People v. Martin, 2017 IL App (4th) 150021 (June). Episode 380 (Duration 9:58)

A little police opinion testimony was not a problem.

Single Car Accident

Defendant was convicted of aggravated DUI.

The Trooper discovered a black car in the ditch and two men standing outside the vehicle.

The Trooper asked if the men were all right, and they responded they were. The Trooper then asked who had been driving the vehicle, and defendant stated his wife had been driving.

Defendant explained his wife accepted a ride from someone on the interstate to get a tow truck.

The Trooper noted there were no footprints in the snow walking away from the vehicle or walking along the interstate. The Trooper Vandeventer also noted a strong smell of alcohol on defendant’s breath.

The other man eventually says defendant was driving.

Records check revealed he was revoked and at that point he is arrested.

It’s A DUI

Defendant, of course, appeared disoriented, his eyes were red and glassed-over, and his breath smelled of alcohol.

By this point a different the Trooper takes over and asks defendant how many alcoholic beverages he had consumed, and defendant responded he had consumed “four beers approximately.”

The Trooper administered a field sobriety test, but the test was inconclusive.

The Trooper then arrested defendant for driving with a revoked license.

The Trooper transported defendant to the jail and administered the “walk-and-turn” field sobriety test and the “one-legged stand” field sobriety test, both of which indicated defendant was impaired.

Defendant was then charged with DUI.

Wife & Buddy Testify

Defendant’s buddy testified that he was drinking beer with defendant. When they left defendant drove.

While defendant was driving, he slid off the road.

Defendant’s wife was never with them. The wife testifies she was driving, but admitted she did not say this to the the Trooper when she called defendant’s phone and the The Trooper answered.

At that point she was told he was being arrested for DUI and all she did was ask about her car being towed.

Opinion Testimony

It was harmless error when the prosecutor asked the The Trooper who the The Trooper thought was driving.

Defendant argues The Trooper testimony was unfairly prejudicial because the jury was likely to believe him due to his role as a state Trooper.

Defendant also makes much of the fact The Trooper Vandeventer’s testimony related to “the only issue for the jury to decide” and complains this testimony “usurped the province of the jury to judge the credibility of witnesses and decide the facts.”

Ultimate Fact Doctrine

But the court rejected this idea, noting that: Illinois courts have rejected the so-called “ultimate fact” doctrine, which held that a witness may not express his opinion as to the ultimate issue in a case.

Instead, it is now well settled that a witness, whether expert or lay, may provide an opinion on the ultimate issue in a case. This is so because the trier of fact is not required to accept the witness’ conclusion and, therefore, such testimony cannot be said to usurp the province of the jury. See also Ill. R. Evid. 704. (“Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”)

Illinois Rule Of Evidence 701

The Trooper’s testimony as technically an improper lay opinion.

Illinois Rule of Evidence 701 states:

“If the witness is not testifying as an expert, the witness’ 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 the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”

Analysis

At the outset, we note the The Trooper’s opinion was rationally based upon his perceptions of the scene and his conversations with defendant and his buddy, and it was not based upon specialized knowledge.

The fact defendant was arrested for driving with a revoked license necessarily means The Trooper Vandeventer believed defendant was driving. Put another way, if The Trooper Vandeventer did not believe defendant was driving, The Trooper Hedges would not have arrested defendant.

Accordingly, the The Trooper’s testimony did not encourage the jury to make its decision on an improper basis but, rather, pointed to an obvious inference based upon the facts already in evidence.

We find no unfair prejudice in The Trooper’s statement he believed defendant was driving. We conclude the trial court did not abuse its discretion or commit plain error by overruling defendant’s objection to The Trooper’s testimony, and we honor defendant’s forfeiture.

Also There’s Past & Present Opinions

In People v. Hanson, 238 Ill. 2d 74, 939 N.E.2d 238 (2010), the supreme court drew a line between past and present opinions, concluding statements of past opinions were not improper lay opinions and were admissible.

The Degorski court concluded the officer’s testimony reflecting his prior opinion about the defendant’s credibility during an interrogation was not improper opinion testimony because it was a past—not present—opinion.

Here, the State’s questions with respect to The Trooper’s testimony were phrased in the past tense. The State asked, “Who did you think was driving?” and “How did you come to that conclusion?”

Though The Trooper’s answer to the first question was phrased in the present tense, his answer to the second question clarified the fact he was testifying about his prior beliefs.

Pursuant to the Hanson principle, this testimony was not an improper lay opinion because it was not offered as a present opinion on defendant’s credibility but, rather, was a statement of past belief offered to explain the course of investigation, i.e., why defendant was ultimately arrested.

The court concluded The Trooper’s testimony about his past opinion was outside the purview of Rule 701. The Trooper Vandeventer merely stated why he believed defendant was driving, which explained why and how defendant was investigated and ultimately arrested.

His belief was supported by his observations of the scene and Woodland’s confession.

This was not a “human lie detector” situation, and The Trooper’s testimony did not encourage the jury to base its decision on improper factors; rather, his testimony encouraged the jury to make its decision based on the evidence.

The court concluded this testimony was not unfairly prejudicial, as the probative value in explaining the course of the investigation and arrest was not substantially outweighed by any prejudicial effect. See Ill. R. Evid. 403.

Despite the fact defendant failed to clearly assign error to defense counsel with respect to The Trooper’s second statement, we conclude any such argument would have been groundless, and we reject his argument that The Trooper’s second statement was unfairly prejudicial.

See Also

Police Officer’s Human Lie Detector Testimony Clearly Erroneous Opinion Testimony – Episode 381 

Aggressive Interrogation Is More Prejudicial Than Probative (Defendant Never Confessed) – Episode 378

Police Can Offer Opinion Testimony of Who They Think Is Depicted In a Video – Episode 135