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State v. Barr9/21/2004
Detective Roe he was sitting like we are. As soon as I came in {and} started questioning his knees came up on the bench, his hands came in here and that's a protective posture that we are taught to look for and they're protecting themselves. They feel like they're under attack.
RP (Dec. 11, 2002) at 82-83 (emphasis added).
Q. Did he have any labored breath?
A. No, he wasn't huffing or puffing, the heaving. It seems disingenuous to me, didn't seem real.
Q. How about change in voice, inflextion {sic}?
A. There were times when I was pressuring him when I was trying that theme of being more direct with him, that he would react the same way, you know, he would hit the table. He would move out closer to me on the table and raise his voice as if he was upset, but then once we start talking again he would be right back down. Again, it didn't seem genuine to me. It didn't seem like if he was really feeling these emotions and that worked up he would be hitting the table and stuff. He wouldn't have these ups and downs so quickly.
RP (Dec. 11, 2002) at 84 (emphasis added).
On appeal, Mr. Barr points out that the Reid Investigative Technique has never been accepted as admissible evidence in Washington. Accordingly, he contends that Officer Koss's testimony constituted impermissible testimony as to Mr. Barr's guilt that invaded the province of the jury. Mr. Barr did not raise this issue with the trial court. An error may be raised for the first time on appeal if it is a manifest error involving a constitutional right. RAP 2.5(a)(3); State v. McDonald, 138 Wn.2d 680, 691, 981 P.2d 443 (1999) (quoting State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995)).
We determine whether an error is a manifest constitutional error by applying a four-step process: (1) we first determine whether the alleged error is in fact a constitutional issue; (2) next, we determine whether the error is manifest, that is, whether it had 'practical and identifiable consequences'; (3) we then address the merits of the constitutional issue; and (4) finally, we pass upon whether the error was harmless. State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).
Constitutional Issue. Is there a constitutional issue involving a manifest error? Generally, we review a trial court's decision to admit or exclude testimony for an abuse of discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). The decision to admit or exclude opinion testimony generally involves the routine exercise of discretion by the trial court under applicable evidentiary rules. These rules govern evidentiary questions that do not necessarily implicate constitutional rights. See State v. Trader, 54 Wn. App. 479, 484, 774 P.2d 522 (1989); State v. Wilber, 55 Wn. App. 294, 299, 777 P.2d 36 (1989). On the other hand, no witness may express an opinion as to the guilt of a defendant. Demery, 144 Wn.2d at 759. Such an opinion violates the defendant's right to a trial by an impartial jury and his right to have the jury make an independent evaluation of the facts. State v. Carlin, 40 Wn. App. 698, 700-01, 700 P.2d 323 (1985), overruled on other grounds by City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993).
Because a constitutional issue is raised if the testimony here constitutes an impermissible opinion on Mr. Barr's guilt, the first part of the inquiry is satisfied.
Manifest Error. An error is 'manifest' if it had 'practical and identifiable consequences in the trial of the case.' Lynn, 67 Wn. App. at 345. The officer's assessments concerning Mr. Barr's and A.J.'s credibility were a crucial part of the State's case--O
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