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State v. Lowell

Summarized by: 

Date Filed: 04-18-2012
Case #: A143776
Ortega, P.J. for the Court and Sercombe, J.; Edmonds, S.J. concurring
Full Text Opinion: http://www.publications.ojd.state.or.us/Publications/A143776.pdf

Appellate Procedure: An investigating detective’s testimony that he believed defendant was lying was an improper comment on defendant's credibility. The trial court's failure to exclude this testimony was plain error and therefore reviewable.

Defendant appealed a conviction of third-degree rape. Defendant argued that the trial court erred in failing to exclude the investigating detective's testimony commenting on defendant's credibility. Defendant did not preserve the error for appeal, but claimed that it constituted plain error. The Court found that the error was plain because the detective's statements were a direct comment on credibility and the Court did not have to select among competing inferences to explain their inclusion. Specifically, it held that defendant's failure to object to the testimony at trial was not a plausible strategic decision. The Court found that the gravity of the error required them to correct it since the trial hinged on the relative credibility of defendant and complainant and the impact of a conviction for a sex crime would be severe and long-lasting. Reversed and remanded.