State v. Jamison

• Decision Date: 26 June 1980
• Docket Number: No. 46449,46449
• Citation: 613 P.2d 776,93 Wn.2d 794
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Cleveland Alton JAMISON, Petitioner.

Page 794

93 Wn.2d 794

613 P.2d 776

STATE of Washington, Respondent, v. Cleveland Alton JAMISON, Petitioner.

No. 46449.

Supreme Court of Washington, En Banc.

June 26, 1980.

William N. Goodwin, Tacoma, for petitioner.

Don Herron, Pros. Atty., Joseph D. Mladinov, Deputy Pros. Atty., Tacoma, for respondent.

STAFFORD, Justice.

Defendant Cleveland Jamison appealed his second degree robbery conviction, contending the trial court erred in admitting inculpatory testimony of two witnesses. The Court of Appeals affirmed. We conclude it was error to admit a portion of the testimony, but hold it was not reversible error.

On August 9, 1977, two men robbed an all-night grocery store in Tacoma, Washington. A surveillance camera took photographs of the pair during the course of the robbery. This led the police investigation to focus upon defendant. On September 6, 1977, Tacoma police officers visited Green Hill School, a detention center for juveniles, at Chehalis, Washington. They presented two resident counselors with one of the surveillance photographs. The counselors told the police they "believed the picture was Alton Jamison", who was then, and for a 6-months period had been, a resident at Green Hill. Defendant was arrested and charged with second degree robbery. He initially denied any participation in the incident. After being moved to juvenile detention in Tacoma, however, he was confronted with the surveillance photographs and admitted that he was the person appearing therein and that he and "Moose" had robbed the grocery store.

At trial, an officer of the Tacoma Police Department testified defendant had admitted he was the one appearing in the surveillance photographs and had confessed to committing the robbery. The photographs were admitted in evidence.

The State called as witnesses, Green Hill School counselors, Don Smith and Jane Kaija, who had previously identified defendant from the surveillance photographs. Don Smith testified as follows:

Q. At the time you were shown that photograph by Detective Lane, were you able to identity the person in the photograph?

A. Yes.

Q. And did you tell him who you felt the person in the photograph to be?

A. Yes, I did.

Q. Who was that?

A. I believed the picture was Alton Jamison.

Q. Have you, in the past, had personal contact with Cleveland Alton jamison?

A. Yes, sir.

Q. Over how long a period of time?

A. Well, it's probably been six months that I had him in Spruce Cottage at Green Hill School. . . . He was a resident student at Spruce Cottage at Green Hill School.

Q. I would like to call your attention to the shirt on the figure in the photograph. Do you specifically recognize the shirt?

A. Alton I've seen him with a shirt similar to this. . . . I believe Alton had a shirt similar to this.

Jane Kaija's testimony was almost identical. Defendant made timely objections to the counselors' testimony, and moved for a mistrial after they mentioned Green Hill School. Defendant did not take the stand, and was subsequently found guilty of second degree robbery.

The Court of Appeals affirmed the trial court. This Court granted defendant's petition for review.

Defendant contends the trial court erred by admitting the counselors' testimony identifying him as the person appearing in the surveillance photographs. He asserts their testimony required no special expertise or knowledge and thus amounted to an impermissible opinion on an ultimate fact within the province of the jury, i. e., the identity of the robber. He also asserts the trial court committed error by permitting the counselors to mention his residency at Green Hill.

On the identification issue the Court of Appeals held "(t)he purpose of the evidence was to assist the trier of facts to clarify a matter not entirely within the common knowledge of the jurors." State v. Jamison, 23 Wash.App. 454, 459, 597 P.2d 424, 427 (1979). As to the testimony regarding defendant's residency at Green Hill, the Court of Appeals assumed the jury would understand that being a "resident student" at the school would indicate he had a prior record as a juvenile offender. It noted, however, that the "offending evidence" occurred when the counselors responded to questions concerning the length of time they had known defendant. It was held that the polluting effect, if any, could easily have been mitigated by a request for a cautionary instruction. Since none had been requested, the court held there was no prejudicial error.

Initially it is important to note the nature of the identification testimony. No one asserts the counselors' opinion testimony was based on some expertise that would bring into play the specialized rules governing expert opinions. Church v. West, 75 Wash.2d 502, 452 P.2d 265 (1969); 3 C. Scott, Photographic Evidence § 1525 (1969). Rather, they testified as lay witnesses having close familiarity with defendant, at or near the time of the robbery, which enabled them to make lay identification of defendant from the surveillance photographs. See United States v. Murray, 523 F.2d 489, 491, n. 1 (8th Cir. 1975).

Generally, where witnesses have no special skill, experience, or education concerning the subject matter of their testimony, they "must state facts, and not draw conclusions or give opinions." Randanite Co. v. Smith, 172 Wash. 390, 395, 20 P.2d 33, 35 (1933); State v. Dukich, 131 Wash. 50, 228 P. 1019 (1924); State v. Wigley, 5 Wash.App. 465, 488 P.2d 766 (1971). This rule need not be adhered to, however, "if the subject matter of the testimony cannot be reproduced and described to the jury precisely as it appeared to the (lay) witness . . ." Ulve v. Raymond, 51 Wash.2d 241, 253, 317 P.2d 908, 915 (1957). In such cases, a witness who has had some means of personal observation may relate the basis of his observation and then "state his opinion, conclusion, and impression formed from such facts and circumstances as came under his observation." (Italics deleted.) Ulve v. Raymond, supra at 253, 317 P.2d at 915; Tecklenburg v. Everett Ry., Light & Water Co., 59 Wash. 384, 109 P. 1036 (1910). The controlling principle is whether the opinion evidence will assist the jury in correctly understanding matters that are not within their common experience. State v. Batten, 17 Wash.App. 428, 437, 563 P.2d 1287 (1977).

In the instant case, the Court of Appeals held the opinion testimony was admissible because the opinions were based upon special knowledge of defendant's appearance at or near the time the surveillance photographs were taken. Such knowledge standing alone, however, was insufficient to permit the counselors to express their opinion as to the identity of the person appearing in the surveillance photographs. Although the surveillance photographs were properly admitted, the defendant himself was in the jury's presence. Thus, the jury was able to compare his appearance with the photographs and decide whether the robber pictured therein was the defendant. The counselors' knowledge of defendant's appearance placed them in no better position to make that critical determination. Accordingly, the counselors' opinion testimony was an impermissible invasion of the jury's province.

In reaching this conclusion, however, we do not suggest that opinion testimony of identification based on knowledge of a defendant's appearance at or near the time of taking a surveillance photograph necessarily is inadmissible. Where such knowledge can actually assist the jury in correctly...