DA Motions -- one of four I don't belive I have ever heard of a case where a District Attorney has DA'ed the police saying they are incompetent to recognize a crime when it happens. I must say this opens another defense argument. If the police can't tell if some act is a crime, how is a poor citizen to know? I would appreciate it if some of you with a little more time than I have research these cases and see if they are what the DA clams them to be. Thanks. Keith Henson GROVER TRASK District Attorney County of Riverside 910 N. State St. Hemet, CA 92543 Telephone: (909) 766-2370 State Bar No.202293 Filed March 12 SUPERI0R OF CALIFORNIA COUNTY OF RIVERSIDE (Hemet) THE PEOPLF OF THE STATE OF CALIFORNIA, CASE NO: HEM014371 Plaintiff, MOTION IN LIMINI TO EXCLUDE LAY OPINION OF V' DETECTIVE GREER H. KEITH HENSON, Defendant. The People are presenting this motion in limine in an effort to limit the issues to present in this ease. The underlying facts herein involve the defendant, H. Keith Henson, a Palo Alto, California resident, who has taken up posting on the Internet in a way that has frightened a number of people, including several complaining witnesses in the local Hemet area. [It should be noted that the "complaining witnesses" were hand picked by Hoden and are not independent agents, but employees or prehaps "captives" would be more descriptive--hkh] The People are concerned that the defendant plans to call Detective Anthony Greer to testify concerning his opinion of the degree of threat that the defendant had committed, or the defendant may request to use a portion of the police report Detective Greer wrote concerning that opinion. However, the People hereby object to the defendant's attempted use of that type of testimony or that portion of the report and the People further request an order, before jury selection or the commencement of trial, excluding such testimony or the portion of the report upon the ground that the introduction of the Detective's opinion as to the severity of the threat is an impermissible opinion and thus not admissible. I, STATEMENT OF FACTS The defendant was arrested and arraigned for violations of California Penal Code, 422, 664/422 and 422.6. The defendant committed these acts against individuals who are parishioners of the Scientology religion and who work on premises Golden Era Productions (“Golden Era"). The defendant, in fact, knew that they were Scientologists at the time and intentionally made threats due to their religion. The People are concerned that the defendant plans to call one of the investigating officers, Detective Anthony Greer, who made a statement near the end of his report concerning the defendant's threat of violence towards Golden Era and its personnel [Detective Greer wrote: “There does not appear to be any criminal intent of direct threat in this case. Due to the newness of this section this case will be taken to the Hemet District Attorney's Office for review."]. However, this statement is nothing but his own opinion and is not permitted to be entered into the record. II, ARGUMENT A. Detective Greer Is Not Permitted To Express An Opinion On Whether A Crime Was Committed. If a witness is not testifying as an expert, his testimony concerning his opinion is limited to only those opinions permitted by law. Cal.Evid. Code 800 Additionally it a witness is testifying as an expert, his opinion testimony is limited to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. Cal.Evid. Code 80. Detective Greer's opinion as to the severity of the defendant's threats does not satisfy the limitations set out above in the California Evidence Code, Additionally, case law supports the prohibition on the expression of an opinion on whether a crime was committed, and on the defendant's guilt. People V. Torres (1995)33 Cal.App4th) 37, 45, 39 Cal.Rptr.2d 103. In Torres, during the prosecution for murder committed during an attempted robbery, the police officer was improperly allowed to express an opinion on the definition of crimes, on whether a crime was committed, and on the defendant's guilt. The court found that the officer's expression of such an opinion was improper, noting that "Opinion testimony is generally inadmissible at trial. Opinion testimony may he admitted in circumstances where it will assist the jury to understand the evidence of a concept beyond common experience. Thus, expert opinion is admissible if it is 'related to a subject that is sufficiently beyond common experience [and] would assist the trier of fact."' Torres at 45, 39 Cal.Rptr.2d at 107. Further, the Torres court said, "[O]pinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw conclusion on the issue of guilt." Torres at 47, 39 Cal.Rptr.2d at 108. Similarly, the court found it wholly improper to ask a police officer who had signed the original complaint against the defendant, for his opinion on the guilt or innocence. People V. Mason (1960)183 Cal.App.2d 168, 173,6 Ca.Rptr. 649, 652 Additionally, in United Slates V. Harher (9th Cir. 1995) 53 F.3d 236, 241, the court found it to be reversible error where investigating officer's summary report containing the officer's personal opinions on the defendant's guilt was accidentally read and relied upon by the jury. Thus, neither the portion of Detective Greer's police report, nor the opinion underlying it, are permissible areas of testimony to introduce in this case III CONCLUSION Detective Greer's statement concerning the severity of the defendant threats against the Church of Scientology, or its personnel, is inadmissible as an opinion. Accordingly, the People respectfully request that their motion to exclude portion of Detective Greer's report, and any underlying testimony or statements concerning that section of the report, should be granted. Dated; March 9, 2001 Respectfully submitted GROVER TRASK District Attorney (signed) ROBERT K SCHWARZ Deputy District Attorney