Pollock v. Cain ( 2020 )

613
Submitted October 9, affirmed November 18, 2020
DARREN PAUL POLLOCK,
Petitioner-Appellant,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
14111225P; A170196
478 P3d 599
Dale Penn, Senior Judge.
Jedediah Peterson and O’Connor Weber LLC filed the
opening brief for appellant. Darren Pollock filed the supple-
mental brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the briefs for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Affirmed.
614 Pollock v. Cain
PER CURIAM
Petitioner appeals a judgment denying his petition
for post-conviction relief from his convictions for six counts
of first-degree sodomy. We affirm, rejecting all of his assign-
ments of error, save one, without further written discussion.
In his second assignment of error, petitioner chal-
lenges the post-conviction court’s denial of relief on his
claim that trial counsel was inadequate and ineffective, in
violation of petitioner’s rights under Article I, section 11,
of the Oregon Constitution, and the Sixth and Fourteenth
Amendments to the United States Constitution, for not
objecting to certain rebuttal testimony by a detective.
Petitioner had testified earlier that the detective, when
interviewing him, had asked petitioner if he knew what the
penalties were for the crimes that the victim alleged against
him. On rebuttal, the detective responded to that testimony,
stating that petitioner was “not being honest with his testi-
mony in regards to how that issue came up” and explaining
that petitioner, not the detective, was the one who brought
up the issue of the potential penalties during their inter-
view. Petitioner contends that constitutionally adequate
counsel would have objected to the detective’s testimony as
impermissible vouching and, further, that counsel’s failure
to object was prejudicial.
We disagree. Regardless of whether counsel should
have objected, the post-conviction court correctly concluded
that the failure to object did not prejudice petitioner.
Counsel’s failure to object would have prejudiced
petitioner only if it “could have tended to affect the outcome
of the case.” See Stau v. Taylor, 302 Or App 313, 323, 461
P3d 255, rev den, 366 Or 827 (2020) (reciting standard for
prejudice). As we previously have recognized, testimony
from a witness that has the effect of acknowledging that,
if that witness’s testimony is true, other witnesses must be
lying, does not constitute “true vouching.” State v. Abbott,
274 Or App 778, 788-90, 362 P3d 1171 (2015), rev den, 358
Or 794 (2016). That is because such testimony tends merely
to underscore a conflict in testimony and does not tend to
“bolster or undermine” another witness’s testimony. Id. at
788. Further, where such testimony simply emphasizes a
Cite as 307 Or App 613 (2020) 615
conflict in the evidence that would have been clear to the
jury one way or another, it will often be difficult to say that
the admission of the testimony, even if improper, had any
likelihood of affecting the jury’s verdict. See id. at 790-91
(concluding admission of similar evidence was harmless
where it “did no more than emphasize what already must
have been clear to the jurors”).
That is the case here. The detective’s testimony
that petitioner asserts should have been objected to was, in
effect, an acknowledgment that, if the detective was telling
the truth, then defendant was lying. On the record before it,
that is something the jury in all likelihood would have recog-
nized on its own. The admission of the challenged statement
therefore could not have tended to affect the outcome of the
case, even if counsel exercising reasonable professional skill
and judgment may have had a meritorious vouching objec-
tion to lodge against it.
Affirmed.