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State v. O'Hanlan11/5/2002
- examination of a State's witness, prompting the State to introduce otherwise inadmissible evidence in rebuttal. State v. McKinnon, 328 N.C. 668, 673, 403 S.E.2d 474, 477 (1991). Therefore, where a defendant examines a witness so as to raise an inference favorable to defendant, which is contrary to the facts, defendant opens the door to the introduction of the State's rebuttal or explanatory evidence about the matter. State v. Bullard, 312 N.C. 129, 157-58, 322 S.E.2d 370, 386 (1984).
Although it was error to admit evidence of PTSD substantively (or to not give the limiting instruction), defendant nonetheless opened the door to such evidence being admitted. Defendant's assignment of error as to Dr. Lichtig is overruled. Detective Fortner
Defendant contends Chief Deputy Fortner gave improper opinion testimony which was tantamount to expert testimony. As with the previous two witnesses, defendant argues that the trial court erred in permitting him to bolster the credibility of the complaining witness, and to testify essentially that she had in fact been assaulted, raped, and kidnapped.
Defendant heavily cross-examined Deputy Fortner as to his investigation and why certain procedures were done and not done. Specifically, defendant was asking the deputy why more items were not sent off for scientific testing. The challenged testimony at trial is as follows:
Q: You know what evidence --- what it means to have evidence that shows innocence of the accused, don't you?
A: Yes sir.
Q: Did you find any?
A: Any evidence of ---
Q: Or were you looking for any?
A: I didn't need much evidence, sir, because I have a victim that had told me who her attacker was and from the look that her physical person was and the way she described the attack and her bruising and her scars, she told me who the attacker was and she gave me a name and a description. That's what I needed because I was fortunate I had an eye witness victim that survived.
The State, on redirect examination touched on the earlier testimony:
Q: There was a lot of questions here from counsel for the defendant about the fact that you didn't send this off, you didn't send that off, you didn't do this or that check. What can you tell this jury about why you didn't have these things checked?
A: I had a victim that survived her attack. She could positively identify her assailant, the person that kidnapped, raped, and brutally beat her. If she had died ---
[Defense Counsel]: Objection, Your Honor, speculative.
[Court]: Overruled.
Q: Go ahead?
A: ...I would have done more fingerprinting, more checking under fingernails, more fiber transfer, because I wouldn't have known who done it. But she positively told me who done it and I arrested him.
Defendant notes that Deputy Fortner was not tendered as an expert at trial. However, defendant contends that he is a professional law enforcement officer who had extensive experience investigating crimes over a lengthy career, and that his testimony was tantamount to expert testimony.
The context in which this testimony was given makes it clear Fortner was not offering his opinion that the victim had been assaulted, kidnapped, and raped by defendant, but was explaining why he did not pursue as much scientific testing of physical evidence in this case as he would a murder case because the victim in this case survived and was able to identify her assailant. His testimony was rationally based on his perception and experience as a detective investigating an assault, kidnapping, and rape. His tes
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