Indiana Evidence Rule 704(a) generally allows witness opinion testimony to “embrace” an ultimate issue—but as a matter of constitutional right, only a jury may resolve an ultimate issue. And Evidence Rule 704(b) explicitly prohibits, in criminal cases, witness opinions concerning the ultimate issue of guilt.
In Defendant’s trial for drug dealing, the detective who observed a controlled buy testified, “there’s zero doubt in my mind that that was a transaction for cocaine.” This opinion did not merely “embrace” an ultimate issue by implying Defendant’s guilt. It was rather an outright opinion of guilt—rendering it inadmissible under Evidence Rule 704(b) and violative of the jury’s right to determine the law and facts in criminal cases. The trial court therefore should have excluded that testimony. But because that error was harmless, we affirm.
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The State charged Williams with two B-felony counts of dealing in cocaine. [Citation omitted.] Evidence at trial included audio of a phone call setting up the two [controlled] buys; audio-video recordings of the buys themselves; testimony from the CI; and testimony from Detectives Brooks, Cole, Dwiggins, and Gaskill. Over the defense’s objection, Detective Gaskill testified [as to the first buy]:
…. Having conducted over two hundred and fifty of these types of investigations, there’s zero doubt in my mind that that was a transaction for cocaine.
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Our evidence rules allow witnesses to testify to their opinion of the facts and circumstances if the opinion is “(a) rationally based on the witness’s perception; and (b) helpful to a clear understanding of the witness’s testimony or to a determination of a fact in issue.” Ind. Evidence Rule 701. Such an opinion is admissible even if “it embraces an ultimate issue.” Evid. R. 704(a).
But Evidence Rule 704(b) draws a bright-line exception: “Witnesses may not testify to opinions concerning . . . guilt[] or innocence in a criminal case.” Ind. Evidence Rule 704(b). … [S]uch testimony usurps the jury’s “right to determine the law and the facts,” Ind. Const. art. I, § 19, and is therefore inadmissible.
Taken together, those principles establish that even in criminal cases, opinion testimony may include “evidence that leads to an [incriminating] inference, even if no witness could state [an] opinion with respect to that inference.” [Citations omitted.] But an opinion must stop short of the question of guilt— because under Rule 704(b) and our constitution, that is one “ultimate issue” that the jury alone must resolve.
Here, Detective Gaskill’s testimony that he saw a “transaction for cocaine” overstepped that line. His opinion did not … merely imply guilt by addressing some of the elements of Williams’s dealing charges. Rather, his testimony extended to the ultimate issue of guilt on one of those charges by stating, not merely implying, that Williams’s conduct satisfied every element of the dealing offense. Those elements include (1) knowingly or intentionally, (2) delivering, (3) cocaine. I.C. § 35-48-4-1(a). In the context of Detective Gaskill’s entire testimony, “transaction” necessarily refers to delivery by exchanging one thing for another, and the phrase “for cocaine” necessarily refers to Williams’s knowledge or intent that cocaine was the subject of that exchange. The testimony establishes both the prohibited act and the mens rea, leaving nothing for the jury to decide. In sum, the phrase “transaction for cocaine” in this record simply parrots the underlying offense, thereby establishing guilt.
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The State argues that excluding Detective Gaskill’s testimony would require overruling precedent allowing officers to testify to other facts like defendants’ intoxication or identity. But such cases are distinguishable because an opinion of intoxication or identity does not reach every element of the offense. An opinion on those issues may imply guilt [citation omitted], but does not embrace the ultimate question of guilt, because the State still must prove the other elements in order for the jury to find guilt.
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By contrast, … Detective Gaskill’s testimony, unlike testimony of intoxication and identity, does not just describe or imply some elements of the offense, but all of them—including mens rea. Detective Gaskill could (and indeed did) imply guilt by explaining to the jury the process of controlled buys and utilizing confidential informants; his experience handling narcotics; and how narcotics are weighed and tested. He could also testify to the validity and authenticity of the audio and video recordings produced during both transactions. And he could testify to all of the particular actions of the Defendant: that on the first buy, he handed the CI money; the CI completed a hand-to-hand exchange with Williams; and the CI returned to the vehicle with crack cocaine. All of these statements would have been admissible, even though they may quite strongly “lead[] to an inference” of dealing in cocaine. [Citation omitted.] But Detective Gaskill was not permitted to expressly state the ultimate legal conclusion that Williams performed a “transaction for cocaine.” At that point, his testimony no longer merely implied guilt, but declared it just as conclusively as if he had stated, “there’s zero doubt in my mind that he is guilty of dealing cocaine”— a statement that would clearly violate Rule 704(b). Since his testimony that a “transaction for cocaine” occurred effectively resolved the ultimate issue of guilt as to the first buy, the trial court abused its discretion by admitting this statement.
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Detective Gaskill’s testimony that he witnessed the Defendant “conduct a transaction for cocaine” improperly resolved the ultimate issue of Defendant’s guilt of one drug dealing charge and was therefore inadmissible under Evidence Rule 704(b). But because it was harmless in light of the overwhelming independent evidence of guilt, we affirm Defendant’s convictions.
Dickson, Rucker, David, and Massa, JJ., concur.