State of Washington v. Roger Dean Lewis
37865-9
| Wash. Ct. App. | Nov 16, 2021Background
- Roger Lewis was prosecuted for attempting to elude a police vehicle after a deputy attempted to stop a green Dodge Dakota with expired tabs. The driver exited the freeway, ran a red light, accelerated onto the freeway, drove ~20 mph over the limit, and repeatedly changed lanes without signaling.
- Deputy Amber Tyler testified that, based on her observations, she would categorize the driving as "reckless," and that continuing the pursuit became too dangerous in downtown Spokane.
- Defense objected at trial to the characterization as speculation (not specifically to opinion-on-guilt); the trial court overruled and the jury convicted Lewis. Defense theory was mistaken identity; Lewis called an expert on eyewitness reliability.
- Jury instructions emphasized the jury’s role as factfinder and that it need not accept expert opinions.
- Lewis was sentenced using an offender score of 9+ that counted three prior possession convictions and one conspiracy-to-possess conviction; following State v. Blake the State concedes these possession-based priors require excluding at resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the deputy’s testimony that the driving was "reckless" was an impermissible opinion of guilt (invaded jury factfinding) | Testimony was a permissible opinion based on observable facts the jury could evaluate | The testimony expressed an opinion on an element of the crime and improperly invaded the jury’s role | Not impermissible; opinion permissible because based on observable driving jurors can independently assess; reviewed as manifest error despite preservation issue |
| Whether the claim is preserved / reviewable on appeal | Any preservation failure precludes review | Objection at trial was to speculation not to an opinion of guilt; but the issue implicates a constitutional right and is therefore reviewable as manifest error | Although not properly preserved, the court reviewed under RAP 2.5(a)(3) because impermissible opinion on ultimate issue affects constitutional right |
| Whether Lewis received ineffective assistance for counsel’s failure to object to the testimony | No prejudice because the testimony was admissible; counsel not ineffective | Counsel was ineffective for failing to object to impermissible opinion testimony | Rejected — no ineffective assistance because the testimony was permissible |
| Whether resentencing is required because prior possession convictions are invalid under Blake and thus cannot be counted | State concedes resentencing is required | Lewis seeks resentencing excluding possession-related priors | Remanded for resentencing excluding the three possession convictions and the conspiracy-to-possess conviction |
Key Cases Cited
- Kirkman, 159 Wn.2d 918 (2007) (impermissible opinion testimony on ultimate issue can violate the jury’s factfinding role)
- Demery, 144 Wn.2d 753 (2001) (factors to determine if opinion testimony improperly comments on guilt: witness type, nature of testimony, nature of charge, defense type, other evidence)
- Heatley, 70 Wn. App. 573 (1993) (officer opinion of intoxication permissible where based on observable conduct jurors can evaluate)
- Quaale, 182 Wn.2d 191 (2014) (officer’s opinion based on technical test results may be impermissible if jurors cannot independently evaluate underlying basis)
- Blake, 197 Wn.2d 170 (2021) (Washington statute criminalizing possession without mens rea invalidated)
- Ammons, 105 Wn.2d 175 (1986) (convictions constitutionally invalid on their face may not be counted in offender score)