State v. Carlin

• Decision Date: 16 November 1965
• Citation: 700 P.2d 323,40 Wn.App. 698
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Darren Ray CARLIN, B.D

Page 698

40 Wn.App. 698

700 P.2d 323

STATE of Washington, Respondent, v. Darren Ray CARLIN, B.D. 11/16/65, Appellant.

No. 14274-7-I.

Court of Appeals of Washington,

Division 1.

May 1, 1985.

Publication Ordered May 24, 1985.

Raymond H. Thoenig, Dori Jones, Washington Appellate Defenders Ass'n, Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., Marion J. Mittet, Deputy, Seattle, for respondent.

SWANSON, Judge.

Darren Ray Carlin (Carlin), a juvenile, appeals the dispositional order finding him guilty of second-degree burglary, alleging that a witness improperly gave an opinion as to the defendant's guilt that invaded the province of the trier of fact.

At about 1:00 a.m. on July 26, 1983, Officer Dennis Bronson saw three white male juveniles walking toward the boxcars at K & L Beverage Company in King County. He observed them removing beer from a boxcar and on his car radio called for assistance. When he identified himself as a police officer and ordered them to halt, two of the youths ran off.

Officer Bruce Vestal, who responded to Officer Bronson's call for assistance, saw two youths about 300 yards from the railroad cars peering around a building toward K & L Beverage Company. When he yelled at them to stop and identified himself as a police officer, they ran away. Officer Officer Terry Jarboe, who responded to Officer Bronson's call for assistance with his police dog, saw three people on the railroad tracks start to run when Officer Bronson yelled at them to stop. Upon command, the dog tracked southwest to a place where several cases of beer were found and then toward some office buildings. The dog ran around the corner of a building, and when Officer Jarboe followed him, he saw the dog standing beside Officer Vestal and the defendant. At trial Officer Jarboe testified that experienced police dogs like his dog tracked by following a guilt or fear scent and that his dog tracked the defendant in this case by following a "fresh guilt scent." The defendant was tried before Commissioner Maurice Epstein, found guilty of second-degree burglary, and sentenced by Commissioner Stephen Gaddis to 30 days' confinement.

                Vestal pursued and subsequently arrested one of the two, identified as the defendant, who had hidden in some bushes.   After Carlin was arrested, the police dog arrived and stood next to the officer and the defendant
                

The issue is whether the police officer's testimony that his police dog located the defendant by tracking a "fresh guilt scent" was an opinion as to guilt whose admission violated the defendant's right to a trial by an impartial fact-finder. The issue may be raised for the first time on appeal since it involves a constitutional claim. RAP 2.5(a)(3); State v. Dictado, 102 Wash.2d 277, 287, 687 P.2d 172 (1984).

The first question is whether the guilt scent testimony's admission was error. Although the general rule is that witnesses are to state facts, not inferences or opinions, State v. Haga, 8 Wash.App. 481, 491, 507 P.2d 159, review denied, 82 Wn.2d 1006 (1973), opinion testimony by lay and expert witnesses is permissible in certain cases, ER 701 and 702. ¹ [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.

Moreover,

ER 704.

However, "[t]estimony, lay or expert, is objectionable if it expresses an opinion on a matter of law or ... 'merely tells the jury what result to reach.' " (Citations omitted.) 5A K.B. Tegland, Wash.Prac., Evidence § 309, at 84 (2d ed. 1982); see Ball v. Smith, 87 Wash.2d 717, 722-23, 556 P.2d 936 (1976); Comment, ER 704. "Personal opinions on the guilt ... of a party are obvious examples" of such improper opinions. 5A K.B. Tegland, supra, § 298, at 58. An opinion as to the defendant's guilt is an improper lay or expert opinion because the determination of the defendant's guilt or innocence is solely a question for the trier of fact. State v. Garrison, 71 Wash.2d 312, 315, 427 P.2d 1012 (1967); State v. Oughton, 26 Wash.App. 74, 77, 612 P.2d 812, rev. denied, 94 Wn.2d 1005 (1980).

The expression of an opinion as to a criminal defendant's guilt violates his constitutional right to a jury trial, including the independent determination of the facts by the jury. See Stepney v. Lopes, 592 F.Supp. 1538, 1547-49 (D.Conn.1984). The federal and state constitutions' guarantee to a criminal defendant of a trial before an impartial jury applies to a trial before a judge. State ex rel. McFerran v. Justice Ct., 32 Wash.2d 544, 549, 202 P.2d 927 (1949), cited in Brister v. Tacoma City Coun., 27 Wash.App. 474, 486, 619 P.2d 982 (1980), rev. denied, 95 Wn.2d 1006 (1981). Thus in a non-jury trial a witness' opinion as to the defendant's guilt violates the defendant's jury trial Here the defendant contends that the police officer's testimony that the police dog tracked the defendant by following a guilt scent violated his constitutional right by intruding upon the fact-finder's function. At trial Officer Terry Jarboe responded to the prosecutor's questions as follows:

right by invading the province of the impartial fact-finder. See State v. Garrison, supra; State ex rel. McFerran, supra; Stepney v. Lopes, supra.

Q Are you familiar with the term, "guilt or fear scent?"

A Yes, I am.

Q What does that mean?

A We found that in experienced police dogs, there is what is called a class [odor]. Dogs are able to distinguish what a person does, whether he's a butcher, baker, candlestick maker, or whatever, by virtue of a class odor. This is imprinted over and above the very individual character smell of one person. We have found that police dogs tend to recognize that a person, after they have been on a street for awhile, is emitting an odor that is very characteristic to the dogs. We call it a class odor of fear, guilt, the prey type of odor. This is ... a police dog that's had experience and has actually caught criminals. That you can take him to the front door of a Denny's Restaurant type of thing where people have been in and out, and the dog can select out to track a criminal from that particular area because this person is producing a class odor that the dog recognizes and has been praised when he finds it.

A Do you know whether or not Kai [the police dog] is able to detect a guilt scent?

A Yes, he is.

Q How do you read Kai when he's detecting a guilt or fear scent?

A The dog becomes very agitated. By reading what I'm talking about is that dogs communicate through body language.... Kai, in particular, when I--my reading of him, when he picks up fear or guilt scent, is that his ears move up, come very close together and move forward, which in a dog shows that he's starting to become very aggressive and dominant.... His tail curls up into a very tight curl. His entire body posture Officer Jarboe's testimony continued:

                becomes very much dominant.   He knows what he's doing, and he's in pursuit of his game
                

Q Do you have an opinion as to whether the track that was followed this occasion resulted from a fresh scent?

A Yes.

Q Stale scent or guilt scent?

A From a fresh guilt scent.

Q Do you have an opinion as to the relationship of the person that the dog stopped at and the track?

A Yes, I do.

Q What is that?

A The person Officer Vestal had was one of the individuals that had run away from him on the railroad tracks.

Officer Jarboe's testimony that the police dog tracked the defendant by following a fresh guilt scent arguably was an improper opinion as to the defendant's guilt. Particularly where such an opinion is expressed by a government official, such as a sheriff or a police officer, the opinion may influence the factfinder and thereby deny the defendant of a fair and...