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State v. Barr9/21/2004
s was true. In other words, the officer was testifying, as an expert, as to his opinion regarding manifestations of Mr. Barr's guilt.
Relying on Heatley, the State argues the officer's testimony was admissible because his observation and analysis of Mr. Barr's behavior were helpful to the jury. The officer in Heatley was asked his opinion of the defendant's impairment due to alcohol consumption. The officer responded:
'Based on my, his physical appearance and my observations of that and based on all the tests I gave him as a whole, I determined that Mr. Heatley was obviously intoxicated and affected by the alcoholic drink that he'd been, he could not drive a motor vehicle in a safe manner. At that time, I did place Mr. Heatley under arrest for {driving while intoxicated}.'
Heatley, 70 Wn. App. at 576. Mr. Heatley argued that the officer's opinion encompassed the only disputed issue: whether he was guilty of driving while intoxicated. Id. at 577. In rejecting this argument, the appellate court acknowledged that the officer's testimony encompassed ultimate factual issues before the trier of fact; however, the court also concluded that the officer's testimony did not give a direct opinion on the defendant's guilt. Id. at 578. Further, the court held that the officer's opinion was admissible because it was based on the officer's experience and observations, and because the opinion was of assistance to the trier of fact. Id. at 579-80.
Heatley is distinguishable because the officer had experience in observing impairment based on alcohol and Washington permits lay witness testimony as to the degree of intoxication of another person if the witness has had the opportunity to observe that person. Heatley, 70 Wn. App. at 580. In contrast, Washington courts have not yet recognized as reliable any investigatory method based on the observation of a witness's body movements. See Wilber, 55 Wn. App. at 298-99. Here, as in Wilber, there is no evidence that the officer's opinion as to the significance of the witness's body movements was based on a theory generally accepted by the scientific community.
In short, the officer's testimony invaded the province of the jury by impermissibly commenting on Mr. Barr's guilt.
Harmless Beyond a Reasonable Doubt. Was the error harmless beyond a reasonable doubt? The State contends that the error in admitting the testimony was harmless because the jury was able to view the videotape and make its own determination as to whether Mr. Barr was telling the truth. We employ the 'overwhelming untainted evidence' test to determine if the error was harmless. State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985). Under the overwhelming evidence test, the court examines whether the untainted evidence is so overwhelming that it leads necessarily to a finding of guilt. Id.; Carlin, 40 Wn. App. at 703.
In this case, the untainted evidence is not so overwhelming as to necessarily lead to a finding of guilt. Here, Officer Koss testified that Mr. Barr was lying when he denied the allegations. At its heart, the ultimate issue here revolved around an assessment of the credibility of Mr. Barr and A.J. The court recognizes that the opinion of a government official, especially a police officer, may influence a jury. See State v. Carlin, 40 Wn. App. 698, 703, 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). Not only did Officer Koss indicate that he thought Mr. Barr was guilty, but the officer also testified that he had training in the area of discerning when people are lying. Thus, the officer's impressions of Mr. Barr's guilt were given added credibility
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