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

2019COA183

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 2019COA183

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, 55 P.3d 107, 122 (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, 2018 CO 61, ¶ 8. 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, 2012 COA

117, ¶ 61.

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

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

People, 2017 CO 9, ¶ 23. 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. Id. 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. Id.

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

perceptions, observations, and experiences. People v. Veren, 140

P.3d 131, 137 (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. Id.

¶ 13 In People v. Ramos, 2017 CO 6, ¶ 9, 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, 219 P.3d 1054,

1063 (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, 235 P.3d 1089, 1096 (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, 2014 COA 60, ¶ 43. 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, 2012 CO 63, ¶ 14.

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

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

98 P.3d 920, 924 (Colo. App. 2004), aff’d, 119 P.3d 1073 (Colo.

2005).

¶ 31 Prosecutors have a heightened ethical responsibility as

compared with other lawyers. Domingo-Gomez v. People, 125 P.3d

1043, 1049 (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, 745 P.2d 222, 228 (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, 148 P.3d 331, 334

(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, 2012 COA 167, ¶ 32, or express a personal

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

People, 743 P.2d 415, 419 (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, 2013 COA 94, ¶ 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, 397 P.3d 1074,

1077 (Colo. App. 2011), aff’d on other grounds, 2014 CO 3.

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, 638 P.2d 15, 17-18 (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,

944 P.2d 673, 676 (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, 252 P.3d 1148, 1153 (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, 125 P.3d at 1051 (“[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, 536 F.2d 170,

174 (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, 125 P.3d at 1051-55.

• 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, 228 P.3d 216

(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, 2019 CO 69, ¶ 24

(quoting People v. Lucero, 200 Colo. 335, 344, 615 P.2d 660, 666

(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, 221 P.3d

1076, 1081 (Colo. 2009). This prohibition extends, for example, to

comments on a witness’s sincerity, People v. Eppens, 979 P.2d 14,

17 (Colo. 1999); believability, People v. Gaffney, 769 P.2d 1081,

1088 (Colo. 1989); or predisposition to fabricating allegations,

People v. Snook, 745 P.2d 647, 649 (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, 235 P.3d 1089, 1096 (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, 2016 COA 97, ¶ 76

(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, 2017 CO

9, ¶ 32.

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,

2019 COA 131, ¶ 37, 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. Id.

¶ 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, 221 P.3d at 1081.

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

prohibited such opinion testimony.

¶ 46 In Dickerson v. Commonwealth, 174 S.W.3d 451, 472 (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.

Id.

¶ 47 In State v. McKerley, 725 S.E.2d 139, 142 (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.” Id.

¶ 48 Similarly, in State v. Jennings, 716 S.E.2d 91, 94 (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.” Id.

Accordingly, the court held the admission of the reports was

error. Id.

¶ 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, 985 F.2d
1462 (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.” Id. at 1469. 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.” Id. at 1470.

25
¶ 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, 2013 CO 57, ¶ 19; People v. Robles-Sierra, 2018

COA 28, ¶ 26.

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

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

United States v. Cass, 127 F.3d 1218 (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.” Id. at 1223.

¶ 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, 127 F.3d at 1223.

¶ 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, 2013 COA 94, ¶ 58, so reversal is not warranted. In light

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

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