EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, October 22, 2021

Court of Appeals of North Carolina Finds Rule 701 Violation But Upholds Convictions

Similar to its federal counterpart, North Carolina Rule of Evidence 701 provides that

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

So, under Rule 701, can a detective testify that he found the defendant's alleged accomplice to be credible when she implicated herself and the defendant in a crime? That was the question addressed by the Court of Appeals of North Carolina in its recent opinion in State v. Best, 2021 WL 4859815 (N.C.App. 2021).

In Best, Rakeem Best was charged with various crimes after "Jejuan Taylor was killed after being shot twice during an attempted armed robbery at Duke Manor Apartments in Durham, North Carolina." 

[Hope] Farley gave an interview with the lead detective assigned to the case, Investigator Sean Pate (“Pate”). She confessed to her involvement and named the three others involved. Two weeks after the robbery, Farley was presented with a photo array seeking to identify [a man named] King. Farley did not make an identification. About a year later, Farley was presented with another photo array, at which time she identified Defendant as “Keem that was involved in the murder.”

At trial, Pate testified as follows.

State: How, why were you using a different technique with Hope than you were with Rakeem Best?
 
Pate: Because Hope was answering the questions, which I felt was truthful at the time.
 
State: So these witnesses were giving, well, you talked about that. Hope was implicating herself, and you talked about that even in the interview to Rakeem Best?
 
Pate: Yes.
 
State: And so you said that was why you didn't want to push her because she was already implicating herself and you wanted to let her just keep digging that hole deeper.
 
Pate: Absolutely.
 
State: Okay. But Rakeem Best wasn't doing that?
Pate: Correct.

There was no objection to this testimony, and Best was convicted. After Best was convicted, he appealed, claiming that

that the trial court committed plain error by admitting testimony from the lead detective when he testified on the difference between the interrogations of Farley and Defendant. Specifically, Defendant contend[ed] the trial court committed plain error in allowing Investigator Pate to testify as to Farley's credibility during her interrogation. By allowing Investigator Pate to testify as to Farley's truthfulness during her interview, Defendant contend[ed] the State elicited Investigator Pate's personal opinion on the question of Defendant's guilt while simultaneously vouching for Farley's credibility. Defendant argue[d] this error amount[ed] to plain error because Farley's credibility was central to the case against Defendant, and law enforcement testimony has traditionally been afforded deference by jurors.

The court generally agreed, finding that

This Court has held a police officer may not testify that a defendant is guilty....
This Court has repeatedly found error when a witness testifies as to credibility—even when the testimony only implied a defendant was being untruthful....By allowing Investigator Pate to testify “[he] felt [Farley] was truthful at the time,” the trial court allowed a witness to testify to Farley's credibility.
 
Furthermore, Investigator Pate's testimony went beyond stating his opinion regarding Farley's credibility, but also likely established Pate's opinion on Defendant's guilt. By testifying that Farley's confession implicating herself and Defendant appeared truthful, Investigator Pate impliedly testified Defendant was guilty. Investigator Pate stated he was allowing Farley to continue talking to “keep digging [her] hole deeper” and because he felt she was “truthful” during her interrogation. Pate's testimony may have implied Defendant was being untruthful during the interrogation. A jury could reasonably infer that based on Investigator Pate's interview style between Farley and Defendant, Pate believed Defendant was guilty and thus was lying when he would not implicate himself.
Since Investigator Pate's testimony both established Farley's credibility and Pate's opinion on Defendant's guilt, the trial court committed error when it admitted this portion of Investigator Pate's testimony.

That said, the court upheld Best's convictions, concluding that "[t]here is substantial other evidence in the record tending to show Defendant's guilt."

-CM

 
 

https://lawprofessors.typepad.com/evidenceprof/2021/10/similar-to-its-federal-counterpart-north-carolina-rule-of-evidence-701-provides-that-if-the-witness-is-not-testifying-as.html

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