City of Seattle v. Heatley

• Decision Date: 12 July 1993
• Docket Number: No. 31262-6-I,31262-6-I
• Citation: 70 Wn.App. 573,854 P.2d 658
• Court: Washington Court of Appeals
• Parties: CITY OF SEATTLE, Respondent, v. Robert C. HEATLEY, Petitioner. Division 1

Page 573

70 Wn.App. 573

854 P.2d 658

CITY OF SEATTLE, Respondent, v. Robert C. HEATLEY, Petitioner.

No. 31262-6-I.

Court of Appeals of Washington,

Division 1.

July 12, 1993.

Washington Appellate Defender, Constance M. Krontz, Seattle, for petitioner.

Mark H. Sidran, City Atty., and Jeanne S. Innis, Asst. City Atty., Seattle, for respondent.

AGID, Judge.

Petitioner Robert Heatley seeks discretionary review of a RALJ decision affirming his convictions in Seattle Municipal Court for driving while intoxicated and negligent driving. A commissioner referred the motion for discretionary review to a panel of judges for determination. Because the issues raised are of public interest, RAP 2.3(d)(3), we grant the motion for discretionary review, accelerate review pursuant to RAP 18.12, and affirm.

Heatley was charged in Seattle Municipal Court with reckless driving and driving while under the influence of intoxicating liquor (DWI). SMC § 11.56.120(A)(1); § 11.56.020. Police Officer Patricia Manning testified that at about 11 p.m. on February 27, 1990, she observed Heatley's car drive through a stop sign at 20-25 m.p.h. and then turn south on 12th Avenue. Manning followed Heatley as he drove 50-55 m.p.h. in a 30-m.p.h. zone. Heatley's car straddled the center line of the two southbound lanes of 12th Avenue. At times, the car would "jerk" into the inside lane and then swerve back over the center line.

After following Heatley for about 11-12 blocks, Manning turned on her flashing lights, and Heatley immediately pulled over to the side of the street. When asked why he was speeding and driving in both lanes, Heatley replied that it was safer to drive in both lanes and that he was trying to keep away from cars parked at the side of the road. According to Manning, Heatley's eyes were watery and bloodshot his speech was "slightly slurred," he had a "strong odor of alcohol on his breath and about him", and he "appeared to be slightly off balance when he walked." Heatley also became hostile and verbally abusive during his encounter with the officer.

Manning called for the DWI unit. Approximately 5 minutes later, Officer Mark Evenson of the DWI squad arrived. Evenson also observed that Heatley's eyes were bloodshot and watery, his face was flushed, his "balance was unsteady" and that he had a "strong odor" of alcohol on his breath. Evenson characterized Heatley's speech as slurred but not incoherent.

At Evenson's request, Heatley agreed to perform a series of field sobriety tests. Heatley was able to recite the complete alphabet and count backwards from 59, albeit with slurred speech. When Heatley performed a balance test in which he stood straight, with his feet together, eyes closed and head held back, Evenson observed that Heatley had a "two inch sway". Heatley then stood straight and raised one leg for 30 seconds. On this test, he had a "very obvious sway," with "a lot of body jerking to try to keep his balance." Heatley was able to touch his nose with the tip of his finger, again with an "obvious sway". On the heel-toe walking test, he was unable to follow instructions exactly and lost his balance several times.

At trial, Officer Evenson estimated that he had conducted field sobriety tests on about 1,500 drivers to determine whether they had consumed sufficient alcohol "to impair their driving to a point where they cannot drive in a safe manner." When asked his opinion of the "defendant's impairment due to his use of alcohol," Evenson replied without objection:

Based on my, his physical appearance and my observations of that and based on all the tests I gave him as a whole, I determined that Mr. Heatley was obviously intoxicated and affected by the alcoholic drink that he'd been, he could not drive a motor vehicle in a safe manner. At that time, I did place Mr. Heatley under arrest for DWI.

After Heatley was arrested and brought to the precinct, he acknowledged that he had consumed two beers and one shot of vodka between 7:30 and 8:45 p.m. Heatley did not testify at trial.

The jury found Heatley guilty on the DWI charge, not guilty of reckless driving, and guilty of the lesser included offense of negligent driving. He appealed to the superior court which affirmed, concluding that Heatley had "waived any error by failing to object to Officer Evenson's testimony either before trial or during his testimony."

Heatley first contends that the trial court erred in admitting Officer Evenson's testimony that he was "obviously intoxicated" and "could not drive a motor vehicle in a safe manner." The primary issue before the jury was whether Heatley was driving a motor vehicle while "under the influence of or affected by the use of intoxicating liquor". Instruction 10. The jury was instructed that a person is "under the influence of or affected by" alcohol when "his ability to operate his automobile is lessened in any appreciable degree." Instruction 11. Heatley argues that, because Officer Evenson's opinion encompassed what was essentially the only disputed issue, it was an improper opinion that he was guilty of the DWI charge. We disagree.

The 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." State v. Black, 109 Wash.2d 336, 348, 745 P.2d 12 (1987); see also State v. Garrison, 71 Wash.2d 312, 427 P.2d 1012 (1967). Such testimony has been characterized as unfairly prejudicial because it "invad[es] the exclusive province of the finder of fact." Black, 109 Wash.2d at 348, 745 P.2d 12. Improper opinions on guilt usually involve an assertion pertaining directly to the defendant. See, e.g., Garrison, 71 Wash.2d at 312, 427 P.2d 1012; cf. State v. Carlin, 40 Wash.App. 698, 700, 700 P.2d 323 (1985) (police officer testified that tracking dog followed defendant's "fresh guilt scent"). Because issues of credibility are reserved strictly for the trier of fact, testimony regarding the credibility of a key witness may also be improper. See, e.g., State v Alexander, 64 Wash.App. 147, 154, 822 P.2d 1250 (1992) (by stating his belief that child was not lying about sexual abuse, expert "effectively testified" that defendant was guilty as charged); see also Black, 109 Wash.2d at 349, 745 P.2d 12 (in rape case, expert testimony that victim suffered from rape trauma syndrome constituted "in essence" a statement that defendant was guilty where defense was consent).

However, testimony 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. In State v. Sanders, 66 Wash.App. 380, 832 P.2d 1326 (1992), a prosecution for possession of cocaine with intent to deliver, a police officer opined that the lack of drug user paraphernalia in the defendant's home indicated the occupants did not use drugs regularly. This court rejected the claim that the testimony amounted to an opinion on guilt because the officer did not explicitly state an opinion on guilt or credibility, the testimony was based solely on physical evidence and on the officer's experience, and the testimony was not inconsistent with the defendant's testimony. Sanders, 66 Wash.App. at 388-89, 832 P.2d 1326; see also State v. Jones, 59 Wash.App. 744, 801 P.2d 263 (1990), review denied, 116 Wash.2d 1021, 811 P.2d 219 (1991) (in manslaughter case, an expert's opinion based on physical evidence that injuries not accidental did not constitute inadmissible opinion on guilt).

Heatley correctly asserts that Officer Evenson's testimony here encompassed ultimate factual issues that are resolved by the trier of fact. Under modern rules of evidence, however, an opinion is not improper merely because it involves ultimate factual issues. ER 704 provides that "[t]estimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." ¹ Thus, opinion testimony may not be excluded under ER 704 onthe basis that it encompasses ultimate issues of fact. However, it must be "otherwise admissible" and is therefore subject to the requirements of ER 403, ER 701, and ER 702. Jones, 59 Wash.App. at 750 n. 2, 801 P.2d 263; State v. Allen, 50 Wash.App. 412, 417 n. 1, 749 P.2d 702, review denied, 110 Wash.2d 1024 (1988); see also ER 704, Judicial Council Comment; United States v. Boney, 977 F.2d 624 (D.C.Cir.1992). An opinion which lacks proper foundation or is not helpful to the trier of fact is not admissible under ER 701 or 702. An otherwise admissible opinion may be excluded under ER 403 if it is confusing, misleading, or if the danger of unfair prejudice outweighs its probative value.

Whether testimony constitutes an impermissible opinion on guilt or a permissible opinion embracing an "ultimate issue" will generally depend on the specific circumstances of each case, including the type of witness involved, the specific nature of the testimony, the nature of the charges, the type of defense, and the other evidence before the trier of fact. See generally Sanders, 66 Wash.App. at 380, 832 P.2d 1326. The trial court must be accorded broad discretion to determine the admissibility of ultimate issue testimony, Jones, 59 Wash.App. at 751, 801 P.2d 263, and this court has expressly declined to take an expansive view of claims that testimony constitutes an opinion on guilt. See State v. Wilber, 55 Wash.App. 294, 298, 777 P.2d 36 (1989) (analyzing officers' testimony that "inferentially" constituted opinion on guilt as expert testimony under ER 702).

Officer Evenson's testimony contained no direct opinion on Heatley's guilt or on the credibility of a witness. The fact that an opinion encompassing ultimate factual issues supports the conclusion that the defendant is guilty does not make the testimony an improper opinion on guilt. "[I]t is the very fact that such opinions...