State v. Musayev3/4/2002
n as to the guilt of a defendant, whether by direct statement or inference.'' City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993). This is because an improper opinion invades the jury's independent determination of the facts. State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). '{H}owever, an opinion is not improper merely because it involves ultimate factual issues.' Heatley, 70 Wn. App. at 578.
Under ER 704, '{t}estimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.' To be otherwise admissible, opinion testimony must also satisfy ER 403, ER 701, and ER 702. Heatley, 70 Wn. App. at 579. Testimony that is not a direct comment on the defendant's guilt or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony. Id. at 578. In determining admissibility, courts consider the circumstances of each case, including the type of witness, the nature of the charges, the type of defense, and the other evidence. Id. at 579. '{T}he closer the tie between an opinion and the ultimate issue of fact, the stronger the supporting factual basis must be.' State v. Farr- Lenzini, 93 Wn. App. 453, 460, 970 P.2d 313 (1999). 'Where the {lay} opinion relates to a core element that the State must prove, there must be a substantial factual basis supporting the opinion. Courts also consider whether there is a rational alternative answer to the question addressed by the witness's opinion.' Id. at 462-63. The trial court has broad discretion in determining the admissibility of evidence, including alleged opinion testimony. Heatley, 70 Wn. App. at 577.
Musayev argues that Davidyants' opinion testimony is similar to that found inadmissible in Farr-Lenzini. In Farr-Lenzini, a state trooper testified about his opinion of the defendant's state of mind in a prosecution for attempting to elude. Id. at 461-62. The officer testified that 'the person driving the vehicle was attempting to get away from me and knew I was back there and refusing to stop.' Id. at 458. The court held that this testimony was reversible error because the driver's state of mind was a core element of the offense, the trooper testified to the defendant's guilt without an adequate factual basis, and there was a credible alternative explanation for his observations. Id. at 461-66.
On the other hand, courts generally uphold lay opinion testimony when it has a solid factual basis, is based on direct personal observations, and directly and logically supports the opinion. Heatley, 70 Wn. App. at 579- 80 (officer's opinion that defendant was intoxicated to the point that he could not drive safely); State v. Fisher, 74 Wn. App. 804, 813-14, 874 P.2d 1381 (1994) (officer's opinion that defendant's statement to 'go ahead and sell drugs' showed that defendant was involved in transaction); State v. Lewellyn, 78 Wn. App. 788, 794, 895 P.2d 418 (1995), rev'd on other grounds by State v. Smith, 130 Wn.2d 215, 922 P.2d 811 (1996) (opinion regarding degree of sobriety in a driving while intoxicated case, based on direct observations of defendant's behavior).
Here, Davidyants did not make a direct statement of Musayev's guilt, that is, he did not expressly testify that Musayev intended to kill him, but rather that Musayev tried to cut his throat. The testimony does refer to Musayev's state of mind and thus relates to a core element of the offense.
Unlike the trooper's testimony in Farr-Lenzini, however, Davidyants had a substantial factual basis for his opinion, drawn from his direct observations and personal experience during th
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