Carson v. Commonwealth

• Decision Date: 29 April 2021
• Docket Number: 2019-SC-0585-MR
• Citation: 621 S.W.3d 443
• Parties: Robert CARSON Jr., Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

621 S.W.3d 443

Robert CARSON Jr., Appellant

v.COMMONWEALTH of Kentucky, Appellee

2019-SC-0585-MR

Supreme Court of Kentucky.

APRIL 29, 2021

COUNSEL FOR APPELLANT: Aaron Reed Baker, Assistant Public Advocate, Frankfort, KY.

COUNSEL FOR APPELLEE: Daniel Cameron, Attorney General of Kentucky, Mark D. Barry, Assistant Attorney General, Frankfort, KY.

OPINION OF THE COURT BY JUSTICE LAMBERT

Robert Carson Jr. appeals from a judgment of the Kenton Circuit Court convicting him of four counts of first-degree sexual abuse; three counts of first-degree sodomy; and three counts of incest. Carson contends that the trial court erred by 1) denying his motion to suppress his statements to police; 2) permitting the investigating detective to give an improper lay opinion as to Carson's veracity; and 3) allowing the prosecutor to provide unsworn testimony through her questioning. After review, we conclude that the trial court properly denied Carson's motion to suppress. However, the trial court erred by permitting the investigating detective to provide lay opinion testimony regarding his conclusion that Carson was lying during his interview derived from behavioral analysis. This error warrants reversal, and we remand the case for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

In December 2013, Stephen,¹ then ten years old, disclosed to a family member that Carson subjected him to sexual contact on multiple occasions. Stephen later told a social worker at the hospital that Carson touched his butt and genitals and kissed him. Following this hospital visit, relatives of Stephen reported these incidents to Covington Police. Police referred Stephen to the Children's Advocacy Center (CAC). During his CAC interview, Stephen claimed that Carson had touched his genitals and butt on several occasions.

Detective Justin Bradbury observed the CAC interview and began investigating the allegations. On January 24, 2014, Det. Bradbury interviewed Carson. Throughout the four-hour interview, Det. Bradbury employed the "Reid Technique," a multi-phase interrogation technique in which an investigating officer analyzes the suspect's behavior, looking for signs of deception, and then engages in a confrontational interrogation if they believe they spot such indicators. Carson ultimately admitted to a series of sexual acts, including the touching of genitals, masturbation, and oral sex.

Carson was indicted of four counts of first-degree sexual abuse; three counts of first-degree sodomy; and three counts of incest. Prior to trial, Carson moved to suppress his statements made to Det. Bradbury during his interrogation. He argued that Det. Bradbury violated his Fifth Amendment right to remain silent. The trial court denied the motion, concluding that Carson failed to clearly invoke his right.

Following a lengthy pre-trial period, the case proceeded to trial in June of 2019. The jury found Carson guilty on all counts. The jury recommended a sentence of twenty years on each count of sodomy; twenty years on each count of incest; and five years on each count of first-degree sexual abuse. The sentences were recommended to run concurrently for a total of twenty years’ imprisonment. The trial court sentenced him accordingly, and this appeal followed. Additional facts relevant to Carson's claims of error are set forth below.

II. ANALYSIS

A. The admission of Det. Bradbury's opinion testimony concerning Carson's verbal and non-verbal cues of deception was reversible error.

Carson first asserts that the trial court erred in allowing Det. Bradbury to testify as to his ability to detect deception through verbal and non-verbal cues. Carson contends that Det. Bradbury's testimony invaded the province of the jury when he testified that Carson exhibited behaviors consistent with deception during his interrogation. We review a trial court's rulings on evidentiary issues for an abuse of discretion.² The test for abuse of discretion is whether the court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.³

Pursuant to KRE ⁴ 701, a lay witness may provide opinion testimony only if their opinion is (1) based on their perception; (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact at issue; and (3) not based on scientific, technical, or specialized knowledge. More often than not this rule permits shorthand testimony regarding certain inferences the witness drew from behavior they observed.⁵ As a result, Kentucky law permits witnesses to give opinion testimony regarding a person's apparent intoxication;⁶ the apparent age of a person;⁷ and a person's apparent mental or emotional state.⁸ The principle connecting each of these cases is that a witness may testify as to a conclusion they drew about a person's behavior from their personal observation of certain facts.

Further, "[t]he degree to which a witness may give an opinion, of course, is predicated in part upon whether and the extent to which the witness has sufficient life experiences that would permit making a judgment as to the matter involved."⁹ Consequentially, law enforcement officers may provide lay opinion testimony as to their experience-based interpretations of certain facts which they personally observed.¹⁰ Pursuant to this rule, this Court has permitted law enforcement officers to testify as to their interpretation of drug-sniffing dogs behavior;¹¹ that a juice bottle appeared to be a homemade silencer;¹² and that a suspect appeared intoxicated due to his performance on a field sobriety test.¹³ But when the subject matter of the officer's opinion is either not based on personal knowledge or based on specialized knowledge, the trial court must first qualify the officer as an expert.¹⁴

One area in which neither lay nor expert testimony is appropriate is the veracity of a witness.¹⁵ Just as we prohibit the introduction of mechanical polygraphic evidence, we similarly restrict the ability of a witness to act as a human lie detector on the stand.¹⁶ As such, "neither expert nor lay witness may testify that another witness or a defendant is lying or faking. That determination is within the exclusive province of the jury."¹⁷

Here, the challenged testimony centered on Det. Bradbury's use of the Reid Technique during his interrogation of Carson. When introducing the video recording of Carson's interrogation, the Commonwealth elicited testimony concerning the Reid Technique:¹⁸

Commonwealth (CW) : You told us earlier that you underwent specialized training in conducting interviews or interrogations. Can you tell us more about the trainings that you have completed?

Det. Bradberry (DB) : I attended a one-week course at the Department of Criminal and Justice Training in Richmond, Kentucky, and I attended a four-day course through the Jenny and John E. Reid Institute on interview and interrogation, as well as advanced interview and interrogation.

CW : What is the John E. Reid technique or institute?

DB : It is a nationally accepted technique. It is used by many, many police departments across the United States because of its high standard.

Det. Bradbury proceeded to describe the mechanics of the Reid Technique. A Reid interview begins with a series of questions intended to provoke certain physical or verbal responses. Based on the investigating officer's analysis of those responses, he or she will determine whether to proceed with questioning. Det. Bradbury described the behavioral analysis portion as follows:

CW : You said the first phase, the behavioral analysis, you look at the body language and verbal cues, and you ask questions to provoke a response. Are your questions designed to provoke a response of guilt?

DB : No.

CW : What do you mean by that?

DB : Its designed to provoke a response. We are looking for body language, verbal cues. We are look for things that indicate truthfulness or deception. That is what we are looking for.

As Det. Bradbury continued to describe how an interview is initiated, Carson objected. He argued that the Commonwealth had not certified Det. Bradbury as an expert in behavioral analysis. The Commonwealth responded that Det. Bradbury was being offered as a lay witness and the questioning concerned his training. The trial court overruled the objection but stated "[Det. Bradbury] can testify as to how he was trained and what he was trained to do and how he implemented that training ... but he cannot come to conclusions on truth or honesty."

Yet, immediately thereafter, Det. Bradbury testified he was trained on his ability to determine a suspect's truthfulness:

CW : Does the Reid technique train you in what verbal or nonverbal cues to look for to identify whether a person is being truthful or being deceptive?

DB : It does.

CW : Ok, does your analysis of those cues affect how you proceed with your interview?

DB : It does.

CW : How so?

DB : If we see indications of deception, more specifically if we see groupings or clusters or multiple indicators of deception that may drive our decision to proceed into an interrogation.

CW: What if you don't see a cluster of cues indicating deception?

DB : I call that the drop back and punt phase. So, at that point we have options. We can stop the interview at that point, we can then pursue other avenues of investigation, follow up with leads, or search for other possible suspects.

Following this testimony, the court sua sponte called a bench conference. The court expressed concern that Det. Bradbury was purporting to be a "verbal lie detector" through his testimony. After a brief discussion the court admonished the jury as follows:

Ladies and gentlemen, you've been hearing testimony about this interrogation technique called the "Reid Technique." You need to be advised that the jury is the determiner of credibility and truth, okay? You are the fact-finding body, so you do not consider that technique as being a determinative factor as to whether anything is being truthful or not truthful. Okay? Alright.

But the...