Can a witness give an opinion about a defendant’s guilt?

Can a witness offer an opinion as to a defendant’s guilt?

Collins (Lesean) vs. State (Nev. Supreme Ct. – Nov. 22, 2017)

A jury convicted Collins of robbery and first-degree murder, for which he was sentenced to life in prison without the possibility of parole. On appeal, Collins argued, among other issues, that the testimony of the lead investigator in the case violated the rule against a witness giving an opinion on a defendant’s guilt.

Four days after Payton went missing, two ATV riders discovered her decomposed body in a ravine. Drag marks led through the dirt and brush to the body. No purse, wallet, cell phone, or means of identification or transportation were found. Payton’s shirt was pulled up over her head, and she was shoeless. Three of her acrylic fingernails had broken off – two were found at the scene – and one of her pockets was inside out. Some nearby rocks had blood on them.

Payton’s sister identified her body. Although identifiable, the body had decomposed too much for the coroner to definitively state the cause of death. The autopsy established that before she died, Payton sustained three blows to her head from a rod-like instrument. While the blows did not fracture Payton’s skull, they were strong enough to render her unconscious. The coroner deemed Payton’s death consistent with asphyxiation or being locked in the trunk of a car in southern Nevada’s late summer heat.

Circumstantial evidence tied Collins to Payton and to her robbery and death. Collins and Payton knew one another. Payton occasionally dealt drugs and used cell phones and rental cars to conduct business. Cell phone records showed that Collins and Payton exchanged numerous calls and texts the day she disappeared. Payton’s phone received its last call at 3:38 p.m., then shut off. Earlier, both Collins’s and Payton’s phones sent signals through a cell phone tower close to Collins’s girlfriend’s house, where Collins often stayed during the day. That night, Collins’s cell phone signals placed him in the remote area where Payton’s body was found.

Collins’s girlfriend testified that Collins picked her up from work the day Payton disappeared. He had jewelry with him he did not have before, including a necklace he later asked his girlfriend to pawn and a Rolex bracelet (at trial the State proved both pieces of jewelry had been Payton’s). When they got home, the girlfriend found a gold Hyundai parked in the garage. The carpet in the house was soiled and something had spattered on the laundry room walls. Collins told his girlfriend that Payton rented the car for him and that he had spilled oil on the carpet, which he tried to clean with bleach. That night, Collins left in the Hyundai, returned, washed the Hyundai, and fell asleep outside in the car. At some point, the North Las Vegas police came by to check on the car and its occupant. Collins sped off, eluding the police. Collins’s girlfriend found a long acrylic fingernail in her home, which Collins admitted to her was Payton’s.

Collins was arrested for, charged with, and convicted of robbery and first-degree murder. Collins appealed.

A witness may not give a direct opinion on the defendant’s guilt or innocence in a criminal case. See Cordova v. State, 116 Nev. 664, 669, 6 P.3d 481, 485 (2000). The lead investigator in this case was Detective Mogg, who testified that his investigation into Payton’s death led him to arrest Collins for her murder. On appeal, Collins argued that this testimony violated the rule against a witness giving an opinion on the defendant’s guilt. A district court’s decision to admit or exclude evidence is reviewed on appeal under an abuse-of-discretion standard. Ramet v. State, 125 Nev. 195, 198, 209 P.3d 268, 269 (2009).

Collins argued that the district court abused its discretion in allowing Mogg to testify that his investigation led to Collins’s arrest. The Supreme Court of Nevada explained that as suggested by the extra-jurisdictional case law Collins cited, the rule is that a witness “may not give a direct opinion on the defendant’s guilt” United States v. Kinsey, 843 F.2d 383, 388 (9th Cir. 1988). The Court noted that this does not mean that a witness may not give testimony from which an inference of guilt – even, an inference that the witness is of the opinion the defendant is guilty – may be drawn. See Ogden v. State, 34 P.3d 271, 277 (Wyo. 2001) (“Testimony that is otherwise admissible will not be excluded unless it constitutes an actual conclusion about the guilt or innocence of the accused party. An interpretation of the evidence by a witness, even though that interpretation may be important in establishing an element of the crime and thus leading to the inference of guilt, is not in the same category as an actual conclusional statement on the guilt or innocence of the accused party.”).

The Court found that in one of the cases on which Collins relied, State v. Steadman, 855 P.2d 919, 922 (Kan. 1993), the detective testified pointblank: “In my opinion [the defendant] killed [the victim].” Similarly, in State v. Quaale, 340 P.3d 213, 215 (Wash. 2014), another case on which Collins relied, the police officer was asked in a DUI case if he had an opinion based on the eye-movement test he administered and his “training and experience [as to] whether or not [the defendant’s] ability to operate a motor vehicle was impaired?” to which the officer answered, “Absolutely. There was no doubt he was impaired.” And in Bennett v. State, 794 P.2d 879, 882-83 (Wyo. 1990), another of Collins’s cases, the detective “told the jury that in his opinion [the defendant] was a drug dealer because [the defendant] committed the three charged drug transactions.”

The Court explained that the problem in each of these cases was not that the police officers testified to what they learned through investigation or what they did based on what they learned. It lay in the officer directly declaring to the jury that “in [his] opinion, the defendant was guilty of the crime.” Steadman, 855 P.2d at 924. See Bennett, 794 P.2d at 883 (“It is difficult to see how jurors could have believed [the detective’s direct statement] was anything but an opinion concerning the defendant’s guilt.”); Quaale, 340 P.3d at 217 (“Impermissible opinion testimony regarding the defendant’s guilt may be reversible error because such evidence violates the defendant’s constitutional right to a jury trial, which includes the independent determination of the facts by the jury””). While modern law permits opinion testimony on ultimate issues, NRS 50.295; see Federal Rule of Evidence 704, it deems a direct opinion on guilt in a criminal case inadmissible because it is “of no assistance to the trier of fact . . . [who is] as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.” People v.  Vang, 262 P.3d 581, 587 (Cal. 2011); Ogden, 34 P.3d at 277 (“Testimony that is otherwise admissible will not be excluded unless it constitutes an actual conclusion about the guilt or innocence of the accused party.”); cf. Townsend v. State, 103 Nev. 113, 118, 734 P.2d 705, 708 (1987) (upholding admission of expert testimony that a child had suffered sexual abuse, but finding an abuse of discretion in allowing the expert to give an opinion as to the identity of the abuser, which went beyond the witness’s expertise and into an area committed to jury determination).

The Court noted that Mogg’s testimony that he arrested Collins based on the facts he learned as the lead investigator into Payton’s death stopped there. He did not offer or state a direct opinion on Collins’s guilt. A juror might infer from Collins’s arrest that Mogg believed he had enough evidence for Collins to be charged. See Gonzales v. Thaler, 643 F.3d 425, 431 (5th Cir. 2011) (“That the arresting officer thought he had his man is implicit in the prosecution.”). But, the Court believed that did not amount to an opinion, direct or implied, that the jury should find Collins guilty – a determination that, as the jury was instructed, requires proof beyond a reasonable doubt. See Commonwealth v. Luciano, 944 N.E.2d 196, 202 (Mass. App. Ct. 2011) (rejecting argument for reversal based on investigating officer’s testimony that he determined he had probable cause to arrest the defendant: “in view of the judge’s thorough instructions as to the jury’s function, the presumption of innocence, and the Commonwealth’s obligation to prove the defendants’ guilt beyond a reasonable doubt, we are confident that the jury would not have understood the officer’s testimony that, at the time, he believed that the lesser probable cause standard [to arrest] had been met, as supplanting their responsibility as fact finders”).

The Court explained that course-of-investigation testimony does not give carte blanche to the introduction of unconfronted hearsay, see United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004), or evidence concerning matters irrelevant to guilt or innocence, see Leonard v. State, 117 Nev. 53, 74 n.14, 17 P.3d 397, 410 n.14 (2001). The Court believed that Detective Mogg’s testimony did not cross either line. For the most part, Mogg’s course-of-investigation testimony came after that of the witnesses whose interviews he described; to the extent he alluded to facts not yet in evidence, such evidence later came in. See also Clark County Sheriff a Blasko, 98 Nev. 327, 330 n.2, 647 P.2d 371, 373 n.2 (1982) (testimony explaining the reasons for police surveillance is not hearsay, because not offered for the truth of the matter asserted). The Court further noted that the course-of-investigation testimony had relevance, since it rebutted Collins’s assertion that the police did not adequately investigate the crime or other potential suspects, including Payton’s boyfriend. Luciano, 944 N.E.2d at 202 (rejecting argument that the arresting officer’s course-of-investigation testimony “was an impermissible comment on the defendants’ guilt; it was an explanation of the officer’s actions, elicited to counteract the defendants’ claim from the inception of the trial that the police investigation was inadequate and misdirected”); see United States v. Holmes, 620 F.3d 836, 841 (8th Cir. 2010) (holding course-of-investigation evidence admissible to explain a police investigation “when the propriety of the investigation is at issue in the trial”). Thus, the Court found that the district court did not abuse its discretion in allowing Mogg to testify that his investigation led to Collins’s arrest.

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