# United States v. John C. Sheffey > Court of Appeals for the Sixth Circuit · September 20, 1995 · 57 F.3d 1419 URL: https://www.frixlaw.com/law-library/cases/9488192 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. John C. SHEFFEY, Defendant-Appellant - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** September 20, 1995 - **Citations:** 57 F.3d 1419 - **Precedential status:** Published - **Opinion:** Concurring in part by Boggs - **Judges:** Ryan, Boggs, Rosen - **Cited by:** 75 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9488192 ## How later opinions describe it (automated extraction) - explaining that “the central holding of Torres ” is that “if an opinion question posed to a lay witness does not involve terms with a separate, distinct and specialized meaning in the law different from that present in the vernacular, then the witness may answer it over the ob… - concluding that lay witnesses could testify to whether they believed a defendant was driving recklessly and in extreme disregard for human life based on their pre-accident observations - noting that while the presence in the courtroom of anti-drunk driving activists wearing buttons in support of their cause during a murder trial where defendant is accused of having killed victim while driving under the influence was worrisome, reversal was not merited because … - noting the "troubling issues” of “the presence in the courtroom during the trial of some four to five members of anti-drunk-driving groups, all of whom were wearing noticeable buttons reflecting their cause” as well as an allegation that “these activists ‘even went so far as t… ## Opinion text BOGGS, Circuit Judge, concurring in part and dissenting in part. I concur in all of the court’s opinion in this case, except for its holding in Section II of the opinion that the district court properly admitted the statements by four key witnesses that Sheffey was driving “recklessly and in extreme disregard for human life.” I will concede at the outset that the legal question here turns on niceties that may seem contrary to common sense. The jury is being asked to decide a question of degree: just how bad was Sheffey’s driving, and was it bad enough to impute actual malice as his motive (when there was absolutely no evidence of such motive in actuality). The witnesses were clearly in the best position to explain just how bad his driving was, and even to put it in a framework of experience. This was done most succinctly and emphatically by Mrs. Leonardi, when she stated: “in my entire driving career, and even as [sic] my career as a passenger in a car prior to that, I have never seen driving like that.” The content of that statement is not objected to, and it was surely extremely powerful. At the same time, a finding of second-degree murder requires action well beyond “gross negligence”; it requires such recklessness that one can infer that Sheffey acted “willfully, deliberately, and with malice aforethought,” to quote the indictment. Because these terms are words of legal import, even if in reality they may convey nothing more than driving that is “awful” — “really awful”— or “absolutely terrible,” the jury is required to grapple with them as words of legal import. Rule 704 opens the door to conclusory opinions by declaring that testimony “is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” On the other hand, Rule 701 and the cases decided under it partially close this door by limiting lay testimony to those opinions that are “helpful” to [1] “a clear understanding of the witness’ testimony,” or [2] “the determination of a fact in issue.” *1434 Our circuit’s case of Torres v. County of Oakland, which the court discusses at some length, seems to me to be virtually on all fours with our case. A witness was asked for an opinion: “Had Ms. Torres been discriminated against because of her national origin?” This question was certainly in one sense helpful to understand the testimony, as a succinct summary of it, and helpful to a factual determination — the ultimate issue. Even so, our court found that the testimony was not helpful to the jury because Rule 701 was designed to protect “against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day.” Torres, 758 F.2d at 150 (quoting Advisory Committee note to Rule 704). The law in this circuit, based on Torres, is that Rule 701 does establish a standard somewhat more stringent than a simple reading of the words “clear understanding of the witness’ testimony” or “determination of a fact in issue,” would imply. The reason for this stringency is, as the Torres panel stated, that such “testimony conveying a legal conclusion [conveys] the witness’ unexpressed, and perhaps erroneous, legal standards to the jury.” Ibid. The court in Torres noted that the question tracked almost verbatim the language of the applicable statute. So does the question here. The court in Torres held that the word “discrimination” had a “specialized meaning in the law” even though the word certainly has a common lay meaning. In just the same way, in this case “extreme disregard for human life” is a form of words that is used in ordinary speech, but which also has a specialized legal meaning. If anything, I would venture that in the everyday speech of citizens of this circuit, the term “discrimination” appears with considerably greater frequency than the phrase “extreme disregard for human life.” I also note that the prosecutor phrased the question identically to all of the eyewitnesses, and used the exact phrase, “extreme disregard for human life,” that appeared in the jury instructions. Thus, given the law and reasoning in Torres, I am unable to conclude that the conclusory opinions of the witnesses do anything more than “tell the jury what result to reach.” 1 I thus dissent from the holding that the testimony was admissible. The court’s opinion goes on to state, in footnote 8, at page 1429, that the error was also harmless. Although this is a very close question, I am unable to agree with this as an alternative grounds for affirmance. The court is certainly correct, as it states in the footnote, that “the jury in this case had more than adequate evidence from which to conclude beyond a reasonable doubt that Sheffey was guilty” of murder. However, the harmless error standard requires something more than simply subtracting the offending testimony and gauging the likely outcome in the absence of that testimony. Instead, we must gauge whether the prospect of an acquittal or a hung jury in the absence of the wrongful testimony was sufficiently great to say that the admission of the testimony affected Shef-fey’s substantial rights. Under Fed. R.Crim.P. 52(a), the prosecution bears the burden of showing that Sheffey did not suffer prejudice as a result of the error. United States v. Olano, — U.S. -, -, 113 S.Ct. 1770, 1778 , 123 L.Ed.2d 508 (1993); McCandless v. United States, 298 U.S. 342, 347-48 , 56 S.Ct. 764, 766 , 80 L.Ed. 1205 (1936) (stating “well-settled rule that an erroneous ruling which relates to the substantial rights of a party is ground for reversal unless it affirmatively appears from the whole record that it was not prejudicial”). Accordingly, I believe that the admission of this testimony did affect Sheffe/s substantial rights. This case inherently involves a close line-drawing exercise, and our circuit has recognized that the weight of evidence against a defendant is a crucial factor in the harmless error analysis. United States v. Alt, 996 F.2d 827, 829 (6th Cir.1993) (failing to find an *1435 error harmless where evidence was less than overwhelming). Sheffey’s driving was atrocious and, as he now admits, criminal. Nevertheless, an even higher level of culpability is necessary for a finding that the crime involved was murder, rather than manslaughter. 2 On that question, the introduction of testimony from the eyewitnesses was almost certainly intended, and taken, as an opinion on the legal conclusion the jury was asked to reach. This fact leads me to conclude that the error, as such I believe it to be, was not harmless under Fed.R.Crim.P. 52(a). I therefore dissent as to this portion of the court’s opinion. . Footnote 6 of the court’s opinion, at page 1426, states that the witnesses "had no trouble understanding” the questions put to them. The witnesses' lack of confusion is, however, irrelevant. The issue is whether the jury was impermissibly led toward a certain conclusion. In fact, the clarity and certainty of the responses only heightens the danger that the jury was affected by the witnesses' submerged and possibly erroneous legal conclusions. . This distinction also leads to an enormous increase in punishment. Compare USSG § 2A1.2. (assigning a Base Offense level of 33 for second-degree murder, ultimately leading to a 10-year sentence) with USSG § 2A1.4.(a)(2) (assigning a Base Offense level of 14 for involuntary manslaughter; comparable adjustments would result in a sentence of about one year.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9488192. Public record. Not legal advice.