State v. Demery

• Decision Date: 13 September 2001
• Docket Number: No. 69693-4.,69693-4.
• Citation: 30 P.3d 1278,144 Wash.2d 753
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Kenneth L. DEMERY, Respondent.

30 P.3d 1278

144 Wash.2d 753

STATE of Washington, Petitioner, v. Kenneth L. DEMERY, Respondent.

No. 69693-4.

Supreme Court of Washington, En Banc.

Argued February 27, 2001.

Decided September 13, 2001.

Gerald Horne, Pierce County Prosecutor, Michael Sommerfeld, Deputy County Prosecutor, Barbara L. Corey-Boulet, Deputy County Prosecutor, for Petitioner.

Department of Assigned Counsel, Dino G. Sepe, Patricia Anne Pethick, Tacoma, for Respondent.

OWENS, J.

In this appeal, we must decide whether statements made by police officers during a taped interview accusing the suspect of lying constitute impermissible opinion testimony. The police commonly use this interview technique to determine whether a defendant will change her story during an interview. The defendant was charged with one count of robbery and three counts of kidnapping. The trial court denied the defendant's motion to redact the officers' statements on grounds that the statements were necessary to provide context to the defendant's responses. The Court of Appeals reversed, concluding that the officers' statements in the tape constituted impermissible opinion testimony regarding the veracity of the defendant. Because we conclude that such statements are not opinion testimony, we reverse the decision of the Court of Appeals and affirm the defendant's conviction.

FACTS

On May 4, 1998, Thomas Kelly and his two children were waiting at a bus stop in Lakewood when the defendant approached them. The defendant, Kenneth Demery, confronted Kelly and demanded that Kelly repay money that he had previously borrowed and that he pay an additional $1,000 as interest. When Demery brandished a gun, Kelly gave him two $50 bills and suggested that they should go to a bank so that Kelly could withdraw additional money. Kelly was afraid that Demery would harm his children, so he planned to contact security at the bank in order to defuse the situation.

Demery accompanied Kelly and his children to the Key Bank at the Lakewood Mall. Kelly suggested that Demery should leave his gun outside, so Demery placed the gun by a recycling bin in an alley near the bank. While Demery remained in the lobby with the children, Kelly approached a teller and informed her that he had been brought into the bank at gunpoint and that the person with the gun had demanded money from him. The bank alerted mall security, and when the guard arrived at the bank, he approached Demery and asked him to wait outside. The police were also summoned to the scene.

After the officers arrived at the bank, one officer told Demery to remain on the premises while he investigated the situation. However, when Kelly and the other officer went to retrieve the gun from the recycling bin, Demery ran away from the officers. The officers gave chase, and Demery was arrested. The officers recovered both the gun and the two $50 bills that Kelly had given to Demery.

After he was taken to the police station, Demery agreed to give a taped statement to Detective Rick Adamson. Detective Adamson read Miranda¹ warnings to Demery on the tape, and Detective Adamson and Detective Sergeant Andy Estes questioned him regarding the events leading up to his arrest. During the course of the interview, the detectives made statements suggesting that Demery was lying.² These statements were not redacted when the tape and a transcript were admitted during the defendant's trial.

Demery was charged with one count of first degree robbery and three counts of first degree kidnapping. In addition, a weapons enhancement was added to each charge. Prior to trial, the court held a CrR 3.5 hearing and determined that the defendant's statements made in the taped interview were voluntary and that the tape was admissible at trial. At trial, the judge, over objection, admitted the tape without redacting the statements made by the officers that suggested that Demery was lying during the interview. The trial court concluded that the officers' statements provided context for Demery's statements and that the statements were part of a commonly used police interview technique.

The tape was played before the jury during Detective Adamson's direct testimony. During cross-examination, Detective Adamson was questioned regarding his statement in the taped interview that the gun would have Demery's fingerprints on it. The detective admitted that he did not actually know at that time whether Demery's fingerprints were in fact on the gun.³ In addition, Adamson stated that he had made this representation regarding the fingerprints to see if Demery would change his story. Finally, the detective explained that police lie to suspects as part of a commonly used interview tactic that is designed to see whether a suspect will change her story during the course of an interview.

Demery was convicted of first degree robbery and of one count of first degree kidnapping; however, Demery was acquitted of the charges of kidnapping in relation to the children. Demery appealed, contending that the trial court erred in denying his motion to redact the officers' statements from the tape. The Court of Appeals agreed that the trial court erred in admitting the unredacted tapes on grounds that the officers' statements constituted impermissible opinion testimony regarding the veracity of the defendant. The Court of Appeals concluded that the error was not harmless, so the court reversed the trial court's decision and remanded the case. The State of Washington sought review, which this Court granted.

ISSUE

Do statements made by police officers in a taped interview accusing the defendant of lying constitute impermissible opinion testimony regarding the veracity of the defendant when such statements are played before the jury during trial?

ANALYSIS

The trial court has wide discretion to determine the admissibility of evidence, and the trial court's decision whether to admit or exclude evidence will not be reversed on appeal unless the appellant can establish that the trial court abused its discretion. See State v. Rivers, 129 Wash.2d 697, 709-10, 921 P.2d 495 (1996). A trial court abuses its discretion only if no reasonable person would adopt the view espoused by the trial court. State v. Sutherland, 3 Wash.App. 20, 21, 472 P.2d 584 (1970). Where reasonable persons could take differing views regarding the propriety of the trial court's actions, the trial court has not abused its discretion. Id. at 22, 472 P.2d 584.

The State contends that the trial court did not abuse its discretion when the trial court admitted the police officers' statements asserting that the defendant was lying during the taped interview. Specifically, the State argues that the statements did not constitute impermissible opinion testimony regarding the credibility of a witness; rather, the State argues that these statements were made as part of a commonly used police interview technique to determine whether a suspect will change her story. Furthermore, the State emphasizes that the statements made by the police officers were necessary to give context to the responses offered by the defendant.

Generally, no witness may offer testimony in the form of an opinion regarding the guilt or veracity of the defendant; such testimony is unfairly prejudicial to the defendant "because it `invad[es] the exclusive province of the [jury].'" City of Seattle v. Heatley, 70 Wash.App. 573, 577, 854 P.2d 658 (1993) (citing State v. Black, 109 Wash.2d 336, 348, 745 P.2d 12 (1987)); see also ER 608 cmt. (noting that "[t]he drafters of the Washington rule felt that impeachment by use of opinion is too prejudicial and on a practical level is not easily subject to testing by cross examination or contradiction"). In determining whether statements are in fact impermissible opinion testimony, the court will generally consider the circumstances of the case, including the following factors:

(1) "the type of witness involved,"

(2) "the specific nature of the testimony,"

(3) "the nature of the charges,"

(4) "the type of defense, and"

(5) "the other evidence before the trier of fact."

Heatley, 70 Wash.App. at 579, 854 P.2d 658. Admitting impermissible opinion testimony regarding the defendant's guilt may be reversible error because admitting such evidence "violates [the defendant's] constitutional right to a jury trial, including the independent determination of the facts by the jury." State v. Carlin, 40 Wash.App. 698, 701, 700 P.2d 323 (1985), overruled on other grounds by City of Seattle v. Heatley, 70 Wash.App. 573, 854 P.2d 658 (1993); see also Dubria v. Smith, 224 F.3d 995, 1001-02 (9th Cir.2000) (suggesting that the admission of taped interviews containing police statements challenging the defendant's veracity may also violate the defendant's right to due process), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001).

One major issue involved in this case is whether statements made by police officers during a taped interview fall within the purview of "opinion testimony." "Testimony" refers to evidence that is given at trial while the "witness" is under oath. BLACK'S LAW DICTIONARY 1485 (7th ed.1999). Similarly, a "witness" is a person who provides evidence under oath or affirmation. Id. at 1596, 121 S.Ct. 1089. Moreover, "opinion testimony" can be defined as "[t]estimony based on one's belief or idea rather than on direct knowledge of facts at issue." Id. at 1486, 121 S.Ct. 1089.

In contrast, the officers' statements were not offered during live testimony at trial. Rather, the officers' statements in the taped interview were part of a commonly used police interview technique, designed to see whether a defendant will change her story during the course of an interrogation. Because the officers' statements were not made under oath at trial,⁴ we conclude that they do not fall within the definition of opinion testimony for purposes of the evidentiary prohibition. This position is consistent with other cases in...