed
to track the evidence. Under those circumstances, it is not
plain that the comment was an improper comment on the
evidence or otherwise erroneous.
         Arguing for a contrary result, defendant points to
State v. Mains, 

, 

 (1983). There, the
Supreme Court explained:
   “The judge is not a litigant, nor a witness, and above all,
   not an advocate for either side. Therefore, we believe that
   judicial intervention before a jury should be kept within
   bounds, and the judicial questioning of witnesses or admonition of counsel in the presence of a jury should be a rare
   occurrence.”

. As we have explained, however, “Mains does not
suggest that every question a judge may ask of a witness
or every statement made to counsel risks improperly influencing the jury.” Maney v. Angelozzi, 

,

 (2017). Courts have “broad discretion” to control
their proceedings. State v. Rogers, 

, 

 (2000). Appropriate judicial conduct includes intervening as needed “to conduct a proper, expeditious and just
trial.” Mains, 

. “Even direct admonishment of
counsel may be necessary to control a trial.” Maney, 

 (citing State v. Matson, 

, 

 (1927)).
         Here, when the trial court said that “[t]hat does
mischaracterize the evidence” in response to the state’s
objection, the court was simply sustaining the state’s objection by echoing it and explaining its ruling. Mains does not
make it plain that the court’s manner of expressing that it
was sustaining the state’s objection was erroneous.
         Defendant’s third assignment of error challenges
the trial court’s instruction to the jury: “That doesn’t mean
that he didn’t perhaps observe other signs that would relate
to impairment from controlled substance or alcohol.” As with
defendant’s second assignment of error, defendant acknowledges that his third assignment of error is not preserved but
82                                             State v. Clarke

argues that preservation is excused. We reject that argument based on the same reasoning that we applied to defendant’s second assignment of error. As was the case with that
assignment of error, defendant could have interjected and
requested clarifying instructions if defendant believed that
the court’s statement was erroneous or misleading to the
jury.
          As with the second assignment of error, defendant
has requested that we review the third assignment for plain
error in the event we deem the assignment to be unpreserved. Under Ailes, to be plain an error must be “apparent,”
meaning “the point must be obvious, not reasonably in dispute[.]” 

.
          In defendant’s view, when the trial court stated that
there could be lay opinion evidence that was based on the
officer’s observations of other signs of intoxication, the court
plainly and impermissibly identified evidence that supported a jury finding that defendant was under the influence of intoxicants. That, according to defendant, plainly
constitutes an impermissible comment on the evidence.
          Under State v. Hayward, 

, 

 (1998), a jury instruction impermissibly comments
on the evidence if it “tells the jury how specific evidence
relates to a particular legal issue.” Under State v. Naudain,
a jury instruction impermissibly comments on the evidence
if, in context, the jury would understand the instruction to
explain how specific evidence relates to a particular legal
issue. 

, 

 (2012) (jury instruction on self-defense, given over the defendant’s objection,
was impermissible comment on the evidence because it confirmed the state’s theory that the defendant changed his
story after finding that he was unable to plead self-defense).
         Here, in view of Hayward and Naudain, it is possible that the trial court’s remarks went too far, in that they
may have signaled to the jury—wrongly or rightly—that
the court thought jurors should credit the officer’s testimony
regarding other signs of intoxication. But we are reviewing
for plain error, and the question is not whether the trial court
erred but whether the court’s direction to the jury was so
obviously impermissible that it is beyond reasonable dispute
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that the court erred. Ultimately, though, we do not determine whether the court’s comment was plainly erroneous.
Even if the court’s remarks could be said to rise to the level
of plain error, we decline to exercise our discretion to correct
the error because of defendant’s active role in bringing it
about by proceeding with a line of closing argument that
the court had counseled him against proceeding, and that
defendant acknowledged went too far. State v. Fernaays, 

, 

, rev den, 

 (2014)
(declining to exercise discretion to correct plain error in
large part because of the defendant’s active role in bringing
about the error).
        Affirmed.