State v. Demery

144 Wash. 2d 753

• Court: Washington Supreme Court
• Decided: September 13, 2001
• Docket: No. 69693-4
• Status: Published

Opinions

Owens, J.

— In this appeal, we must decide whether statements made by police officers during a taped interview accusing the suspect of lying constitute impermissible opinion testimony. The police commonly use this interview technique to determine whether a defendant will change her story during an interview. The defendant was charged with one count of robbery and three counts of kidnapping. The trial court denied the defendant’s motion to redact the officers’ statements on grounds that the statements were necessary to provide context to the defendant’s responses. The Court of Appeals reversed, concluding that the officers’ statements in the tape constituted impermissible opinion testimony regarding the veracity of the defendant. Because we conclude that such statements are not opinion testimony, we reverse the decision of the Court of Appeals and affirm the defendant’s conviction.

FACTS

On May 4,1998, Thomas Kelly and his two children were waiting at a bus stop in Lakewood when the defendant approached them. The defendant, Kenneth Demery, confronted Kelly and demanded that Kelly repay money that he had previously borrowed and that he pay an additional $1,000 as interest. When Demery brandished a gun, Kelly gave him two $50 bills and suggested that they should go to a bank so that Kelly could withdraw additional money. Kelly was afraid that Demery would harm his children, so he planned to contact security at the bank in order to defuse the situation.

Demery accompanied Kelly and his children to the Key Bank at the Lakewood Mall. Kelly suggested that Demery should leave his gun outside, so Demery placed the gun by a recycling bin in an alley near the bank. While Demery remained in the lobby with the children, Kelly approached a teller and informed her that he had been brought into the bank at gunpoint and that the person with the gun had demanded money from him. The bank alerted mall security, and when the guard arrived at the bank, he approached Demery and asked him to wait outside. The police were also summoned to the scene.

After the officers arrived at the bank, one officer told Demery to remain on the premises while he investigated the situation. However, when Kelly and the other officer went to retrieve the gun from the recycling bin, Demery ran away from the officers. The officers gave chase, and Demery was arrested. The officers recovered both the gun and the two $50 bills that Kelly had given to Demery.

After he was taken to the police station, Demery agreed to give a taped statement to Detective Rick Adamson. Detective Adamson read Miranda¹ warnings to Demery on the tape, and Detective Adamson and Detective Sergeant Andy Estes questioned him regarding the events leading up to his arrest. During the course of the interview, the detectives made statements suggesting that Demery was lying.² These statements were not redacted when the tape and a transcript were admitted during the defendant’s trial.

Demery was charged with one count of first degree robbery and three counts of first degree kidnapping. In addition, a weapons enhancement was added to each charge. Prior to trial, the court held a CrR 3.5 hearing and determined that the defendant’s statements made in the taped interview were voluntary and that the tape was admissible at trial. At trial, the judge, over objection, admitted the tape without redacting the statements made by the officers that suggested that Demery was lying during the interview. The trial court concluded that the officers’ statements provided context for Demery’s statements and that the statements were part of a commonly used police interview technique.

The tape was played before the jury during Detective Adamson’s direct testimony. During cross-examination, Detective Adamson was questioned regarding his statement in the taped interview that the gun would have Demery’s fingerprints on it. The detective admitted that he did not actually know at that time whether Demery’s fingerprints were in fact on the gun.³ In addition, Adamson stated that he had made this representation regarding the fingerprints to see if Demery would change his story. Finally, the detective explained that police lie to suspects as part of a commonly used interview tactic that is designed to see whether a suspect will change her story during the course of an interview.

Demery was convicted of first degree robbery and of one count of first degree kidnapping; however, Demery was acquitted of the charges of kidnapping in relation to the children. Demery appealed, contending that the trial court erred in denying his motion to redact the officers’ statements from the tape. The Court of Appeals agreed that the trial court erred in admitting the unredacted tapes on grounds that the officers’ statements constituted impermissible opinion testimony regarding the veracity of the defendant. The Court of Appeals concluded that the error was not harmless, so the court reversed the trial court’s decision and remanded the case. The State of Washington sought review, which this Court granted.

ISSUE

Do statements made by police officers in a taped interview accusing the defendant of lying constitute impermissible opinion testimony regarding the veracity of the defendant when such statements are played before the jury during trial?

ANALYSIS

The trial court has wide discretion to determine the admissibility of evidence, and the trial court’s decision whether to admit or exclude evidence will not be reversed on appeal unless the appellant can establish that the trial court abused its discretion. See State v. Rivers, 129 Wn.2d 697, 709-10, 921 P.2d 495 (1996). A trial court abuses its discretion only if no reasonable person would adopt the view espoused by the trial court. State v. Sutherland, 3 Wn. App. 20, 21, 472 P.2d 584 (1970). Where reasonable persons could take differing views regarding the propriety of the trial court’s actions, the trial court has not abused its discretion. Id. at 21-22.

The State contends that the trial court did not abuse its discretion when the trial court admitted the police officers’ statements asserting that the defendant was lying during the taped interview. Specifically, the State argues that the statements did not constitute impermissible opinion testimony regarding the credibility of a witness; rather, the State argues that these statements were made as part of a commonly used police interview technique to determine whether a suspect will change her story. Furthermore, the State emphasizes that the statements made by the police officers were necessary to give context to the responses offered by the defendant.

Generally, no witness may offer testimony in the form of an opinion regarding the guilt or veracity of the defendant; such testimony is unfairly prejudicial to the defendant “because it ‘invad[es] the exclusive province of the [jury].’ ” City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993) (quoting State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987)); see also ER 608 cmt. (noting that “[t]he drafters of the Washington rule felt that impeachment by use of opinion is too prejudicial and on a practical level is not easily subject to testing by cross examination or contradiction”). In determining whether statements are in fact impermissible opinion testimony, the court will generally consider the circumstances of the case, including the following factors:

(1) “the type of witness involved,”

(2) “the specific nature of the testimony,”

(3) “the nature of the charges,”

(4) “the type of defense, and”

(5) “the other evidence before the trier of fact.”

Heatley, 70 Wn. App. at 579. Admitting impermissible opinion testimony regarding the defendant’s guilt may be reversible error because admitting such evidence “violates [the defendant’s] constitutional right to a jury trial, including the independent determination of the facts by the jury.” State v. Carlin, 40 Wn. App. 698, 701, 700 P.2d 323 (1985), overruled on other grounds by Heatley, 70 Wn. App. 573; see also Dubria v. Smith, 224 F.3d 995, 1001-02 (9th Cir. 2000) (suggesting that the admission of taped interviews containing police statements challenging the defendant’s veracity may also violate the defendant’s right to due process), cert. denied, 531 U.S. 1148 (2001).

One major issue involved in this case is whether statements made by police officers during a taped interview fall within the purview of “opinion testimony.” “Testimony” refers to evidence that is given at trial while the “witness” is under oath. Black’s Law Dictionary 1485 (7th ed. 1999). Similarly, a “witness” is a person who provides evidence under oath or affirmation. Id. at 1596. Moreover, “opinion testimony” can be defined as “[testimony based on one’s belief or idea rather than on direct knowledge of the facts at issue.” Id. at 1486.

In contrast, the officers’ statements were not offered during live testimony at trial. Rather, the officers’ statements in the taped interview were part of a commonly used police interview technique, designed to see whether a defendant will change her story during the course of an interrogation. Because the officers’ statements were not made under oath at trial,⁴ we conclude that they do not fall within the definition of opinion testimony for purposes of the evidentiary prohibition. This position is consistent with other cases in which we “ha[ve] expressly declined to take an expansive view of claims that testimony constitutes an opinion on guilt.” Heatley, 70 Wn. App. at 579; see also State v. Lopez, 95 Wn. App. 842, 856-57, 980 P.2d 224 (1999) (noting that the defendant’s out of court statements regarding the veracity of his children were not “testimony” and suggesting that the statements were not subject to the evidentiary prohibition).

In Warren v. Hart, 71 Wn.2d 512, 514, 429 P.2d 873 (1967), we noted that evidence regarding the issuance or nonissuance of a citation by a police officer would be inadmissible as opinion evidence. We concluded that such evidence would constitute indirect opinion evidence, subject to the evidentiary prohibition. See Warren, 71 Wn.2d at 514; see also Kostelecky v. NL Acme Tool/NL Indus., Inc., 837 F.2d 828, 830-31 (8th Cir. 1988) (asserting that an accident report, which contained a statement that the accident had been caused by the defendant’s conduct, should not have been admitted into evidence because it constituted impermissible opinion evidence). However, the police statements in this case do not constitute even indirect opinion evidence. Unlike accident reports and police citations that are designed to record the author’s spur-of-the-moment assessment of the situation, we note that the officers’ statements in this case were designed solely to see whether the defendant would change his story during the interview.

Another relevant consideration in this case is the purpose for which the “evidence” was offered at trial. Unlike statements offered by a witness during trial to impeach the defendant’s credibility, the officers’ statements in this case were admitted solely to provide context for the responses offered by the defendant.⁵ When the trial court was considering the motion to redact the officers’ statements, the prosecutor argued that the defendant’s inadequate responses to many statements made by the police were admissible to impeach the defendant’s credibility. The trial court concluded that the defendant had made voluntary responses to the officers’ statements and that the defendant’s responses were relevant. In addition, the trial court concluded that the officers’ statements were not hearsay and that they were necessary to provide context to the defendant’s responses. We note, however, that when the trial court admits third party statements to provide context to a defendant’s responses, the trial court should give a limiting instruction to the jury, explaining that only the defendant’s responses, and not the third party’s statements, should be considered as evidence. Such a limiting instruction was not required in this case because the jury clearly understood from the officer’s testimony that the statements were offered solely to provide context to the defendant’s relevant responses.

As we have recognized, it is the function of the jury to assess the credibility of a witness and the reasonableness of the witness’s responses. See State v. Whelchel, 115 Wn.2d 708, 724, 801 P.2d 948 (1990). Because the trial court concluded that the responses made by the defendant were relevant in regard to the defendant’s credibility as a witness, we conclude that the jury was entitled to assess the reasonableness of the defendant’s responses to the officers’ assertions that he was lying.

Other jurisdictions have considered whether an officer’s statement during an interview that the suspect was lying should be excluded. For example, the Superior Court of Pennsylvania concluded that an officer’s statements that the suspect was lying during a videotaped interview were properly redacted because such statements are analogous to the prosecutor making statements during trial that she thought that the defendant was guilty or untruthful. Commonwealth v. Kitchen, 1999 PA Super. 100, 730 A.2d 513, 521. However, the Kitchen court failed to explain why police statements made during an interview were the same as statements made by a prosecutor during trial.⁶

The Carlin court noted that when a law enforcement officer gives opinion testimony, the jury is especially likely to be influenced by that testimony. Carlin, 40 Wn. App. at 703. An officer’s testimony offered during trial may resemble a prosecutor’s statements made during trial only in that both the officer and the prosecutor represent the State; nevertheless, an officer’s statement made during a taped interview is essentially different from a prosecutor’s statement made during trial. An officer’s live testimony offered during trial, like a prosecutor’s statements made during trial, may often “carr[y] an ‘ “aura of special reliability and trustworthiness.” ’ ” United States v. Espinosa, 827 F.2d 604, 613 (9th Cir. 1987) (quoting United States v. Young, 745 F.2d 733, 766 (2d Cir. 1984) (quoting United States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979))). However, the Ninth Circuit Court of Appeals has also noted that an officer’s statements made during a pretrial interview are “not the types of statements that carry any special aura of reliability.” Dubria, 224 F.3d at 1002.

The Ninth Circuit has concluded that juries will not accord any special credibility to statements made by police officers during a pretrial interview. Dubria, 224 F.3d at 1001 n.2. Although the Dubria court recognized that the police officers had “ ‘suggested in a variety of ways they did not believe [the defendant],’ ” the court noted that juries understand that the police typically do not believe the defendant’s story. Id. Furthermore, the court explained that a jury would not give the officer’s statements in a pretrial interview any more weight than the fact that the prosecutor had chosen to bring charges against the defendant. Id. Usually, the prosecutor brings charges against a defendant because, like the police, the prosecutor does not believe the defendant’s story. Presumably, juries do not attach any special significance to this fact. Because officer’s statements made during a pretrial interview are not like statements made by a prosecutor during a trial, we decline to adopt the position of the Kitchen court.

On the other hand, the Missouri Supreme Court has concluded that an officer may testify about his statements accusing the defendant of lying, if such testimony is designed to provide context to the interview. See State v. O’Brien, 857 S.W.2d 212, 221 (Mo. 1993). In O’Brien, the trial court allowed a police officer to testify that he had interrupted the defendant during a pretrial interview and accused the defendant of lying. Id. The O’Brien court concluded that the admission of the out of court statement was not error because the witness was “not telling the jury that, in his opinion, the defendant [was] a liar”; rather, the court concluded that the officer was “describing the give- and-take of his interrogation.” Id. The O’Brien court recognized that the statements were admissible to help the jury understand what happened during the course of the interview. See id.

Similarly, the Ninth Circuit Court of Appeals concluded that the defendant’s federal, due process rights were not violated when the trial court admitted into evidence the detective’s statements that the defendant was lying. Dubria, 224 F.3d at 1001. As in the current case, the detective’s statements in Dubria were also part of a taped interview, and the trial court refused to redact the statements. Id. The Dubria court noted that the officer’s statements “gave context to Dubria’s answers” and “were not the types of statements that carry any special aura of reliability.” Id. at 1002.

Like the trial court in Dubria, the trial court in this case concluded that the officers’ statements were necessary to give context to the defendant’s responses. During trial, the State offered the defendant’s responses rather than the officers’ statements to impeach the defendant’s credibility. We conclude that the officers’ statements merely provided the necessary context that enabled the jury to assess the reasonableness of the defendant’s responses. For this reason, we also conclude that the officers’ statements did not constitute impermissible opinion testimony.

CONCLUSION

Generally, witnesses are not permitted to testify regarding the veracity of another witness because such testimony invades the province of the jury as the fact finder in a trial. Such testimony from a law enforcement officer may be especially prejudicial because the officer’s testimony often carries a special aura of reliability. However, statements made by police officers during a taped interview accusing the defendant of lying do not carry this aura of reliability because such statements are part of a police interview technique commonly used to determine whether a suspect will change her story during the course of an interview. The officers’ statements are not testimony and are admissible to provide context to the relevant responses of the defendant. Since we have concluded that the officers’ statements do not constitute impermissible opinion testimony, we reverse the decision of the Court of Appeals and affirm the conviction of the defendant.

Smith, Ireland, and Bridge, JJ., concur.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 The defendant asserts that the trial court committed reversible error by admitting the following statements made by the police during the taped interview:

Detective Adamson:] It’s [the gun] got, it’s gonna have your fingerprints on it. You ran from the police and right now nobody’s gonna believe your story. Now, you need to start tellin’ the truth.

Defendant:] Okay.

Ex. 23, at 6.

Detective Sergeant Estes:] Are you sure this is the story that you wanna stick with?

Defendant:] Yeah. That’s the truth.

[Adamson:] Do you realize what you’re lookin’ at?

Defendant:] What am I lookin’ at?

[Adamson:] Three counts of first degree kidnapping, one count of robbery.

[Estes:] All of 'em Class A felonies. We’ll even throw in the possession of the firearm that you’re not allowed to possess.

Defendant:] Oh, no.

[Adamson:] Yeah. So you’re sure this is the story you wanna stick with?

Defendant:] That’s the truth. I’m not gorma sit here and lie to you especially when I know I didn’t do nothin’.

Ex. 23, at 11.

[Adamson:] How have you been treated since you’ve been here?

Defendant:] I’ve been treated all right. I mean you guys are lookin’ at me, you know, [sic] talkin’ to me like I’m lying.

[Adamson:] Cause you are.

[Defendant:] Oh.

3 In fact, the State’s witness testified that no fingerprints were found on the gun. 3 Report of Proceedings (RP) at 173.

4 Generally, “[a] statement made out of court is inherently less reliable than a sworn statement made at trial because the declarant has not been subjected to the safeguards that ensure the accuracy of her testimony.” Kimberley Seals Bressler, Comment, Balancing the Right to Confrontation and the Need to Protect Child Sexual Abuse Victims: Are Statutes Authorizing Televised Testimony Serving Their Purpose?, 12 U. Puget Sound L. Rev. 109, 113 (1988). The “oath” is important because the person giving it “signifies that he is bound in conscience to perform an act [such as testifying] faithfully and truthfully.” Black’s Law Dictionary 1220 (4th ed. 1951). Out of court statements and sworn testimony presumably affect juries in different ways. For example, the jury is present when the witness swears that her testimony will be the truth. By this act, the jury may assume that the witness is bound by conscience to tell the truth. On the other hand, regarding out of court statements, the jury can discern little about the demeanor of the declarant because the jury was not present when the declarant made the statement. It may be due in part to this “aura of reliability” surrounding sworn statements that the drafters of the Washington rules on evidence sought to prohibit the use of opinion testimony. Assuming this to be so, it would be logical to assume that a jury would not afford the same level of credibility to an out of court statement and that such a statement would be much less likely to prejudice the jury against the defendant.

5 Many federal circuit courts have recognized that statements made by a third party in a taped interview are admissible to provide context to the defendant’s answers. See United, States v. Flores, 63 F.3d 1342, 1358-59 (5th Cir. 1995); see also United States v. Catano, 65 F.3d 219, 225 (1st Cir. 1995); United States v. Sorrentino, 72 F.3d 294, 298 (2d Cir. 1995); United States v. Gutierrez-Chavez, 842 F.2d 77, 81 (5th Cir. 1988); United States v. Whitman, 771 F.2d 1348, 1351 (9th Cir. 1985).

6 In addition, the Kitchen court noted that when a police officer questions a defendant about whether she had lied during the interview, then the officer’s statement need not be redacted. Kitchen, 730 A.2d at 522. The Kitchen court failed to explain why asking a defendant if she was lying would be less prejudicial than stating that she was lying. The police presumably use both techniques to see whether the suspect will change her story during an interview.