Wednesday, May 6, 2009
After a man is shot, his shooter is charged with attempted murder and claims that he was acting in self-defense. The prosecution responds by calling a detective, who is not qualified as an expert witness in the area of crime-scene investigation or reconstruction, to testify as a lay witness that the shooting could not have happened the way that the defendant claimed it did. The per curiam opinion finds that this testimony was not impermissible "ultimate issue" testimony. A dissenting (in part) judge counters that the detective's conclusion was a "meaningless assertion." My conclusion: Both sides missed the key issue in the case.
The case was Lewis v. State, 2009 WL 1164966 (Ala.Crim.App. 2009), recently decided by the Court of Criminal Appeals of Alabama. The man charged was Joseph Lewis, who
gave several statements to police concerning the events leading to the shooting. Lewis first said that he and [Leon] Dunklin were "tussling," that Dunklin had a gun, that Lewis grabbed it, and that the gun went off, hitting Dunklin. He then said that Dunklin came out of a room with a gun, that he grabbed it, and that the gun went off. There were also discrepancies in Lewis's statements to police concerning where the shooting occurred. Lewis first said that Dunklin came into Lewis's room with a gun. Next Lewis said that he was in the kitchen when Dunklin came into that room with a gun. Finally, Lewis said that he was in Edwards's room when Dunklin came into that room waving a gun.
Lewis made these statements to Detective Mack Hardeman, and at trial, the prosecution called Hardeman as a lay witness and asked him questions such as:
Based on the facts surrounding the statements [Lewis] gave you, based on your investigation and the physical evidence recovered at the scene, physical evidence seen at the scene, based on the story he told you about where they were situated at the time of the shooting, and based on your experience as a homicide detective, taken as a whole, did you make a determination as to whether you believe the events occurred as [Lewis] claimed they did?
After the judge overruled several objections by defense counsel, Hardeman answered, "The question was, in my opinion, could the events have happened the way he said they did? No."
After Lewis was convicted, he appealed, claiming that Hardman's testimony was improperly received. But the Court of Criminal Appeals of Alabama rejected his argument in a per curiam opinion. On the one hand, the opinion noted that, unlike Federal Rule of Evidence 704(a), Alabama Rule of Evidence 704 does not allow for the admission of opinion or inference testimony that embraces an ultimate issue to be decided by the trier of fact. Nonetheless, the court noted that "[c]ase law in Alabama, however, may be categorized as having drifted away from a literal application of the traditional 'ultimate issue rule" and thus found that Hardeman's testimony was thus not problematic on this ground.
Meanwhile, Judge Welch dissented in part, concluding that
The opinion elicited by the prosecution's question was not testimony regarding the facts; rather, the objectionable question and testimony followed the detective's complete exposition of the pertinent facts. The elicited testimony was purely a meaningless assertion that amounted only to “choosing up sides” and was improper.
I side with Judge Welch, but I don't think that he even needed to reach that issue. Instead, it seems clear to me that Hardeman's testimony was testimony concerning a matter about a subject jurors are not familiar with, meaning that it required expert testimony. Now, readers of this blog know that some courts have been lenient in allowing law enforcement agents to testify as lay witness about borderline subjects, but it seems crystal clear to me that only an expert could have given an answer to he question(s) posed by the prosecutor.