v. Bobian

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          December 19, 2019

                               

No. 16CA0746, People v. Bobian — Evidence — Opinions and

Expert Testimony — Testimony by Experts

     Where a trial court allowed a police detective witness to offer

undisclosed expert testimony about blood residue and tool

markings evidence, a division of the court of appeals holds that the

error was harmless under the circumstances. The division further

concludes that where the detective served as the prosecution’s

advisory witness and testified about the consistency of the

eyewitnesses’ trial testimony with their statements just after the

charged incident, any error in admitting the testimony did not

amount to prejudicial plain error that would warrant reversal. The

division also rejects claims of prosecutorial misconduct.
         The special concurrence discusses the propriety of allowing a

police detective to testify about the consistency between

eyewitnesses’ statements at a crime scene and their testimony at

trial.
COLORADO COURT OF APPEALS                                         

Court of Appeals No. 16CA0746
Adams County District Court No. 15CR1426
Honorable Katherine R. Delgado, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Edward Bobian,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                   Division VI
                          Opinion by JUDGE TERRY
                              Welling, J., concurs
                          Berger, J., specially concurs

                        Announced December 19, 2019


Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Britta Kruse, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1        Defendant, Michael Edward Bobian, appeals the judgment of

 conviction entered on jury verdicts finding him guilty of attempted

 second degree murder and first degree assault. We affirm.

¶2        We consider and reject Bobian’s arguments that his conviction

 should be overturned because the trial court erred by

            • admitting improper expert testimony about blood residue

               and tool markings; and

            • permitting prosecutorial misconduct.

¶3        The special concurrence discusses the propriety of allowing a

 police detective to testify about the consistency between

 eyewitnesses’ statements at a crime scene and their testimony at

 trial.

                              I.   Background

¶4        The charges stemmed from an altercation during a party at

 Stephanie Torres’s apartment. Lindsey Collins, who had been

 staying with Torres for a few days, called a friend for a ride. The

 friend in turn called Bobian and asked him to pick up Collins from

 Torres’s apartment.

¶5        Bobian and three of his friends entered Torres’s apartment

 unannounced. Annoyed by the presence of strangers in her home,


                                      1
 Torres became belligerent and told them to leave. A fight then

 broke out between Torres and Bobian’s friends. Torres screamed

 for the victim, T.H., who was outside. The events that took place

 next were disputed at trial.

¶6    The victim testified that he ran through the front door to

 Torres’s aid, and Bobian preemptively struck him on the head with

 a hatchet. After a struggle, the victim was able to get control of the

 hatchet from Bobian, and Bobian and his friends then fled the

 apartment.

¶7    Collins took the stand for the defense and gave a different

 account. She testified that when the victim ran into the apartment

 and found Torres being attacked by Bobian’s friends, the victim

 struck Bobian from behind and a second fight broke out. Collins

 testified that the victim continued to attack Bobian, who was

 squatting on the ground. At some point, Collins realized that

 Bobian and the victim were fighting over a hatchet, and that the

 victim appeared injured.

¶8    The jury acquitted Bobian of attempted first degree murder

 but found him guilty of attempted second degree murder and first

 degree assault.


                                   2
                         II.   Expert Testimony

¶9     Bobian contends that the trial court erred by admitting the

  testimony of the State’s lead detective about blood patterns and tool

  markings without qualifying him as an expert. We conclude that

  any error was harmless.

               A.   Standard of Review and Applicable Law

¶ 10   We review a trial court’s evidentiary rulings for an abuse of

  discretion. People v. Stewart, 

 (Colo. 2002). A trial

  court abuses its discretion when its ruling is manifestly arbitrary,

  unreasonable, or unfair, or when it misapplies the law. Rains v.

  Barber, 

. We will reverse only if “there is a

  reasonable probability that [an error] contributed to [the]

  defendant’s conviction by substantially influencing the verdict or

  impairing the fairness of the trial.” People v. Casias, 

.

¶ 11   In determining whether testimony is lay or expert testimony,

  the court must look to the basis for the opinion. Venalonzo v.

  People, 

. If the witness provides testimony that

  could be expected to be based on an ordinary person’s experiences

  or knowledge, then the witness is offering lay testimony. 

 On the


                                    3
  other hand, if the witness provides testimony that could not be

  offered without specialized experiences, knowledge, or training, then

  the witness is offering expert testimony. 

¶ 12   Police officers may testify as lay witnesses based on their

  perceptions, observations, and experiences. People v. Veren, 

 (Colo. App. 2005). But where an officer’s testimony

  is based on specialized training or education, the officer must be

  properly qualified as an expert. 

¶ 13   In People v. Ramos, 

, our supreme court held

  that an ordinary citizen would not be expected to have the

  experience, skills, or knowledge to differentiate reliably between

  cast-off blood and blood transfer.

                          B.   Additional Facts

¶ 14   Witnesses for both the State and the defense testified that they

  saw the victim throw the hatchet at the front door just as it closed

  after Bobian exited. The victim, however, could not recall throwing

  the hatchet.

¶ 15   Lead Detective Frederick Longobricco was the prosecution’s

  advisory witness and was present throughout trial. He testified

  regarding the blood and tool markings he saw on the front door, as


                                       4
  well as the damage to the wall that was allegedly caused during the

  altercation. He had the following exchange with the prosecutor

  about blood patterns:

                Q: [T]here’s actually kind of a description for
                what blood looks like when it’s hit against the
                door like that. What’s that kind of blood
                called?

                A: I have received training in blood pattern
                analysis and depending on how blood strikes
                an object it will tell you —

¶ 16   At that point, defense counsel objected to the testimony as

  expert testimony. After the prosecutor responded that the detective

  was just describing what he had done as a “regular police officer,”

  the court overruled the objection and Detective Longobricco testified

  as follows:

                A: So when blood strikes a surface, how that
                blood reacts to the surface will tell you most
                likely how that . . . blood traveled. So in here
                when you see a close[-]up of it, the blood
                showed patterns of coming down, striking
                down.

                Q: Okay. And is that called cast[-]off?

                A: Yes.

                Q: Also there’s kind of a hole back there by —
                behind the kitchen or behind the table there



                                        5
            [and] you also took note of that as well, didn’t
            you?

            A: Correct. There’s an indentation or a hole in
            the wall, in the drywall. And there appears to
            be blood next to it. The blood next to it
            appears to be a smear of some sort. That
            means that blood was on an object, came in
            contact with another object. It didn’t actually
            travel through the air. We didn’t know why
            that hole in the wall was there. That was one
            of the discussions I had with [another
            officer]. . . .

            ....

            Q: [L]ooking at [exhibit] 27, [i]s this again kind
            of the pattern that you’re talking about here
            with the door?

            A: Correct. This is the slit that we see. We
            believed that was connected to the incident.
            And then the cast[-]off blood pattern as it
            travels down, you can see a thinner tail at the
            top — or a thinner [tail] on one side of it and a
            deeper or more large base on the end. . . .

            ....

            Q: And you’re noting there both this kind of
            pattern of dashes straight down in the line in
            the left that’s seemed to being marked nick
            marks [sic] almost from something hitting it; is
            that right?

            A: Correct. They were consistent with
            something striking . . . the door.

¶ 17   Detective Longobricco described the marks on the door:


                                    6
            A: This is the slit mark or the indentation at
            the top. This became my concern because I
            wanted to know if that was consistent with the
            stories that we were hearing in the interviews.

            Q: And that’s the story that [Torres] said of
            [the victim] hitting the hatchet against the
            door?

            A: Correct. I wanted to look at this and
            document it to see if it was consistent with a
            hatchet strike.

            Q: Did you end up doing that?

            A: Based on just the — my response as a
            police officer, I believed that it was consistent
            due to the width, the depth and the height was
            consistent [sic]. If somebody hit it with a
            sledge hammer . . . .

¶ 18   At this point, defense counsel moved to strike this testimony

  as expert testimony, but the court overruled the objection. The

  detective then testified, “So if somebody hit it with a hammer or

  sledge hammer, it would leave a different type of mark, not a thin

  mark.”

                            C.   Discussion

¶ 19   Bobian contends that Detective Longobricco’s testimony about

  blood patterns and tool markings amounted to improper expert




                                    7
  testimony. Though we agree that it was expert testimony and was

  improperly admitted, we conclude that the error was harmless.

¶ 20   The detective’s reference to the blood evidence as “cast-off”

  required specialized knowledge that an ordinary person would not

  have, and he purported to rely on his training in blood pattern

  analysis. See Ramos, ¶ 9 (stating that an ordinary person without

  the testifying officer’s nineteen years of experience would not have

  been able to provide testimony distinguishing cast-off blood from

  blood transfer). Detective Longobricco’s testimony on this issue was

  therefore expert testimony, and the court erred by admitting his

  opinions about how the blood got onto the surface of the door,

  whether it was “cast-off” blood or a “smear” of blood, and how the

  blood traveled when it hit the surface. See id. at ¶ 10 (a police

  detective’s testimony using technical terms — “spatter” versus

  “cast-off” — in describing blood was improper expert testimony

  requiring specialized knowledge “to ‘assist the trier of fact to

  understand the evidence or determine a fact in issue.’” (quoting

  CRE 702)).

¶ 21   Bobian contends that this error improperly conferred the “aura

  of expertise” on Detective Longobricco’s testimony without requiring


                                     8
  the prosecution to qualify him as an expert witness. According to

  Bobian, this testimony bolstered the prosecution witnesses’ account

  of the incident that Bobian had unexpectedly attacked the victim

  with a hatchet the moment the victim walked through the door. He

  also asserts that the blood on the door could have been used to

  refute the defense theory that the victim was hit in the kitchen,

  where — according to Collins — the altercation occurred.

¶ 22   The error in admitting this testimony was harmless. There

  was no dispute that Bobian struck the victim with the hatchet; the

  only dispute was whether he did so in self-defense. The pattern of

  blood on the door did nothing to answer that question. Even

  Bobian’s witness (Collins) testified that when the fight between the

  victim and Bobian moved closer to the front door, “that’s when we

  see the blood.” So, the presence of blood on the door did not assist

  the jury in determining which party’s version of events — the

  State’s or Bobian’s — was true.

¶ 23   This circumstance distinguishes the case from Ramos

  precisely because the blood patterns in Ramos were critical to how

  the defendant’s blood in that case got on the clothing of the victim.

  The Ramos victim testified that the defendant’s blood got on her


                                    9
  clothing when he punched her, and this contrasted with the

  defendant’s testimony that the blood came from his injured,

  bleeding hand when he waved his hand around. Id. at ¶ 2.

¶ 24   In Ramos, a detective testified that some of the defendant’s

  blood got onto the victim’s clothing from “transfer” (i.e., physical

  contact), and not as “cast-off” blood (i.e., from the defendant waving

  his hand around). Id. at ¶ 3. The detective there “opined that the

  blood on the victim’s hat was the result of physical contact and that

  the bloodied area ‘could be’ roughly the area of a fist.” Id. at ¶ 9.

  The supreme court reversed the conviction because “an ordinary

  citizen . . . would not have been able to provide the same

  conclusions.” Id. Thus, the distinction between “cast-off” and

  “spatter” blood would have made a difference in how the jury

  evaluated whether the defendant in Ramos struck the victim, as the

  prosecution asserted.

¶ 25   Not so here, because it is undisputed that Bobian struck the

  victim with the hatchet. We conclude that the admission of the

  blood pattern testimony was therefore harmless.

¶ 26   Detective Longobricco’s testimony that he looked at the marks

  on the apartment door to see if they matched the witnesses’


                                     10
  statements was also harmless because it did not aid in proving or

  disproving self-defense. Instead, the testimony went only to

  whether the victim at some point hit the apartment door with the

  hatchet — a matter of no consequence to the self-defense issue.

¶ 27   Moreover, the prosecutor did not refer to Detective

  Longobricco’s blood or tool markings testimony in closing

  argument. Based on the circumstances of this case, we conclude

  that any error in admitting this testimony could not have affected

  the outcome of the trial. See Krutsinger v. People, 

 (Colo. 2009) (harmless error found where trial court’s error

  “did not substantially influence the verdict or affect the fairness of

  the trial proceedings”).

                      III.   Prosecutorial Misconduct

¶ 28   Bobian next contends that multiple incidents of prosecutorial

  misconduct warrant reversal. We disagree.

              A.    Standard of Review and Applicable Law

¶ 29   In evaluating a claim of prosecutorial misconduct, we first

  determine whether the conduct in question was improper based on

  the totality of the circumstances and, if so, we then determine




                                     11
  whether such actions warrant reversal under the proper standard of

  review. Wend v. People, 

 (Colo. 2010).

¶ 30   Where, as here, a defendant does not object to the challenged

  conduct at trial, we review a prosecutorial misconduct claim for

  plain error. People v. Rhea, 

. Plain error is

  obvious and substantial error that so undermined the fundamental

  fairness of the trial itself as to cast serious doubt on the reliability

  of the judgment of conviction. Hagos v. People, 

, ¶ 14.

  To rise to the level of plain error, prosecutorial misconduct must be

  flagrant or glaringly or tremendously improper. People v. Weinreich,

  

 (Colo. App. 2004), aff’d, 

 (Colo.

  2005).

¶ 31   Prosecutors have a heightened ethical responsibility as

  compared with other lawyers. Domingo-Gomez v. People, 

 (Colo. 2005). “[I]t is improper for a prosecutor[,]

  knowingly and for the purpose of bringing inadmissible matter to

  the jury’s attention[,] to ask a question which he knows will elicit an

  inadmissible answer.” People v. Oliver, 

 (Colo.

  1987).




                                      12
¶ 32     Although a prosecutor, during closing argument, “has wide

  latitude and may refer to the strength and significance of the

  evidence, conflicting evidence, and reasonable inferences that may

  be drawn from the evidence,” People v. Walters, 

  (Colo. App. 2006), the prosecutor may not misstate the law, use

  arguments calculated to inflame the passions and prejudices of the

  jury, People v. Samson, 

, or express a personal

  opinion on the truth or falsity of witness testimony, Wilson v.

  People, 

 (Colo. 1987).

                              B.   Discussion

¶ 33     Bobian contends that the prosecutor intentionally elicited

  inadmissible testimony while questioning Detective Longobricco and

  that certain arguments and statements made during closing

  argument amounted to prosecutorial misconduct.

¶ 34     After reviewing the record, we see no error that would warrant

  reversal as to the following instances raised by Bobian:

       • The prosecutor eliciting expert testimony from Detective

         Longobricco. We have concluded that the error in admitting

         this testimony was harmless, and we see no prejudicial error




                                     13
  arising from the prosecutor’s questioning that elicited the

  testimony. See Hagos, ¶ 14.

• The prosecutor asking Detective Longobricco to opine on

  whether the prosecution witnesses’ testimony was consistent

  with the statements they gave on the night of the incident, and

  whether the witnesses’ statements were consistent with each

  other. Even assuming that the prosecutor’s question in this

  regard was improper, we conclude that it did not rise to the

  level of plain error. First, the question was not “flagrant or

  glaringly or tremendously improper,” and thus did not

  constitute plain error. People v. McMinn, 

, ¶ 58.

  Second, the detective did not testify about whether the

  witnesses had testified truthfully. See Venalonzo, ¶ 32

  (witnesses are prohibited from testifying that another witness

  was telling the truth on a particular occasion). And third,

  Detective Longobricco’s equivocal response mitigated any

  prejudice. When asked whether the witnesses’ testimony was

  consistent with their statements on the night of the incident,

  the detective answered, “For the most part, yeah.” We

  conclude that this answer did not so undermine the


                               14
  fundamental fairness of the trial as to cast serious doubt on

  the reliability of the judgment of conviction. See Hagos, ¶ 14.

• The prosecutor advising the jury during closing argument that

  it should consider the greater offenses before considering the

  lesser included offenses. True, Colorado is a “soft transition”

  jurisdiction, in which the jury need not unanimously acquit

  the defendant of the greater offense before considering the

  lesser included offenses. People v. LePage, 

 (Colo. App. 2011), aff’d on other grounds, 

.

  But the prosecutor did not suggest that the jury had to acquit

  Bobian of the greater offenses before considering lesser

  offenses, and therefore did not misstate the law. See People v.

  Padilla, 

 (Colo. 1981) (finding no plain error

  in giving stock jury instruction on consideration of lesser

  included offense if jury did not find the defendant guilty of the

  charged offense, and stating, “it is not clear from the language

  of the instruction that the jurors would feel compelled to reach

  a unanimous decision on the greater offense before

  considering the lesser included offenses”).




                               15
• The prosecutor stating during closing argument that “the

  actions of bringing a weapon into a fist fight are inherently not

  reasonable no matter what.” When considered in context, this

  isolated comment does not portray a categorical exception to

  the degree of force that may be used in self-defense. The

  comment was inartful but permissible commentary on the

  evidence in this case and the State’s assertion of the

  unreasonableness of Bobian’s actions. See People v. Avila,

  

 (Colo. App. 1997) (“A reviewing court

  should examine alleged improper argument in the context of

  the prosecution’s closing argument as a whole.”); see also

  People v. Strock, 

 (Colo. App. 2010) (a

  prosecutor in closing argument may ordinarily use rhetorical

  devices and a reviewing court considers the frequency of

  alleged misconduct).

• The prosecutor stating during closing argument, “How do we

  know [Bobian is] the one who is not acting reasonably?

  Because he’s not sitting over there right now with a giant scalp

  laceration to the top of his head.” This comment related to the




                              16
  proportionality of Bobian’s physical response to what he

  claimed was a threat, and it was not improper.

• The prosecutor questioning Collins’s credibility during closing

  argument by referencing “the one true thing [Collins] said

  when she was sitting [on] that stand . . . ,” and “[h]er story

  that she came up with yesterday, . . . while [she was] sitting

  up there on the stand, that was kind of all brand new and we

  didn’t hear that at all through any of the officers, or anybody

  else . . . .” We disagree that these statements amounted to an

  expression of the prosecutor’s personal opinion of witness

  credibility. See Domingo-Gomez, 

 (“[C]ounsel

  may properly argue from reasonable inferences anchored in

  the facts in evidence about the truthfulness of a witness’

  testimony.”); see also United States v. Spain, 

 (7th Cir. 1976) (where conflicts in the evidence exist and

  cannot be the result of honest mistake, each counsel is

  “entitled to argue that witnesses called by him had spoken the

  truth and those called by the other side had testified falsely”).

• The prosecutor commenting on the credibility of the State’s

  version of events by stating, “I apologize for the fact that I put

                               17
         up witness after witness who told you the same exact version

         of basically these events, right?” and “[t]he officers tell you

         basically the same version of events, as well.” These

         statements were not expressions of the prosecutor’s personal

         opinion of the credibility of the witnesses but were proper

         statements on the consistency of the evidence. See Domingo-

         Gomez, 

.

       • The prosecutor referring to Collins as “the homeless hero” and

         a “squatter with a heart of gold” during his closing argument.

         While these comments were unnecessary characterizations of

         the defense witness, they would not have led the jury to decide

         on an improper basis and do not rise to the level of

         prosecutorial misconduct. Cf. People v. McBride, 

         (Colo. App. 2009) (reviewing courts accord prosecutors the

         benefit of the doubt where remarks are simply inartful).

                           IV.   Cumulative Error

¶ 35     Finally, Bobian argues that the trial court’s combined errors

  amounted to cumulative error. We have concluded that the error in

  admitting the blood pattern and tool marking testimony was

  harmless. And even assuming that the prosecutor’s question about


                                       18
  the consistency of certain witnesses’ statements was also improper,

  we still conclude that the cumulative effect of the errors does not

  require reversal. We reach this conclusion because, as discussed

  above, the blood spatter and tool marking testimony did not relate

  to a material disputed issue, and the question about whether the

  witnesses’ trial testimony was consistent with their earlier

  statements elicited only an equivocal response. Moreover, the

  asserted errors would not have had a cumulative prejudicial effect

  on “the fairness of the trial proceedings [or] the integrity of the fact-

  finding process”; therefore, reversal is not warranted based on

  cumulative error. Howard-Walker v. People, 

  (quoting People v. Lucero, 

, 

  (1980)).

                              V.   Conclusion

¶ 36   The judgment of conviction is affirmed.

       JUDGE WELLING concurs.

       JUDGE BERGER specially concurs.




                                     19
       JUDGE BERGER, specially concurring.

¶ 37   Is it permissible for a prosecutor to ask a police detective to

  testify at a criminal trial that the victim’s (or another witness’s)

  testimony and prior statements were consistent? The majority

  assumes, without deciding, that such testimony is impermissible.

  I think the question needs to be decided.

¶ 38   I begin with the black letter rule. “[N]either lay nor expert

  witnesses may give opinion testimony that another witness was

  telling the truth on a specific occasion.” People v. Wittrein, 

 (Colo. 2009). This prohibition extends, for example, to

  comments on a witness’s sincerity, People v. Eppens, 

 (Colo. 1999); believability, People v. Gaffney, 

 (Colo. 1989); or predisposition to fabricating allegations,

  People v. Snook, 

 (Colo. 1987). Further, the

  supreme court has “held that prosecutorial use of the word ‘lie’ and

  the various forms of ‘lie’ are categorically improper.” Wend v.

  People, 

 (Colo. 2010).

¶ 39   It is no answer that the detective’s opinion may have made it

  easier for the jury to determine whether the statements and

  testimony were consistent. One of the jury’s fundamental tasks is


                                     20
  to consider all of the testimony and to determine which version of

  the material events is more credible. COLJI-Crim. E:05 (2018). The

  jury heard all the out-of-court statements and the testimony, so

  comments on the consistency of that evidence did not provide the

  jury with any information beyond what it already had. Simply put,

  a jury does not need help determining whether statements were

  consistent, particularly from a witness who is obviously aligned

  with the prosecution. See People v. McFee, 

  (reasoning that detective’s opinion could not have been helpful

  because it was based on the same information the jury had). The

  admissibility inquiry should end there. See CRE 701 (limiting lay

  opinions to those that are helpful to the jury); CRE 702 (limiting

  expert opinions to those that assist the trier of fact).

¶ 40   But there is a stronger reason to reject such opinions. They

  invariably constitute an indirect opinion on the credibility of the

  witness. The supreme court has made clear that indirect opinions

  on another witness’s credibility are subject to the same

  exclusionary rules as direct opinions. Venalonzo v. People, 

.




                                     21
¶ 41   The detective’s opinion regarding consistency was, in effect,

  nothing less than the detective telling the jury that the witness was

  truthful in her accounts of the relevant events. The Attorney

  General has not explained, and I cannot discern, any other

  probative purpose for this opinion testimony.

¶ 42   Moreover, the circumstances surrounding this testimony are

  more egregious than an off-the-cuff opinion regarding the credibility

  of another witness. Here, the detective expressing the opinion was

  the prosecution’s advisory witness in a case in which all other

  witnesses had been sequestered under CRE 615. This detective

  was the only witness in the entire case who was permitted to

  remain in the courtroom during the testimony of other witnesses.

  The prosecution leveraged this privilege (the purpose of which has

  nothing whatsoever to do with the giving of such opinions) to

  provide these prohibited opinions.

¶ 43   In reaching my conclusions, I recognize that at least one

  division of this court has taken a different path. In People v. West,

  

, a detective testified that the timing of text

  messages between the victim and the defendant was “consistent

  with” other portions of the victim’s testimony and the police contact


                                    22
  with the victim and her mother. The detective also testified that

  events recited by the defendant in his text messages were

  “consistent with” other sources of information, including police

  records and the victim’s mother. 

¶ 44   In rejecting, on plain error review, the defendant’s argument

  that this testimony was improperly admitted, the West division

  reasoned that “the detective said nothing about the truth of

  testimony; instead the detective indicated only that certain

  statements did not conflict with other statements or evidence.” Id.

  at ¶ 43.

¶ 45   This analysis conflicts with the Colorado Supreme Court’s

  teachings that witnesses may not directly or indirectly testify about

  the truthfulness of another witness. See Wittrein, 

.

  Instead, I agree with the courts in other jurisdictions that have

  prohibited such opinion testimony.

¶ 46   In Dickerson v. Commonwealth, 

 (Ky.

  2005), the Kentucky Supreme Court held that it is improper for a

  witness to testify that another witness has made consistent

  statements, absent an express or implied charge of recent

  fabrication or improper influence. The court reasoned:


                                    23
             We perceive no conceptual distinction between
             testimony that repeats the witness’s prior
             consistent statement verbatim and testimony
             that the witness previously made statements
             that were consistent with her trial testimony.
             Either way, the evidence is offered to prove
             that the declarant’s trial testimony is truthful
             because it is consistent with her prior
             statements.

  

¶ 47    In State v. McKerley, 

 (S.C. Ct. App. 2012),

  a forensic interviewer was permitted to testify that, “in forming her

  ‘opinion as to whether . . . something happened,’ she considered

  whether the victim’s statements were ‘consistent with the other

  information’” she had on the case. Although the Court of Appeals of

  South Carolina acknowledged that the forensic interviewer never

  testified directly that she believed what the victim had stated, the

  court nevertheless concluded that “there is no way to interpret [the

  interviewer’s] testimony other than as her opinion that the victim

  was telling the truth.” 

¶ 48    Similarly, in State v. Jennings, 

 (S.C. 2011),

  the trial court permitted the State to introduce written reports of

  the forensic interviewer in which the interviewer stated that the

  “children provided ‘a compelling disclosure of abuse’ and provided


                                    24
  details consistent with the background information received from

  mother, the police report, and the other two children.” The South

  Carolina Supreme Court concluded that “[t]here is no other way to

  interpret the language used in the reports other than to mean the

  forensic interviewer believed the children were being truthful.” 

  Accordingly, the court held the admission of the reports was

  error. 

¶ 49   In my view, these cases were correctly decided and weigh

  heavily against a conclusion that West was correctly decided. 1

  Accordingly, I would hold that a police officer may not testify that

  the victim’s (or another witness’s) testimony and prior statements

  were consistent.




  1 A similar issue was addressed by the United States Court of
  Appeals for the Tenth Circuit in United States v. Toledo, 

 (10th Cir. 1993). In a kidnapping case, the court addressed a
  psychiatrist’s testimony concerning the mental state of the victim.
  The psychiatrist opined that the victim’s “consistency in reporting
  the nature of her abduction, being taken against her free will at a
  train station [and other facts] . . . were consistent with a high
  likelihood that [the kidnapping] occurred.” 

. The Tenth
  Circuit held that it was not plain error to allow the testimony but
  noted that the admissibility of this kind of opinion presented a
  “close question.” 

.

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¶ 50   I recognize that under some circumstances, a police officer’s

  belief regarding the consistency or inconsistency of a witness’s prior

  statements (or even the officer’s belief that the person was or was

  not telling the truth) might be relevant and admissible when the

  course of the police investigation is legitimately at issue. See, e.g.,

  Davis v. People, 

, ¶ 19; People v. Robles-Sierra, 

.

¶ 51   But caution is warranted. The Tenth Circuit has analyzed

  when the course-of-investigation exception is properly invoked.

  United States v. Cass, 

 (10th Cir. 1997). While

  acknowledging that the exception can allow for the admission of

  otherwise inadmissible evidence, the Tenth Circuit observed that

  “[c]ourts and commentators have recognized that out-of-court

  statements should not be admitted to explain why a law

  enforcement agency began an investigation if the statements

  present too great a danger of prejudice.” 

.

¶ 52   McCormick on Evidence rightly criticized the “apparently

  widespread abuse” of this exception:

             In criminal cases, an arresting or investigating
             officer should not be put in the false position
             of seeming just to have happened upon the


                                     26
             scene; he should be allowed some explanation
             of his presence and conduct. His testimony
             that he acted “upon information received,” or
             words to that effect, should be sufficient.
             Nevertheless, cases abound in which the
             officer is allowed to relate historical aspects of
             the case, replete with hearsay statements in
             the form of complaints and reports, on the
             ground that he was entitled to give the
             information upon which he acted. The need
             for the evidence is slight, the likelihood of
             misuse great.

  2 McCormick on Evidence § 249, at 104 (John W. Strong ed., 4th ed.

  1992) (footnotes omitted), quoted in Cass, 

.

¶ 53   Given this likelihood of misuse, the exception should only

  apply when the course of the police investigation is relevant at trial.

  Even then, a trial court must exercise sound discretion to limit

  such otherwise inadmissible evidence solely to the purposes

  underlying the course-of-investigation exception.

¶ 54   For these reasons, I reject the Attorney General’s argument

  that the detective’s testimony “could be read” as permissible

  testimony about the course of the investigation. The Attorney

  General does not explain, and I cannot discern, how the course of

  the investigation was relevant or at issue. And, as discussed, the

  detective’s opinion testimony concerned the credibility of other



                                     27
  witnesses, not the detective’s investigation. Therefore, the

  admission of the detective’s opinion that the victim’s prior

  statements and testimony were consistent constitutes error.

¶ 55   Nevertheless, I agree with the majority that, as presented to

  us, the prosecutor’s elicitation of the detective’s opinion does not

  justify reversal under the plain error standard. While evidentiary

  error occurred, Bobian presents this as a matter of prosecutorial

  misconduct. The prosecutor’s elicitation of this opinion evidence

  was not “flagrant or glaringly or tremendously improper,” People v.

  McMinn, 

, ¶ 58, so reversal is not warranted. In light

  of West, the error was not plain under this standard.




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