finding that police chemist's opinion that defendant was physically present at time of murder amounted to impermissible expression of defendant's guilt and explaining that despite 12 O.S. § 2704 permitting expert opinion testimony on the ultimate issue, bolstering credibility of complaining witnesses through expert testimony usurps jury's fact-finding function because sole responsibility of jurors is to assess credibility of witnesses in light of their own experience
How later courts described this case
- finding that police chemist's opinion that defendant was physically present at time of murder amounted to impermissible expression of defendant's guilt and explaining that despite 12 O.S. § 2704 permitting expert opinion testimony on the ultimate issue, bolstering credibility of complaining witnesses through expert testimony usurps jury's fact-finding function because sole responsibility of jurors is to assess credibility of witnesses in light of their own experience
- noting, inter alia, that Macy improperly expressed his personal opinion of the guilt of the accused; informed the jury it had a responsibility to convict on the basis of his own sense of justice; requested sympathy for the defendant’s victims; and expressed his personal opinion as to the appropriateness of the death penalty
- reversing a conviction, remanding for a new trial, and stating that “[s]ueh argument was not based on evidence supporting any alleged aggravating circumstance, but was simply a statement of Mr. Macy’s personal opinion as to the appropriateness of the death penalty and, as such, was clearly improper.”
- reversing a conviction, remanding for a new trial, and stating that "[s]uch argument was not based on evidence supporting any alleged aggravating circumstance, but was simply a statement of Mr. Macy's personal opinion as to the appropriateness of the death penalty and, as such, was clearly improper."
Written by the judges who cited it.
The opinion
BUSSEY, Judge,
dissenting:
I must respectfully dissent. While conceding that both defense counsel and the State were dilatory in failing to supply evidence and reports to appellant’s expert, I find the present situation similar to that in Walker v. State, 723 P.2d 273 (Okl.Cr. 1986) cert. denied, 479 U.S. 995 , 107 S.Ct. 599 , 93 L.Ed.2d 600 . There, the defense psychiatrist received medical records two days before the trial. Since the doctor had nearly a week to review the records before testifying, we found that the trial court properly overruled defendant’s motion for continuance.
In the present case, Wilson had nine days before testifying to analyze the forensic report prepared by Gilchrist. Although he was unable to adequately examine all physical evidence, he did examine some of it. He testified that he took no exception to any of the findings contained in Gilchrist’s report. I would find that Wilson had sufficient time to review the forensic report. Based on this and the procrastination of both parties, I would find that appellant was not denied due process.
The opinion testimony of Joyce Gilchrist presented a question of fact for the jury to weigh against her testimony on cross-examination and the testimony of appellant’s expert. In Smith v. State, 737 P.2d 1206, 1212 (Okl.Cr.1987), we addressed a similar question. There, we held that because of his knowledge, skill, and experience in forensic medicine, a witness was properly qualified to testify as an expert, over a defense objection. On the basis of the color and general appearance of hairs, he suspected that they came from the victim. We found that opinion to be proper, and further noted that even laymen may express opinions rationally based on their perceptions. There was no error in Smith ; neither is there any in this case, where no objection was raised.
The statement of the Southwestern Association of Forensic Scientists provides no basis to reject Gilchrist’s opinion. It specifically states, “There is, and should be, no official position of the Association as to what constitutes approved opinion testimony, so long as the expert does not make factual misrepresentations.” There was no factual misrepresentation in this case. Gilchrist expressed her opinion, based upon her knowledge, experience, and expertise, that appellant had been present when the murder was committed. Her testimony was properly admitted under 12 O.S.1981, § 2702.
With respect to the hair imbedded in one of the wounds of the victim, the inventory for State’s Exhibit No. 4 listed a hair taken from a wound, but it did not specify which wound. Since the hair came from one of the wounds and all wounds were stab wounds, as determined by the autopsy report, the State’s theory that appellant was present at the time of the murder could have been postulated on any one of the wounds. Although it was error to permit Gilchrist to testify concerning which wound the hair came from, a fact outside her personal knowledge, the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).
In regard to the prosecutor’s arguments, I note that some of them were based on appellant’s conduct at trial, some of them responded to arguments advanced by defense' counsel, and many others were not preserved for review by a timely objection. While I do not condone the arguments of the prosecutors in the present case, in light of the totality of the evidence presented at trial, I do not find the statements to be so egregious as to require reversal. See Brewer v. State, 718 P.2d 354 (Okl.Cr.1986).
As I can find no errors in the trial warranting reversal, I must dissent.