181
Argued and submitted December 3, 2021; reversed and remanded
January 26; appellant’s petition for reconsideration filed February 2 and
respondent’s petition for reconsideration filed February 3, allowed by opinion
March 30, 2022
See 318 Or App 651,
509 P3d 192 (2022)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOHNATHAN RICHARD BLACK,
Defendant-Appellant.
Washington County Circuit Court
C140510CR; A172621
504 P3d 691
This criminal case is before the Court of Appeals a second time. The trial
court was affirmed the first time, but the Supreme Court reversed, concluding
that the trial court erred when it excluded testimony from a defense expert on the
ground that the testimony would be impermissible vouching testimony. State v.
Black, 364 Or 579,
437 P3d 1121 (2019). The Supreme Court remanded to the trial
court for further proceedings, without specifying whether the court was to hold
a new trial on remand or if, instead, the trial court would have the latitude to
determine whether to exclude the evidence on other grounds and, if so, reinstate
the previous judgment. On remand, the trial court concluded that the evidence
should be excluded under OEC 702 and, alternatively, OEC 403, and reinstated
the judgment. Defendant appealed, again contending that he is entitled to a new
trial. Held: Under State v. Hightower,
368 Or 378, 387,
491 P3d 769 (2021), and
State v. Bales,
317 Or App 54,
504 P3d 10 (2022), the trial court must consider
whether the record could have developed in a materially different way absent
its error. If it determines that it could have, then, given the absence of explicit
alternative direction from the remanding appellate court, defendant is entitled to
a new trial. The trial court did not undertake that required inquiry in this case.
Reversed and remanded.
D. Charles Bailey, Jr., Judge.
Morgen E. Daniels, 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.
Jordan R. Silk, Assistant Attorney General, argued the cause
for respondent. Also on the briefs were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
182 State v. Black
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kistler, Senior Judge.
LAGESEN, C. J.
Reversed and remanded.
Kistler, S. J., concurring.
Cite as 317 Or App 181 (2022) 183
LAGESEN, C. J.
This criminal case is before us a second time. We
affirmed the first time we saw it, but the Supreme Court
reversed, concluding that the trial court erred when it
excluded testimony from a defense expert on the ground
that the testimony would be impermissible vouching testimony. State v. Black, 364 Or 579,
437 P3d 1121 (2019). The
court remanded to the trial court for further proceedings,
without specifying whether it intended for the court to hold
a new trial on remand or if, instead, it intended for the court
to have the latitude to determine whether to exclude the
evidence on other grounds and, if so, reinstate the previous
judgment.
Id. at 603. On remand, the trial court concluded
that the evidence should be excluded under OEC 702 and,
alternatively, OEC 403, and reinstated the judgment, rejecting defendant’s arguments that a new trial was required.
Defendant appealed, again contending that he is entitled to
a new trial.
We reverse and remand. After the trial court made
its decision on remand, but before oral argument in this
appeal, the Supreme Court decided State v. Hightower, 368
Or 378,
491 P3d 769 (2021). Hightower, as the state and
defendant agree, establishes the inquiry that governs a trial
court’s determination of whether a new trial is required by
an appellate court’s determination that reversible error
occurred in the trial process, where, as here, the remanding
court does not issue specific instructions about the scope of
the remand. Id. at 387. That inquiry is as follows:
“When … a trial court does not have the benefit of
our instruction, it must determine for itself whether the
record would have developed differently had the trial court
not erred in the underlying case. … [A] trial court should
first consider the explicit and implicit instructions contained with[in] the appellate court’s opinion. But the trial
court cannot stop there, it is also necessary to evaluate
the impact that the error identified by the appellate court
had on how the record could have developed below. Where
the trial court cannot conclude that the record would have
developed in materially the same way without the error, a
defendant is entitled to a new trial.”
Id. at 391-92.
184 State v. Black
In this instance, because Hightower had not been
decided at the time it considered the case, the trial court
understandably did not conduct the Hightower inquiry.
Instead of examining how the record could have developed
in a materially different way but for the erroneous exclusion
of the defense expert’s testimony on the ground it constituted
impermissible vouching, the trial court understood its task
to be determining if the evidence was otherwise admissible:
“[I]t is clear [the case] was sent back to the court for the
court to determine the next legal step. That next step [is
to decide] whether the evidence would be admissible and
whether any of the charges should be reinstated since the
additional testimony of [the expert] would have no impact
on those charges.”
As we recently recognized in State v. Bales, 317 Or App 54,
504 P3d 10 (2022), that inquiry is not the correct one under
Hightower. Rather, Hightower means that
“after an appellate court remands based on an erroneous
trial-court ruling, a trial court must not limit itself to considering whether it might again rule similarly (but on a
permissible basis), but must also consider what effect its
erroneous ruling had at the time it was made and whether
the evidentiary record or the parties’ arguments might
have developed in a materially different way at that time
had the trial court not erred.”
Bales,
317 Or App at 60-61 (emphasis in original). Having
concluded in Bales that the trial court’s inquiry on remand
in that case did not square with the dictates of Hightower, we
reversed and remanded “so that the trial court may engage
in the analysis that Hightower requires.”
Id. at 61.
We take the same approach here. In this case, the
trial court’s analysis was the same as the analysis that we
concluded was faulty under Hightower in our decision in
Bales. On remand, as in Bales, the trial court must consider
whether the record could have developed in a materially
different way had it not erroneously concluded, pretrial,
that the excluded testimony by the defense expert would
constitute impermissible vouching. As noted in Bales, that
requires an assessment of how the record might have developed in a materially different way starting from the point
Cite as 317 Or App 181 (2022) 185
in time at which the trial court made the erroneous ruling. Where, as here, the error occurred in a pretrial hearing, that necessarily entails an assessment both of how the
error may have materially affected the development of the
record at the hearing and how the error may have materially affected the development of the record at trial. If, in
either instance, the record could have developed in a materially different way but for the trial court’s error, then, as
we understand Hightower, a defendant is entitled to a new
trial, absent explicit direction from the remanding appellate
court spelling out a different approach.
Reversed and remanded.
KISTLER, S. J., concurring.
Following our decision in State v. Bales, 317 Or App
54,
504 P3d 10 (2022), I concur in the majority’s opinion
remanding this case to the trial court. I write separately to
note that, in my view, the reasoning that the majority sets
out from State v. Hightower,
368 Or 378,
491 P3d 769 (2021),
can and should be read in light of the holding in that case.
The problem in Hightower arose because the trial
court initially based its decision denying the defendant’s
midtrial request to represent himself on a legally incorrect
ground. See id. at 381 (summarizing that case’s history).
The Supreme Court reversed the trial court’s judgment and
remanded the case for further proceedings. It explained that,
contrary to the trial court’s ruling, the defendant retained
a qualified right to represent himself after the trial began
and that the trial court had discretion to grant or deny the
defendant’s midtrial request to represent himself. See id. at
382. On remand, the trial court explained that, based on
the defendant’s disruptive behavior at trial, it would have
denied the defendant’s midtrial request to represent himself if it had known it was a discretionary decision. Id. at
383. Having reaffirmed its decision to deny the defendant’s
request, albeit on a different ground, the trial court reinstated the judgment.
On review, the Supreme Court reversed the trial
court’s judgment and remanded for a new trial. The
court noted that, when the trial court initially denied the
186 State v. Black
defendant’s request to represent himself, it did not state the
reason that it later articulated on remand for denying the
request—the defendant’s disruptive behavior throughout
trial. Id. at 392. Had it done so, the court explained, the
record could have developed differently—specifically, the
defendant would have had an “opportunity to explain and
respond to the trial court’s concerns about his disruptive
behavior in the context of his requests for self-representation.”
Id. at 393. And the defendant’s responses could have persuaded the trial court to exercise its discretion to permit the
defendant to represent himself. Because the record could
have developed differently, the court concluded that a new
trial was necessary. Id.
As I read Hightower, the reason that a new trial
was required was not simply that the record at the hearing could have developed differently if the trial court had
initially and correctly explained why it was denying the
defendant’s request to represent himself; rather, there was
another problem that, in combination, required a new trial.
Once the trial was over, the trial court could not recreate
on remand the opportunity for a real-time interchange with
the defendant that could have led the trial court to exercise
its discretion differently. That was the record problem that
concerned the court.1
To be sure, some of the reasoning in Hightower, if
viewed in isolation, could suggest that a new trial will be
required whenever the record could have developed differently if the trial court had initially applied the correct legal
ground. It is difficult to see, however, what interest such a
rule would serve when the trial court can correctly reach
the same ruling on remand under the appropriate legal
standard.2 The mere fact that the record at the hearing on
1
The court explained in Hightower:
“Here, it was necessary for the trial court to provide defendant with an
opportunity to explain and respond to the trial court’s concerns about his
disruptive behavior in the context of his requests for self-representation.
Because the trial court did not do that in the first instance, and because the
record could have developed differently if it had, a new trial was required.”
368 Or at 393.
2
On remand, a trial court will presumably have to rule on the issue it initially decided incorrectly regardless of whether it holds a new trial or only a
stand-alone hearing.
Cite as 317 Or App 181 (2022) 187
remand differs under the correct legal standard does not
appear to justify putting the parties and the court system
to the expense of a new trial. And any number of judicial
rules are designed to avoid giving parties a second bite at
the apple as long as the parties had a full and fair opportunity to develop the trial record in the first instance.
Accordingly, I would read the court’s reasoning in
Hightower in light of its holding. Specifically, I would interpret Hightower as holding that a new trial is required when
a stand-alone hearing on remand will not fairly serve to
adjudicate the issue that the trial court initially decided
incorrectly.3 With that observation, I join the majority’s
opinion.
3
It is perhaps worth noting that, in this case, the remand gives the parties an opportunity to consider whether some but perhaps not all of the expert’s
answers were admissible under OEC 702 and OEC 403 instead of treating the
admission of the expert’s testimony as an all-or-nothing proposition under those
rules.
