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State v. Engesser4/23/2003
ons why he believed Engesser had been lying.*fn5
[ .] The trial court's decision to allow the trooper to express his opinion on the credibility of the defendant's statement is troublesome. Perhaps allowing the officer to explain his reason for telling Engesser that the officer did not think he was lying during his statement may have been the court's initial rationale for allowing this testimony, but what followed went beyond that. Yet, the question remains whether this was reversible error.
[ .] Several circumstances mitigate the court's error in allowing this line of questioning. First, the grounds counsel now asserts on appeal were not the grounds for objection asserted during the officer's testimony. In trial, counsel objected for the reasons that the trooper's testimony was irrelevant, argumentative, speculative, prejudicial, and conclusory, calling for an ultimate opinion. On appeal, counsel contends that the error was in allowing inadmissible character evidence and an attack on Engesser's reputation for truthfulness. Perhaps the trial court would have been more responsive to those objections had they been made at the time. We have often held that an issue not raised in trial cannot be raised for the first time on appeal. State v. Hays, 1999 SD 89, , 598 NW2d 200, 203. Thus, largely the issues before us have been waived.
[ .] Second, to the extent that any complaint for error on this line of questioning remains subject to review, it must be noted that this questioning was for the purpose of allowing the officer to explain why he told Engesser during the interview, I "do not necessarily think you are lying." The purpose was to correct any misimpression the jurors might have taken from the officer's remark, not to give the jury the officer's assessment of Engesser's character or overall credibility. Third, assuming that the general objections were sufficient to preserve the question and assuming that it was improper for the trial court to allow this testimony to go on as it did, not every error warrants a new trial. State v. Owens, 2002 SD 42, , 643 NW2d 735, 755.
[ .] A similar error occurred in the second degree murder case of People v. Allen, 635 NYS2d 40 (SupCtAppDiv 1995). There, the appellate court concluded that it was improper for the trial court to permit the prosecutor to ask questions regarding a detective's opinion on the truth of the defendant's statement, effectively allowing the prosecutor to solicit the detective's opinion on the defendant's credibility. However, the court ruled that the error was not reversible per se. Noting the strength of the evidence and the fact that the trial court had admonished the jury that it was the ultimate arbiter of credibility, the Allen court found the error harmless.
[ .] Here, the jurors were instructed that they were the sole judges of the credibility of the witnesses and the weight to be given to their testimony. In the face of this instruction, the notion seems untenable that modern day jurors would acquiesce, sheep-like, in the opinion of a uniformed officer. South Dakota jurors are not likely to surrender their own assessment of the evidence, especially when a court instructs them that it is their duty to decide for themselves. Thus, even if the asserted error here was properly preserved for appeal, the error was harmless. SDCL 23A-44-14 (Rule 52 (a)); cf. SDCL 15-6-61.
3. Refusal of Hearsay
[ .] The defendant argues that the circuit court abused its discretion by refusing to admit the statement of an unavailable defense witness. Engesser sought to call his civil attorney, Dennis Finch, to testify that Sean Boyle told Finch that he saw Finley and Engesser leave the Full Throttle Saloon a
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