Opinion
No. 60577-1-I.
August 11, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-8-01378-6, Theresa B. Doyle, J., entered August 23, 2007.
Reversed by unpublished per curiam opinion.
At a bench trial for robbery and witness intimidation, the victim's father testified that his son exhibited none of the typical signs of untruthfulness when recounting the incident. D.T. claims that this testimony constituted improper comment on the credibility of a witness. The State concedes the testimony was improper. Because the error was not harmless, we reverse.
Facts
D.T., a juvenile, was convicted of second degree robbery and intimidating a witness. At trial, the witnesses presented two very different stories about the incident that led to the charges.
R.M., the victim, testified that D.T. approached him in front of the Burien library and asked if he could borrow R.M.'s cell phone. R.M. responded that D.T. could not use the phone because he had already used too many minutes. D.T. started to walk away but then turned back and began punching R.M. in the face. R.M. fell to the ground. D.T. punched R.M. a couple more times and then took the cell phone from his pocket. D.T. told R.M. not to snitch or his friends would find R.M. and shoot him. After D.T. walked away with the cell phone, R.M. went to a nearby Burger King to clean the blood off his face. He then went to the nearby Easy Does It Fellowship Hall — where he felt safe — to call his father. After his father arrived at the hall, they called the police and R.M. reported the incident.
R.M.'s father also testified. He told the court that R.M. suffers from "bipolar" disorder. Because of his experience with his son, and in a past job working in a mental health treatment facility, R.M.'s father told the court that he had experience determining whether somebody is lying or telling the truth. He said that he uses this knowledge to ascertain when R.M. is being truthful. Over defense objections, the court allowed him to explain that he watches his son for deflection, evasion, lack of eye contact, exaggeration, a cocky grin, a gleam in his eye, or foot-shuffling. According to R.M.'s father, R.M. did not exhibit any of these signs when he recounted the incident.
D.T.'s testimony differs substantially. He claimed that his sister and her friend planned to meet him at a park and ride to go smoke marijuana. D.T. said that he saw R.M. and offered to let him smoke with them, since R.M. had shared his marijuana on a previous occasion. As they were all walking to the place they planned to smoke, D.T. asked R.M. if they could listen to music on his cell phone. R.M. gave D.T. his phone, and D.T. selected some music to play. According to D.T., when they arrived at their destination, R.M. made a derogatory remark about D.T.'s sister, and D.T. became angry. D.T. testified that he knew a fight was brewing and that they swung at each other at the same time. D.T. said he punched R.M. in the face; R.M. punched D.T. on the back of the head. D.T. said that he pushed R.M. to the ground, landed a few more punches, and then walked away. He warned R.M. not to "run up" on him and resume the fighting. D.T.'s sister and her friend substantially corroborated his story.
Discussion
D.T. contends that R.M.'s father gave improper opinion testimony about R.M.'s credibility. The State concedes that he gave improper expert testimony about the indicia of reliability of R.M.'s recounting of the incident. The State contends that R.M.'s father made an indirect statement about R.M's credibility and, therefore, an indirect statement on D.T.'s guilt. Because his testimony represents only indirect comment on guilt, the State argues that the non-constitutional harmless error standard should apply. D.T. contends that the comments invaded the province of the fact-finder, and rise to the level of constitutional error.
The case law is clear that testimony containing opinions on a defendant's guilt are unconstitutional. "`No witness, lay or expert, may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference.' Such an opinion violates the defendant's right to a trial by an impartial jury and his right to have the jury make independent evaluation of the facts." State v. Wilber, 55 Wn. App. 294, 297, 777 P.2d 36 (1989) (quoting State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987)). The case law also clearly shows that witness opinion as to another witness' credibility is improper. "[N]o witness may give an opinion on another witness' credibility." State v. Carlson, 80 Wn. App. 116, 123, 906 P.2d 999 (1995). But, whether comments on witness credibility rise to the level of constitutional error, or merely represent an evidentiary error, remains uncertain.
The State argues that the indirect statement on guilt is not a direct violation of a constitutional right. But, the cases cited by the State pertain to the determination of whether opinion testimony rises to the level of manifest constitutional error. See, State v. Kirkman, 159 Wn.2d 918, 936, 155 P.3d 125 (2007); State v. King, 131 Wn. App. 789, 797, 130 P.3d 376 (2006), review denied 160 Wn.2d 109 (2007);State v. Warren, 134 Wn. App. 44, 55, 138 P.3d 1081 (2006). These cases do conclude that comments on credibility must be explicit to reach manifest constitutional error. "Admission of witness opinion testimony on an ultimate fact, without objection, is not automatically reviewable as a `manifest' constitutional error. `Manifest error' requires a nearly explicit statement by the witness that the witness believed the accusing victim." Kirkman, 159 Wn.2d at 936. But, manifest constitutional error applies in situations where the defendant failed to object to the testimony at trial. RAP 2.5(a)(3). Kirkman does not stand for the general proposition that testimony on witness credibility must be explicit to violate a constitutional right. TheKirkman court explicitly narrowed its holding to apply only to unpreserved errors. "This court holds that opinion testimony relating only indirectly to a victim's credibility,if not objected to at trial, does not give rise to a `manifest' constitutional error." Id. at 922 (emphasis added).
The cases concerning manifest constitutional error do not apply to this case, because D.T. objected to the testimony at trial. The error was properly preserved for review. Given the objection, the testimony does not need to rise to the level of a manifest constitutional error. The cited case law does not support the State's theory that the indirect nature of the comment on credibility and guilt affects the constitutionality of the testimony.
Opinion testimony as to the guilt of a defendant "violates his constitutional right to a jury trial, including the independent determination of the facts by the jury." State v. Carlin, 40 Wn. App. 698, 701, 700 P.2d 323 (1985),overruled on other grounds. Comments on the credibility of a key witness may also be improper because issues of credibility are reserved for the trier of fact. City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993). This infringement on the province of the fact-finder suggests an error of constitutional magnitude. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001). Indeed, while Kirkman finds that the indirect comment on witness credibility does not rise to the level of manifest constitutional error, the opinion reaches this holding without rejecting the error as non-constitutional. This implies that such comments can constitute constitutional error.
But, this court has taken a narrow approach to whether testimony concerning witness credibility is an opinion on guilt.Heatley, 70 Wn. App. at 579. In State v. Wilber, two police officers testified that a key witness had told the truth based on their special training to evaluate truthfulness. 55 Wn. App. 294, 297, 777 P.2d 36 (1989). On appeal, the court concluded that such testimony did not constitute an opinion on the defendant's guilt. "Arguably, the officers' opinions are also, inferentially, opinions on the defendant's guilt. However, to take such an expansive view of the prohibition against opinion testimony on the guilt of a defendant is unnecessary." Id. at 298. As a result, the court evaluated the testimony as expert testimony, rather than an impermissible opinion on the defendant's guilt.Id. Upon finding the admission of the evidence to be improper, the court employed the non-constitutional harmless error standard. Id. at 299-300.
Following this example, we conclude that the indirect statement on R.M.'s credibility was not an opinion on D.T.'s guilt. "Testimony deemed to be an opinion as to a defendant's guilt must relate to the defendant." Id. at 298. As a result, we will employ the non-constitutional harmless error standard to evaluate the testimony that the State conceded as improper. Under non-constitutional Page 7 harmless error analysis "the error is not prejudicial unless, within reasonable probabilities, it materially affected the outcome of the trial."Id. at 299. In this case, the only evidence consisted of the two versions of the events told by the victim and defense witnesses. Therefore, credibility was the central issue facing the court. The findings of fact reflect that the trial court did not believe D.T. or his witnesses, finding them "not particularly credible," and their stories contradictory. In contrast, the court found R.M. credible. In support of this finding, the court cited his straightforward, timid and fearful demeanor. The court also stated that R.M appeared incapable of elaborate fabrication and he did not seem aggressive. His story was consistent when retold. But, the court also relied on R.M's father's opinion testimony. "[D.M.] can read his son. He knows when [R.M.] is being evasive. He also knows the indicia of untruthfulness with [R.M.]. He did not see any indicia of untruthfulness when [R.M.] told him what had happened."
The constitutional harmless error standard is more rigorous. A constitutional error is harmless only if the reviewing court is "convinced beyond a reasonable doubt any reasonable jury would reach the same result absent the error, and where the untainted evidence is so overwhelming it necessarily leads to a finding of guilt." State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996). Any error found not harmless under the lower non-constitutional standard would necessarily be found not harmless under the constitutional standard.
We believe that R.M.'s father's statements that his son did not display any indication of untruthfulness bolstered the testimony of the State's key witness in a case that hinged on credibility. The court clearly used his credibility assessment to reach the ultimate conclusion that R.M.'s version of the events reflected the true nature of the incident. In this credibility contest, there is a reasonable probability that the opinion testimony, essentially confirming the truthfulness of the victim's story, materially affected the outcome of the trial. We reverse.