holding that because an 6 officer was the first witness to testify, his testimony could not have been used to bolster a second officer’s later testimony
How later courts described this case
- holding that because an 6 officer was the first witness to testify, his testimony could not have been used to bolster a second officer’s later testimony
- agreeing with appellate court's holding that because officer was first witness to testify, his testimony regarding "drug courier profile" could not have been used to bolster second officer's later testimony
- stating that if State's first witness gives testimony, the testimony does not fall within definition of bolstering
- criticizing majority for not discussing whether defendant’s failure to object to "bolstering" testimony at trial failed to preserve error
Written by the judges who cited it.
The opinion
McCORMICK, Judge,
dissenting on Appellants’ Petition for Discretionary Review.
Prior to his retirement, Judge John F. Onion prepared this dissent which I adopt as my opinion.
“The majority reverses these convictions on the basis of the testimony of the State’s first witness at the trial on the merits, Officer Williams, as to a drug courier profile. The majority thus sustains a common ground for review of the appellants.
“Prior to the joint trial appellants filed motions to suppress the fruits of what they claimed was an illegal search. After a hearing on the said motions, in which Officer Williams testified, the motions were overruled and appellants thus preserved for review any error as to the legality of the search. Appellants entered pleas of *422 not guilty in their joint trial and the burden of proof was thus placed on the State. What ensued was a contested case.
“The first witness at the trial on the merits was Officer Williams, who testified as he had at the suppression hearing, as to the development of a drug courier profile. The only objections to his testimony were “irrelevant” and “prejudicial” and “inflammatory,” normally general objections which preserved nothing for review. The arresting officer, Frausto, testified as to the stop of appellants’ vehicle on the highway for speeding, the consent to search, the search and the discovery of the contraband. On direct examination Frausto did not testify as to a drug courier profile. On cross-examination appellants inquired as to his drug courier profile training, what factors of the profile were present in the instant case and which factors were not present. The case was submitted to the jury as a contested case. There were no stipulations that the stop was legal and the consent to search was valid.
“On appeal appellants claimed that Officer Williams’ testimony was inadmissible because of ‘bolstering.’ All cases cited in their briefs in support of such contention related to ‘bolstering.’ Without observing that no objection on ‘bolstering’ was made at trial, the Court of Appeals rejected appellants’ separate points of error finding that no bolstering occurred as there was no earlier testimony for Officer Williams’ testimony to bolster.
“Completely abandoning the ‘bolstering’ contention, the appellants jointly advanced a distinct ground of review concerning Officer Williams’ testimony which was not raised or passed upon by the Court of Appeals. 1 Apparently recognizing that appellants are not properly before this Court with the ground for review, the majority uses a cover or a smoke screen of discussing whether the Court of Appeals correctly decided the bolstering contention although that contention is not involved in any ground for review nor briefed or relied upon by the appellants.
“Without discussing whether the error, if any, was properly preserved at the trial level, and ignoring that the basis of the ground for review was not raised or pushed on by the Court of Appeals, the majority reverses the convictions because of the admission of the testimony of the State’s first witness, Officer Williams, concluding from the record as a whole (without mentioning the cross-examination) that the appellants had not challenged the stop or the consent to search.
“Whatever may be said about the order in which the State called its witnesses, given the circumstances of this case, I dissent to such action of the majority a,nd to the reversal of these convictions for the reason given.”
W.C. DAVIS, J., joins this dissent.
. "The ground for review jointly urged by the appellants in separate briefs reads:
The Court of Appeals has condoned, if not expressly approved of an unprecedented view of what can qualify as relevant material evidence. Is it now going to be the law that the State an "brainwash” and predispose a jury to a guilty finding by use of extensive, repetitious testimony as to a nebulous, so-called "drug courier profile" (or just plain "guilty profile” as it occurred in this case) even though lawfulness of the arrest and search is never made an issue before the jury?’ ”