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Onstad v. Payless ShoeSource8/24/2000
LT-Babcock, Inc. v. Emerson Elec. Co. (4th Cir. 1994), 33 F.3d 397, 400 (testimony properly excluded because witness lacked personal knowledge and any information that he had was obtained through reports he received from his staff).
76 In the case at hand, Payless, in its opening statement, contended that Payless had been told by the Billings Police, in regard to prior incidents involving Luplow, not to worry because he was a harmless pervert. Onstad contends that Payless's "harmless pervert" theory opened the door to a "Did you say this?" rebuttal. The question is whether Onstad's witnesses went beyond denying the statement and produced what can only be characterized as expert testimony as to the escalation of sex offenses.
77 Officer Jason Gartner's testimony on this point was as follows:
Q. Officer, when we left off last night you had described for us, from Exhibit 23, the facts and some detail of Mrs. Shoemaker--both of the incidents that occurred where she was a victim of sex crime in February of '96, and you were working on the one in May of '97, correct?
A. Yes.
Q. You had told the jury that the incident in May of '97 had been assigned to the special detective unit dealing with sex crimes, such as flashing and the related other crimes, correct?
A. Correct.
Q. Now my question is this, did you ever say to Jennifer Shoemaker that the man that grabbed her and exposed himself to her and masturbated and ejaculated on the carpet in the Payless Store in the Heights in May of '97, was a harmless pervert who would never hurt anyone?
A. Absolutely not.
78 As an officer investigating the prior incident he testified that he did not make the "harmless pervert" statement that was attributed to him by Payless. This testimony from Officer Gartner was directly responsive to the issue and was proper rebuttal. His subsequent testimony that "It's well known to all of us these types of things escalate" was objected to as expert testimony and the objection was properly sustained.
79 My concern, and the basis for this dissent, is with the testimony of Officer Sandra Leonard, that was presented during Onstad's case-in-chief after an in camera discussion in which Onstad argued that a witness can be qualified under Rule 701 through his/her experience and Payless argued that if a witness is "qualified" through experience or education, that witness is an "expert," not a lay witness under Rule 701; that Rule 701 only requires that the witness testify about something in the common experience.
80 The relevant portion of Officer Leonard's testimony was as follows:
Q. Let's move on to another subject. I want to lay some foundation for this. In your training and your education and your experience for the Billings Police Department, have you found any correlation between a sex crime that may start as a flashing sex crime, that may advance beyond flashing to some touching or masturbation and sex crime that may advance to an exposure and assault like Katie, and sex crimes going on towards something more serious like very serious bodily harm or murder, have you had experience--have you knowledge about such things because of your position in working in Billings as a police officer? That is my question.
Mr. Speare [Payless's counsel]: Your Honor, we would make the same objection. It's irrelevant to a lay opinion.
Mr. Edwards [Onstad's counsel]: I think this would be a yes or no answer.
The Court: Overruled.
The Witness: Yes.
Q. [by Mr. Edwards]: Would you then describe your experience to this jury, please?
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