v. Bobian , 2019 COA 183 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
December 19, 2019
2019COA183
No. 16CA0746, People v. Bobian — Evidence — Opinions and
Expert Testimony — Testimony by Experts
Where a trial court allowed a police detective witness to offer
undisclosed expert testimony about blood residue and tool
markings evidence, a division of the court of appeals holds that the
error was harmless under the circumstances. The division further
concludes that where the detective served as the prosecution’s
advisory witness and testified about the consistency of the
eyewitnesses’ trial testimony with their statements just after the
charged incident, any error in admitting the testimony did not
amount to prejudicial plain error that would warrant reversal. The
division also rejects claims of prosecutorial misconduct.
The special concurrence discusses the propriety of allowing a
police detective to testify about the consistency between
eyewitnesses’ statements at a crime scene and their testimony at
trial.
COLORADO COURT OF APPEALS 2019COA183
Court of Appeals No. 16CA0746
Adams County District Court No. 15CR1426
Honorable Katherine R. Delgado, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael Edward Bobian,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE TERRY
Welling, J., concurs
Berger, J., specially concurs
Announced December 19, 2019
Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Britta Kruse, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Michael Edward Bobian, appeals the judgment of
conviction entered on jury verdicts finding him guilty of attempted
second degree murder and first degree assault. We affirm.
¶2 We consider and reject Bobian’s arguments that his conviction
should be overturned because the trial court erred by
• admitting improper expert testimony about blood residue
and tool markings; and
• permitting prosecutorial misconduct.
¶3 The special concurrence discusses the propriety of allowing a
police detective to testify about the consistency between
eyewitnesses’ statements at a crime scene and their testimony at
trial.
I. Background
¶4 The charges stemmed from an altercation during a party at
Stephanie Torres’s apartment. Lindsey Collins, who had been
staying with Torres for a few days, called a friend for a ride. The
friend in turn called Bobian and asked him to pick up Collins from
Torres’s apartment.
¶5 Bobian and three of his friends entered Torres’s apartment
unannounced. Annoyed by the presence of strangers in her home,
1
Torres became belligerent and told them to leave. A fight then
broke out between Torres and Bobian’s friends. Torres screamed
for the victim, T.H., who was outside. The events that took place
next were disputed at trial.
¶6 The victim testified that he ran through the front door to
Torres’s aid, and Bobian preemptively struck him on the head with
a hatchet. After a struggle, the victim was able to get control of the
hatchet from Bobian, and Bobian and his friends then fled the
apartment.
¶7 Collins took the stand for the defense and gave a different
account. She testified that when the victim ran into the apartment
and found Torres being attacked by Bobian’s friends, the victim
struck Bobian from behind and a second fight broke out. Collins
testified that the victim continued to attack Bobian, who was
squatting on the ground. At some point, Collins realized that
Bobian and the victim were fighting over a hatchet, and that the
victim appeared injured.
¶8 The jury acquitted Bobian of attempted first degree murder
but found him guilty of attempted second degree murder and first
degree assault.
2
II. Expert Testimony
¶9 Bobian contends that the trial court erred by admitting the
testimony of the State’s lead detective about blood patterns and tool
markings without qualifying him as an expert. We conclude that
any error was harmless.
A. Standard of Review and Applicable Law
¶ 10 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). A trial
court abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, or unfair, or when it misapplies the law. Rains v.
Barber, 2018 CO 61, ¶ 8. We will reverse only if “there is a
reasonable probability that [an error] contributed to [the]
defendant’s conviction by substantially influencing the verdict or
impairing the fairness of the trial.” People v. Casias, 2012 COA
117, ¶ 61.
¶ 11 In determining whether testimony is lay or expert testimony,
the court must look to the basis for the opinion. Venalonzo v.
People, 2017 CO 9, ¶ 23. If the witness provides testimony that
could be expected to be based on an ordinary person’s experiences
or knowledge, then the witness is offering lay testimony. Id. On the
3
other hand, if the witness provides testimony that could not be
offered without specialized experiences, knowledge, or training, then
the witness is offering expert testimony. Id.
¶ 12 Police officers may testify as lay witnesses based on their
perceptions, observations, and experiences. People v. Veren, 140
P.3d 131, 137 (Colo. App. 2005). But where an officer’s testimony
is based on specialized training or education, the officer must be
properly qualified as an expert. Id.
¶ 13 In People v. Ramos, 2017 CO 6, ¶ 9, our supreme court held
that an ordinary citizen would not be expected to have the
experience, skills, or knowledge to differentiate reliably between
cast-off blood and blood transfer.
B. Additional Facts
¶ 14 Witnesses for both the State and the defense testified that they
saw the victim throw the hatchet at the front door just as it closed
after Bobian exited. The victim, however, could not recall throwing
the hatchet.
¶ 15 Lead Detective Frederick Longobricco was the prosecution’s
advisory witness and was present throughout trial. He testified
regarding the blood and tool markings he saw on the front door, as
4
well as the damage to the wall that was allegedly caused during the
altercation. He had the following exchange with the prosecutor
about blood patterns:
Q: [T]here’s actually kind of a description for
what blood looks like when it’s hit against the
door like that. What’s that kind of blood
called?
A: I have received training in blood pattern
analysis and depending on how blood strikes
an object it will tell you —
¶ 16 At that point, defense counsel objected to the testimony as
expert testimony. After the prosecutor responded that the detective
was just describing what he had done as a “regular police officer,”
the court overruled the objection and Detective Longobricco testified
as follows:
A: So when blood strikes a surface, how that
blood reacts to the surface will tell you most
likely how that . . . blood traveled. So in here
when you see a close[-]up of it, the blood
showed patterns of coming down, striking
down.
Q: Okay. And is that called cast[-]off?
A: Yes.
Q: Also there’s kind of a hole back there by —
behind the kitchen or behind the table there
5
[and] you also took note of that as well, didn’t
you?
A: Correct. There’s an indentation or a hole in
the wall, in the drywall. And there appears to
be blood next to it. The blood next to it
appears to be a smear of some sort. That
means that blood was on an object, came in
contact with another object. It didn’t actually
travel through the air. We didn’t know why
that hole in the wall was there. That was one
of the discussions I had with [another
officer]. . . .
....
Q: [L]ooking at [exhibit] 27, [i]s this again kind
of the pattern that you’re talking about here
with the door?
A: Correct. This is the slit that we see. We
believed that was connected to the incident.
And then the cast[-]off blood pattern as it
travels down, you can see a thinner tail at the
top — or a thinner [tail] on one side of it and a
deeper or more large base on the end. . . .
....
Q: And you’re noting there both this kind of
pattern of dashes straight down in the line in
the left that’s seemed to being marked nick
marks [sic] almost from something hitting it; is
that right?
A: Correct. They were consistent with
something striking . . . the door.
¶ 17 Detective Longobricco described the marks on the door:
6
A: This is the slit mark or the indentation at
the top. This became my concern because I
wanted to know if that was consistent with the
stories that we were hearing in the interviews.
Q: And that’s the story that [Torres] said of
[the victim] hitting the hatchet against the
door?
A: Correct. I wanted to look at this and
document it to see if it was consistent with a
hatchet strike.
Q: Did you end up doing that?
A: Based on just the — my response as a
police officer, I believed that it was consistent
due to the width, the depth and the height was
consistent [sic]. If somebody hit it with a
sledge hammer . . . .
¶ 18 At this point, defense counsel moved to strike this testimony
as expert testimony, but the court overruled the objection. The
detective then testified, “So if somebody hit it with a hammer or
sledge hammer, it would leave a different type of mark, not a thin
mark.”
C. Discussion
¶ 19 Bobian contends that Detective Longobricco’s testimony about
blood patterns and tool markings amounted to improper expert
7
testimony. Though we agree that it was expert testimony and was
improperly admitted, we conclude that the error was harmless.
¶ 20 The detective’s reference to the blood evidence as “cast-off”
required specialized knowledge that an ordinary person would not
have, and he purported to rely on his training in blood pattern
analysis. See Ramos, ¶ 9 (stating that an ordinary person without
the testifying officer’s nineteen years of experience would not have
been able to provide testimony distinguishing cast-off blood from
blood transfer). Detective Longobricco’s testimony on this issue was
therefore expert testimony, and the court erred by admitting his
opinions about how the blood got onto the surface of the door,
whether it was “cast-off” blood or a “smear” of blood, and how the
blood traveled when it hit the surface. See id. at ¶ 10 (a police
detective’s testimony using technical terms — “spatter” versus
“cast-off” — in describing blood was improper expert testimony
requiring specialized knowledge “to ‘assist the trier of fact to
understand the evidence or determine a fact in issue.’” (quoting
CRE 702)).
¶ 21 Bobian contends that this error improperly conferred the “aura
of expertise” on Detective Longobricco’s testimony without requiring
8
the prosecution to qualify him as an expert witness. According to
Bobian, this testimony bolstered the prosecution witnesses’ account
of the incident that Bobian had unexpectedly attacked the victim
with a hatchet the moment the victim walked through the door. He
also asserts that the blood on the door could have been used to
refute the defense theory that the victim was hit in the kitchen,
where — according to Collins — the altercation occurred.
¶ 22 The error in admitting this testimony was harmless. There
was no dispute that Bobian struck the victim with the hatchet; the
only dispute was whether he did so in self-defense. The pattern of
blood on the door did nothing to answer that question. Even
Bobian’s witness (Collins) testified that when the fight between the
victim and Bobian moved closer to the front door, “that’s when we
see the blood.” So, the presence of blood on the door did not assist
the jury in determining which party’s version of events — the
State’s or Bobian’s — was true.
¶ 23 This circumstance distinguishes the case from Ramos
precisely because the blood patterns in Ramos were critical to how
the defendant’s blood in that case got on the clothing of the victim.
The Ramos victim testified that the defendant’s blood got on her
9
clothing when he punched her, and this contrasted with the
defendant’s testimony that the blood came from his injured,
bleeding hand when he waved his hand around. Id. at ¶ 2.
¶ 24 In Ramos, a detective testified that some of the defendant’s
blood got onto the victim’s clothing from “transfer” (i.e., physical
contact), and not as “cast-off” blood (i.e., from the defendant waving
his hand around). Id. at ¶ 3. The detective there “opined that the
blood on the victim’s hat was the result of physical contact and that
the bloodied area ‘could be’ roughly the area of a fist.” Id. at ¶ 9.
The supreme court reversed the conviction because “an ordinary
citizen . . . would not have been able to provide the same
conclusions.” Id. Thus, the distinction between “cast-off” and
“spatter” blood would have made a difference in how the jury
evaluated whether the defendant in Ramos struck the victim, as the
prosecution asserted.
¶ 25 Not so here, because it is undisputed that Bobian struck the
victim with the hatchet. We conclude that the admission of the
blood pattern testimony was therefore harmless.
¶ 26 Detective Longobricco’s testimony that he looked at the marks
on the apartment door to see if they matched the witnesses’
10
statements was also harmless because it did not aid in proving or
disproving self-defense. Instead, the testimony went only to
whether the victim at some point hit the apartment door with the
hatchet — a matter of no consequence to the self-defense issue.
¶ 27 Moreover, the prosecutor did not refer to Detective
Longobricco’s blood or tool markings testimony in closing
argument. Based on the circumstances of this case, we conclude
that any error in admitting this testimony could not have affected
the outcome of the trial. See Krutsinger v. People, 219 P.3d 1054,
1063 (Colo. 2009) (harmless error found where trial court’s error
“did not substantially influence the verdict or affect the fairness of
the trial proceedings”).
III. Prosecutorial Misconduct
¶ 28 Bobian next contends that multiple incidents of prosecutorial
misconduct warrant reversal. We disagree.
A. Standard of Review and Applicable Law
¶ 29 In evaluating a claim of prosecutorial misconduct, we first
determine whether the conduct in question was improper based on
the totality of the circumstances and, if so, we then determine
11
whether such actions warrant reversal under the proper standard of
review. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).
¶ 30 Where, as here, a defendant does not object to the challenged
conduct at trial, we review a prosecutorial misconduct claim for
plain error. People v. Rhea, 2014 COA 60, ¶ 43. Plain error is
obvious and substantial error that so undermined the fundamental
fairness of the trial itself as to cast serious doubt on the reliability
of the judgment of conviction. Hagos v. People, 2012 CO 63, ¶ 14.
To rise to the level of plain error, prosecutorial misconduct must be
flagrant or glaringly or tremendously improper. People v. Weinreich,
98 P.3d 920, 924 (Colo. App. 2004), aff’d, 119 P.3d 1073 (Colo.
2005).
¶ 31 Prosecutors have a heightened ethical responsibility as
compared with other lawyers. Domingo-Gomez v. People, 125 P.3d
1043, 1049 (Colo. 2005). “[I]t is improper for a prosecutor[,]
knowingly and for the purpose of bringing inadmissible matter to
the jury’s attention[,] to ask a question which he knows will elicit an
inadmissible answer.” People v. Oliver, 745 P.2d 222, 228 (Colo.
1987).
12
¶ 32 Although a prosecutor, during closing argument, “has wide
latitude and may refer to the strength and significance of the
evidence, conflicting evidence, and reasonable inferences that may
be drawn from the evidence,” People v. Walters, 148 P.3d 331, 334
(Colo. App. 2006), the prosecutor may not misstate the law, use
arguments calculated to inflame the passions and prejudices of the
jury, People v. Samson, 2012 COA 167, ¶ 32, or express a personal
opinion on the truth or falsity of witness testimony, Wilson v.
People, 743 P.2d 415, 419 (Colo. 1987).
B. Discussion
¶ 33 Bobian contends that the prosecutor intentionally elicited
inadmissible testimony while questioning Detective Longobricco and
that certain arguments and statements made during closing
argument amounted to prosecutorial misconduct.
¶ 34 After reviewing the record, we see no error that would warrant
reversal as to the following instances raised by Bobian:
• The prosecutor eliciting expert testimony from Detective
Longobricco. We have concluded that the error in admitting
this testimony was harmless, and we see no prejudicial error
13
arising from the prosecutor’s questioning that elicited the
testimony. See Hagos, ¶ 14.
• The prosecutor asking Detective Longobricco to opine on
whether the prosecution witnesses’ testimony was consistent
with the statements they gave on the night of the incident, and
whether the witnesses’ statements were consistent with each
other. Even assuming that the prosecutor’s question in this
regard was improper, we conclude that it did not rise to the
level of plain error. First, the question was not “flagrant or
glaringly or tremendously improper,” and thus did not
constitute plain error. People v. McMinn, 2013 COA 94, ¶ 58.
Second, the detective did not testify about whether the
witnesses had testified truthfully. See Venalonzo, ¶ 32
(witnesses are prohibited from testifying that another witness
was telling the truth on a particular occasion). And third,
Detective Longobricco’s equivocal response mitigated any
prejudice. When asked whether the witnesses’ testimony was
consistent with their statements on the night of the incident,
the detective answered, “For the most part, yeah.” We
conclude that this answer did not so undermine the
14
fundamental fairness of the trial as to cast serious doubt on
the reliability of the judgment of conviction. See Hagos, ¶ 14.
• The prosecutor advising the jury during closing argument that
it should consider the greater offenses before considering the
lesser included offenses. True, Colorado is a “soft transition”
jurisdiction, in which the jury need not unanimously acquit
the defendant of the greater offense before considering the
lesser included offenses. People v. LePage, 397 P.3d 1074,
1077 (Colo. App. 2011), aff’d on other grounds, 2014 CO 3.
But the prosecutor did not suggest that the jury had to acquit
Bobian of the greater offenses before considering lesser
offenses, and therefore did not misstate the law. See People v.
Padilla, 638 P.2d 15, 17-18 (Colo. 1981) (finding no plain error
in giving stock jury instruction on consideration of lesser
included offense if jury did not find the defendant guilty of the
charged offense, and stating, “it is not clear from the language
of the instruction that the jurors would feel compelled to reach
a unanimous decision on the greater offense before
considering the lesser included offenses”).
15
• The prosecutor stating during closing argument that “the
actions of bringing a weapon into a fist fight are inherently not
reasonable no matter what.” When considered in context, this
isolated comment does not portray a categorical exception to
the degree of force that may be used in self-defense. The
comment was inartful but permissible commentary on the
evidence in this case and the State’s assertion of the
unreasonableness of Bobian’s actions. See People v. Avila,
944 P.2d 673, 676 (Colo. App. 1997) (“A reviewing court
should examine alleged improper argument in the context of
the prosecution’s closing argument as a whole.”); see also
People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010) (a
prosecutor in closing argument may ordinarily use rhetorical
devices and a reviewing court considers the frequency of
alleged misconduct).
• The prosecutor stating during closing argument, “How do we
know [Bobian is] the one who is not acting reasonably?
Because he’s not sitting over there right now with a giant scalp
laceration to the top of his head.” This comment related to the
16
proportionality of Bobian’s physical response to what he
claimed was a threat, and it was not improper.
• The prosecutor questioning Collins’s credibility during closing
argument by referencing “the one true thing [Collins] said
when she was sitting [on] that stand . . . ,” and “[h]er story
that she came up with yesterday, . . . while [she was] sitting
up there on the stand, that was kind of all brand new and we
didn’t hear that at all through any of the officers, or anybody
else . . . .” We disagree that these statements amounted to an
expression of the prosecutor’s personal opinion of witness
credibility. See Domingo-Gomez, 125 P.3d at 1051 (“[C]ounsel
may properly argue from reasonable inferences anchored in
the facts in evidence about the truthfulness of a witness’
testimony.”); see also United States v. Spain, 536 F.2d 170,
174 (7th Cir. 1976) (where conflicts in the evidence exist and
cannot be the result of honest mistake, each counsel is
“entitled to argue that witnesses called by him had spoken the
truth and those called by the other side had testified falsely”).
• The prosecutor commenting on the credibility of the State’s
version of events by stating, “I apologize for the fact that I put
17
up witness after witness who told you the same exact version
of basically these events, right?” and “[t]he officers tell you
basically the same version of events, as well.” These
statements were not expressions of the prosecutor’s personal
opinion of the credibility of the witnesses but were proper
statements on the consistency of the evidence. See Domingo-
Gomez, 125 P.3d at 1051-55.
• The prosecutor referring to Collins as “the homeless hero” and
a “squatter with a heart of gold” during his closing argument.
While these comments were unnecessary characterizations of
the defense witness, they would not have led the jury to decide
on an improper basis and do not rise to the level of
prosecutorial misconduct. Cf. People v. McBride, 228 P.3d 216
(Colo. App. 2009) (reviewing courts accord prosecutors the
benefit of the doubt where remarks are simply inartful).
IV. Cumulative Error
¶ 35 Finally, Bobian argues that the trial court’s combined errors
amounted to cumulative error. We have concluded that the error in
admitting the blood pattern and tool marking testimony was
harmless. And even assuming that the prosecutor’s question about
18
the consistency of certain witnesses’ statements was also improper,
we still conclude that the cumulative effect of the errors does not
require reversal. We reach this conclusion because, as discussed
above, the blood spatter and tool marking testimony did not relate
to a material disputed issue, and the question about whether the
witnesses’ trial testimony was consistent with their earlier
statements elicited only an equivocal response. Moreover, the
asserted errors would not have had a cumulative prejudicial effect
on “the fairness of the trial proceedings [or] the integrity of the fact-
finding process”; therefore, reversal is not warranted based on
cumulative error. Howard-Walker v. People, 2019 CO 69, ¶ 24
(quoting People v. Lucero, 200 Colo. 335, 344, 615 P.2d 660, 666
(1980)).
V. Conclusion
¶ 36 The judgment of conviction is affirmed.
JUDGE WELLING concurs.
JUDGE BERGER specially concurs.
19
JUDGE BERGER, specially concurring.
¶ 37 Is it permissible for a prosecutor to ask a police detective to
testify at a criminal trial that the victim’s (or another witness’s)
testimony and prior statements were consistent? The majority
assumes, without deciding, that such testimony is impermissible.
I think the question needs to be decided.
¶ 38 I begin with the black letter rule. “[N]either lay nor expert
witnesses may give opinion testimony that another witness was
telling the truth on a specific occasion.” People v. Wittrein, 221 P.3d
1076, 1081 (Colo. 2009). This prohibition extends, for example, to
comments on a witness’s sincerity, People v. Eppens, 979 P.2d 14,
17 (Colo. 1999); believability, People v. Gaffney, 769 P.2d 1081,
1088 (Colo. 1989); or predisposition to fabricating allegations,
People v. Snook, 745 P.2d 647, 649 (Colo. 1987). Further, the
supreme court has “held that prosecutorial use of the word ‘lie’ and
the various forms of ‘lie’ are categorically improper.” Wend v.
People, 235 P.3d 1089, 1096 (Colo. 2010).
¶ 39 It is no answer that the detective’s opinion may have made it
easier for the jury to determine whether the statements and
testimony were consistent. One of the jury’s fundamental tasks is
20
to consider all of the testimony and to determine which version of
the material events is more credible. COLJI-Crim. E:05 (2018). The
jury heard all the out-of-court statements and the testimony, so
comments on the consistency of that evidence did not provide the
jury with any information beyond what it already had. Simply put,
a jury does not need help determining whether statements were
consistent, particularly from a witness who is obviously aligned
with the prosecution. See People v. McFee, 2016 COA 97, ¶ 76
(reasoning that detective’s opinion could not have been helpful
because it was based on the same information the jury had). The
admissibility inquiry should end there. See CRE 701 (limiting lay
opinions to those that are helpful to the jury); CRE 702 (limiting
expert opinions to those that assist the trier of fact).
¶ 40 But there is a stronger reason to reject such opinions. They
invariably constitute an indirect opinion on the credibility of the
witness. The supreme court has made clear that indirect opinions
on another witness’s credibility are subject to the same
exclusionary rules as direct opinions. Venalonzo v. People, 2017 CO
9, ¶ 32.
21
¶ 41 The detective’s opinion regarding consistency was, in effect,
nothing less than the detective telling the jury that the witness was
truthful in her accounts of the relevant events. The Attorney
General has not explained, and I cannot discern, any other
probative purpose for this opinion testimony.
¶ 42 Moreover, the circumstances surrounding this testimony are
more egregious than an off-the-cuff opinion regarding the credibility
of another witness. Here, the detective expressing the opinion was
the prosecution’s advisory witness in a case in which all other
witnesses had been sequestered under CRE 615. This detective
was the only witness in the entire case who was permitted to
remain in the courtroom during the testimony of other witnesses.
The prosecution leveraged this privilege (the purpose of which has
nothing whatsoever to do with the giving of such opinions) to
provide these prohibited opinions.
¶ 43 In reaching my conclusions, I recognize that at least one
division of this court has taken a different path. In People v. West,
2019 COA 131, ¶ 37, a detective testified that the timing of text
messages between the victim and the defendant was “consistent
with” other portions of the victim’s testimony and the police contact
22
with the victim and her mother. The detective also testified that
events recited by the defendant in his text messages were
“consistent with” other sources of information, including police
records and the victim’s mother. Id.
¶ 44 In rejecting, on plain error review, the defendant’s argument
that this testimony was improperly admitted, the West division
reasoned that “the detective said nothing about the truth of
testimony; instead the detective indicated only that certain
statements did not conflict with other statements or evidence.” Id.
at ¶ 43.
¶ 45 This analysis conflicts with the Colorado Supreme Court’s
teachings that witnesses may not directly or indirectly testify about
the truthfulness of another witness. See Wittrein, 221 P.3d at 1081.
Instead, I agree with the courts in other jurisdictions that have
prohibited such opinion testimony.
¶ 46 In Dickerson v. Commonwealth, 174 S.W.3d 451, 472 (Ky.
2005), the Kentucky Supreme Court held that it is improper for a
witness to testify that another witness has made consistent
statements, absent an express or implied charge of recent
fabrication or improper influence. The court reasoned:
23
We perceive no conceptual distinction between
testimony that repeats the witness’s prior
consistent statement verbatim and testimony
that the witness previously made statements
that were consistent with her trial testimony.
Either way, the evidence is offered to prove
that the declarant’s trial testimony is truthful
because it is consistent with her prior
statements.
Id.
¶ 47 In State v. McKerley, 725 S.E.2d 139, 142 (S.C. Ct. App. 2012),
a forensic interviewer was permitted to testify that, “in forming her
‘opinion as to whether . . . something happened,’ she considered
whether the victim’s statements were ‘consistent with the other
information’” she had on the case. Although the Court of Appeals of
South Carolina acknowledged that the forensic interviewer never
testified directly that she believed what the victim had stated, the
court nevertheless concluded that “there is no way to interpret [the
interviewer’s] testimony other than as her opinion that the victim
was telling the truth.” Id.
¶ 48 Similarly, in State v. Jennings, 716 S.E.2d 91, 94 (S.C. 2011),
the trial court permitted the State to introduce written reports of
the forensic interviewer in which the interviewer stated that the
“children provided ‘a compelling disclosure of abuse’ and provided
24
details consistent with the background information received from
mother, the police report, and the other two children.” The South
Carolina Supreme Court concluded that “[t]here is no other way to
interpret the language used in the reports other than to mean the
forensic interviewer believed the children were being truthful.” Id.
Accordingly, the court held the admission of the reports was
error. Id.
¶ 49 In my view, these cases were correctly decided and weigh
heavily against a conclusion that West was correctly decided. 1
Accordingly, I would hold that a police officer may not testify that
the victim’s (or another witness’s) testimony and prior statements
were consistent.
1 A similar issue was addressed by the United States Court of
Appeals for the Tenth Circuit in United States v. Toledo, 985 F.2d
1462 (10th Cir. 1993). In a kidnapping case, the court addressed a
psychiatrist’s testimony concerning the mental state of the victim.
The psychiatrist opined that the victim’s “consistency in reporting
the nature of her abduction, being taken against her free will at a
train station [and other facts] . . . were consistent with a high
likelihood that [the kidnapping] occurred.” Id. at 1469. The Tenth
Circuit held that it was not plain error to allow the testimony but
noted that the admissibility of this kind of opinion presented a
“close question.” Id. at 1470.
25
¶ 50 I recognize that under some circumstances, a police officer’s
belief regarding the consistency or inconsistency of a witness’s prior
statements (or even the officer’s belief that the person was or was
not telling the truth) might be relevant and admissible when the
course of the police investigation is legitimately at issue. See, e.g.,
Davis v. People, 2013 CO 57, ¶ 19; People v. Robles-Sierra, 2018
COA 28, ¶ 26.
¶ 51 But caution is warranted. The Tenth Circuit has analyzed
when the course-of-investigation exception is properly invoked.
United States v. Cass, 127 F.3d 1218 (10th Cir. 1997). While
acknowledging that the exception can allow for the admission of
otherwise inadmissible evidence, the Tenth Circuit observed that
“[c]ourts and commentators have recognized that out-of-court
statements should not be admitted to explain why a law
enforcement agency began an investigation if the statements
present too great a danger of prejudice.” Id. at 1223.
¶ 52 McCormick on Evidence rightly criticized the “apparently
widespread abuse” of this exception:
In criminal cases, an arresting or investigating
officer should not be put in the false position
of seeming just to have happened upon the
26
scene; he should be allowed some explanation
of his presence and conduct. His testimony
that he acted “upon information received,” or
words to that effect, should be sufficient.
Nevertheless, cases abound in which the
officer is allowed to relate historical aspects of
the case, replete with hearsay statements in
the form of complaints and reports, on the
ground that he was entitled to give the
information upon which he acted. The need
for the evidence is slight, the likelihood of
misuse great.
2 McCormick on Evidence § 249, at 104 (John W. Strong ed., 4th ed.
1992) (footnotes omitted), quoted in Cass, 127 F.3d at 1223.
¶ 53 Given this likelihood of misuse, the exception should only
apply when the course of the police investigation is relevant at trial.
Even then, a trial court must exercise sound discretion to limit
such otherwise inadmissible evidence solely to the purposes
underlying the course-of-investigation exception.
¶ 54 For these reasons, I reject the Attorney General’s argument
that the detective’s testimony “could be read” as permissible
testimony about the course of the investigation. The Attorney
General does not explain, and I cannot discern, how the course of
the investigation was relevant or at issue. And, as discussed, the
detective’s opinion testimony concerned the credibility of other
27
witnesses, not the detective’s investigation. Therefore, the
admission of the detective’s opinion that the victim’s prior
statements and testimony were consistent constitutes error.
¶ 55 Nevertheless, I agree with the majority that, as presented to
us, the prosecutor’s elicitation of the detective’s opinion does not
justify reversal under the plain error standard. While evidentiary
error occurred, Bobian presents this as a matter of prosecutorial
misconduct. The prosecutor’s elicitation of this opinion evidence
was not “flagrant or glaringly or tremendously improper,” People v.
McMinn, 2013 COA 94, ¶ 58, so reversal is not warranted. In light
of West, the error was not plain under this standard.
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