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[W] State v. Barr8/3/2004
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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 Ms. Johnson's credibility were a crucial part of the State's case--Officer Koss not only gave his opinion, but bolstered that opinion with statements related to his Reid training. In the context of this case, the error here had 'practical and identifiable consequences' at trial.
Merits of the Constitutional Issue.
Was the testimony an impermissible opinion on Mr. Barr's guilt? To meet his burden, Mr. Barr must establish that Officer Koss's testimony constituted an impermissible opinion on Mr. Barr's guilt. The determination as to whether testimony is an impermissible opinion on guilt or a permissible opinion pertaining to an ultimate issue requires the consideration of: (1) the particular circumstances of the case, (2) the type of witnesses called, (3) the nature of the testimony and the charges, (4) defenses invoked, and (5) the other evidence presented to the trier of fact. Heatley, 70 Wn. App. at 579. Significantly, opinion testimony as to guilt does not necessarily implicate a constitutional right. Id. at 585-86.
In Carlin, a police officer's testimony that a police dog tracked the defendant by following a 'fresh guilt scent' was held to be inadmissible opinion testimony implicating a constitutional right. Carlin, 40 Wn. App. at 703. The court concluded that '{p}articularly where such an opinion is expressed by a government official, such as a sheriff or a police officer, the opinion may influence the fact finder and thereby deny the defendant of a fair and impartial trial.' Id.
In Wilber, the State presented two officers who testified that they had received special training to observe body and eye movements that enabled them to tell when a person was being truthful. Wilber, 55 Wn. App. at 298-99. The officers then gave opinions on whether a fact witness in the case was being truthful. The Wilber court, analyzing the testimony as expert testimony under ER 702, found the officers' statements inadmissible because the officers' testimony did not satisfy generally-accepted, scientific evidence standards. Id. at 299. Because the Wilber court resolved the issue by applying ER 702, the court did not apply the constitutional harmless error standard. Significantly, the Wilber court noted that the error would have been one of constitutional magnitude if the officers' testimony had been an impermissible opinion on the defendant's guilt. Wilber, 55 Wn. App. at 299 n.2.
The State maintains that the testimony here was not improper because the officer did not testify that Mr. Barr was being deceptive, but, rather, the officer's testimony consisted of observations of Mr. Barr's behavior indicating that there were signs that Mr. Barr was being deceptive. This is a distinction without a difference. The officer's testimony was clearly designed to give the officer's opinion as to whether Mr. Barr had committed the offense. For example, Officer Koss stated: 'What I have been taught {by} some of these schools is people feel guilty and that they realize there is {sic} consequences and lots of times they'll verbalize those fears. So it was obvious to me he was afraid he was going to go to prison for this.' RP (Dec. 11, 2002) at 81. Officer Koss also testified that: 'At one point he made a statement about swearing on his daughter's life or something like that and I called him on it in the tape, if you remember, you know, that's one of the big flags like that and like the utterances about the thing going to prison, those are big flags when you see those things start to bunch together. You
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