Summary
describing police officer's testimony that "I've seen people get into the back of their pants, because we handcuff in the back . . . reach into the pants and retrieve narcotics from there and drop them on the ground."
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No. 58902-4-I.
June 16, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-05545-1, Douglas D. McBroom, J., entered August 23, 2006.
Affirmed by unpublished per curiam opinion.
Anthony Dennis appeals his conviction for possession of cocaine. He challenges the admission of what he contends was improper opinion evidence. We conclude that the trial court did not abuse its discretion in admitting the disputed evidence because it did not embrace the ultimate issue of whether Dennis was guilty of the crime. We affirm.
FACTS
Following a traffic stop on May 27, 2006, Anthony Dennis was lawfully arrested and searched at the scene by a Washington State Patrol trooper. The trooper found no controlled substances and transferred Dennis to the custody of the Seattle Police Department for routine arrest processing. Seattle Police Officer Nicholas Evans searched Dennis again, but found no contraband. Dennis was then handcuffed and placed in the back of a Seattle police vehicle. Officer Evans and his partner, Officer Ben Hughey, drove Dennis to the King County jail. After removing Dennis from the vehicle, Officer Hughey "conducted another search of the rear seat as per practice to make sure that nothing was in the vehicle." Report of Proceedings (RP) (Aug. 16, 2006) at 64. He discovered a plastic baggie containing white material where Dennis's feet had been. The material was later determined to be cocaine. Officer Hughey testified that Dennis was the first and only suspect who had been in his patrol vehicle during the shift and that the vehicle was routinely searched before and after each shift. Dennis was charged with possession of cocaine.
During the trial, the court permitted Officer Hughey — over Dennis's objection — to testify about common practices for concealing and sloughing drugs based on his experience and training.
Q. . . . .
Tell the jury, just give examples of places that you have seen drugs sloughed.
A. I guess imagination could be the limit but my personal experiences, I've seen people slough them on the street, meaning I've contacted people and they throw them on the ground.
I've seen people slough them in the rear of my patrol vehicle.
I've seen people slough them at the actual jail facility.
. . . .
Q. Have you ever seen someone slough drugs while in handcuffs?
A. Yes.
. . . .
Q. Give us examples of some of the places you seen [sic] people take the drugs from with handcuffs?
A. Because somebody is in handcuffs, they do retain your mobility, it's not like you are immobilized, you can move as much as your shoulders can move, depending how limber, large or small. I've seen people retrieve them from pockets when people weren't actually searched yet when they were in handcuffs for other reasons, and I've seen people get into the back of their pants, because we handcuff in the back, I always do. So I've seen people actually put the hands in the back, reach into the pants and retrieve narcotics from there and drop them on the ground.
MR. EPPLER: Renew the same objection I did in chambers, especially along this line of questioning.
THE COURT: Okay.
MR. EPPLER: Pattern and irrelevant.
THE COURT: I'll just repeat my instruction to the jury on that.
This officer is being allowed to testify as an expert witness to aspects of his job and he is not testifying as to what the defendant did.
Id. at 47-49. On redirect, again over defense objection, Officer Hughey was permitted to testify about how someone in handcuffs could remove a package from his person and slough it nearby. His testimony was assisted by a demonstration using handcuffs.
Q. Have you seen people in handcuffs move their hands up and down —
A. Yes.
Q. — like this?
A. Yes.
Q. Have you witnessed them?
A. Yes.
Q. Have you witnessed them going side to side —
A. Yes.
Q. — like this?
A. Yes.
. . .
Q. Have you ever seen in your eight years somebody in their handcuffs like this able to reach underneath a coat?
A. Yes.
. . . .
Q. Let me ask a more pertinent question. Have you seen individuals roughly the size of Mr. Dennis, regardless of Mr. Dennis' actual weight, that rough size and weight, slough drugs?
A. Yes.
Q. Have you seen people do that while in handcuffs?
A. Yes.
Q. And have you seen that, people do that while in the back of a patrol vehicle? Have you seen people do that while in handcuffs?
A. Yes.
Id. at 108-15.
Dennis moved for a mistrial based on Officer Hughey's testimony. The trial court denied the motion, determining that the testimony was admissible opinion evidence. Dennis was convicted of cocaine possession. He now appeals his judgment and sentence.
ANALYSIS
Dennis argues that the trial court erred in admitting Officer Hughey's testimony because it constituted improper opinion evidence that violated his constitutional right to a jury trial. The State argues that the disputed evidence was properly admitted because it was based on Officer Hughey's training, experience, and personal observations and was not an expression of opinion on the ultimate issue of whether Dennis was guilty of possessing cocaine. We conclude that the evidence was properly admitted.
The trial court has broad discretion in determining whether to admit evidence, and its decisions will not be reversed absent a showing that it abused its discretion. State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997); see also City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993) ("The trial court must be accorded broad discretion to determine the admissibility of ultimate issue testimony"). The trial court's denial of a motion for a mistrial is also reviewed under the abuse of discretion standard. State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). The trial court abuses its discretion only if its exercise of discretion is manifestly unreasonable, based on untenable grounds, or based on untenable reasons. Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995). Where reasonable minds could take differing views, the trial court has not abused its discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001).
It is the jury's responsibility to determine a defendant's guilt or innocence, and witnesses should not tell the jury what result to reach. State v. Montgomery, No. 79564-9, 2008 WL 2054626, at *5 (Wash. May 15, 2008). Thus, "[t]he general rule is that no witness, lay or expert, may `testify to his opinion as to the guilt of a defendant, whether by direct statement or inference.'" Heatley, 70 Wn. App. at 577 (quoting State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987)). Inadmissible inferential testimony is that which "leaves no other conclusion but that a defendant is guilty." State v. Cruz, 77 Wn. App. 811, 815, 894 P.2d 573 (1995). Witnesses are also generally barred from testifying as to their opinion of the defendant's credibility, as this also invades the exclusive province of the jury. Demery, 144 Wn.2d at 759. However, opinion testimony that is otherwise admissible is not objectionable simply because it embraces an ultimate issue to be decided by the trier of fact. See ER 704; Heatley, 70 Wn. App. at 578-79. "[T]estimony 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 whether opinion testimony is permissible, the court will consider the circumstances of the individual case. Montgomery, 2008 WL 2054626, at *5.
Here, Dennis argues that Officer Hughey's testimony mirrored the prosecution's version of the facts so closely that it "invaded the province of the jury and [e]nsured they would conclude that [he] possessed the cocaine and had left it in the police car." Appellant's Br. at 7-8. In Dennis's view, Officer Hughey's testimony amounted to "telling the jury [that he] was guilty." Appellant's Br. at 12. Dennis is correct that opinion testimony that "leaves no other conclusion but that a defendant is guilty" is inadmissible. Cruz, 77 Wn. App. at 815. But here, the testimony at issue does not inexorably lead to a conclusion of guilt as he suggests. Officer Hughey simply told the jury about his personal observations of suspects — other than Dennis — and how they had sloughed contraband. His testimony did not go to the core issue of whether Dennis possessed cocaine. At most, his testimony tends to suggest that Dennis, if he had been in possession of cocaine, might have been physically capable of discarding it onto the vehicle floor even though he was handcuffed. This information was helpful to the jury and did not constitute a direct or inferential comment on his guilt. Even assuming the jury fully credited the disputed testimony and concluded that Dennis would have been physically capable of discarding drugs on the vehicle floor, it could also have reasonably concluded that he did not possess any drugs to discard because he had been searched twice before being placed in the police vehicle.
It is also noteworthy that the trial court repeatedly instructed the jury that Officer Hughey was not testifying as to what Dennis did. For example, in response to one of Dennis's objections, the court said, "This officer is being allowed to testify as an expert witness to aspects of his job and he is not testifying as to what the defendant did." RP (Aug. 16, 2006) at 49. We presume that juries follow the court's instructions absent evidence to the contrary. Montgomery, 2008 WL 2054626, at *7. Dennis has introduced no such evidence.
In sum, the testimony at issue left for the jury the determination of whether Dennis was guilty as charged. The trial court did not abuse its discretion in admitting Officer Hughey's testimony because it did not constitute improper opinion evidence. Dennis was not denied his right to a jury trial, and the court did not err in denying his motion for a mistrial. For the foregoing reasons, we affirm.