John Musser, the defendant in this case, was accused of sexually touching an 11-year-old girl while she was pretending to sleep on a couch at Musser’s home. Two Kent County detectives interrogated Musser and videotaped the interview. During the interview, Musser denied touching the girl in the way she had described; the detectives made various comments, including, “Why is she gonna put herself through that if it didn’t happen?” and “Kids don’t lie about this stuff” and “That’s [the girl’s allegations] pretty credible; that’s pretty detailed.”
Musser’s attorney objected to some police statements in the video. But the circuit court judge allowed the jury to view and hear much of the video, including the detectives’ statements. Afterwards, the judge instructed the jury that, “The questions of the lawyers are not evidence, only the answers of a witness are evidence.” Similarly, as to the video, the jury could only consider Musser’s answers to the detectives’ questions; the judge cautioned the jury that the detectives’ comments and questions were not evidence.
The jury convicted Musser of two counts of second-degree criminal sexual conduct and assault and battery. Musser was sentenced to concurrent terms of two to 15 years on the criminal sexual conduct convictions and to time served on the assault and battery. He appealed, arguing in part that the trial judge erred by not redacting from the video statements the detectives made where they appeared to vouch for the victim’s truthfulness or disparage Musser’s credibility.
But in an unpublished per curiam opinion, the Court of Appeals upheld Musser’s conviction.
Musser had failed to preserve his claims of error as to a number of the detectives’ statements, because his trial counsel had approved those portions of the transcript before trial, the appellate court said. “[M]any of the statements to which defendant objected were found on those pages that defendant expressly approved,” the panel noted. However, defense counsel had not approved a number of other transcript pages, which also contained statements by the two detectives, the Court of Appeals added. “We review unpreserved claims of evidentiary error for plain error affecting the defendant’s substantial rights.”
It is the jury’s function to assess whether witnesses are credible; “[c]onsequently, it is improper for a witness to comment or provide an opinion on the credibility of another witness,” the Court of Appeals explained.
Some of the detectives’ statements in the interview would have been inadmissible if the detectives had made them during their testimony at trial, the appellate panel observed.
“However, we find no abuse of discretion or plain error in the trial court’s decision to allow the prosecutor to include the questions and statements of the detectives in the DVD of defendant’s interview,” the Court of Appeals declared. “We agree with the trial court that the questions and statements of the detectives were ‘part of the interrogation’ of defendant and that they ‘give meaning or context to the answers or lack of answers’ by defendant. The jury needed to hear the entire context in which the answers were made in order to determine the weight to be given to defendant’s answers and in order to simply understand and properly evaluate the answers.”
The Court of Appeals continued, “Almost all of the courts that have considered the issue recognize that this form of questioning is a legitimate, effective interrogation tool. And because such comments are such an integral part of the interrogation, several courts have noted that they provide a necessary context for the defendant’s responses. We agree that such recorded statements by the police during an interrogation are a legitimate, even ordinary, interrogation technique, especially when a suspect’s story shifts and changes. We also agree that retaining such comments in the version of the interrogation recording played for the jury is necessary to provide a context for the answers given by the suspect.”
Moreover, the trial judge’s instruction to the jury that the detectives’ statements and questions were not evidence “was sufficient to cure any possible prejudice that defendant may have suffered,” the Court of Appeals added.
Musser appealed; in an order dated September 26, 2012, the Supreme Court granted leave to appeal. The Court said the appeal would be “limited to the issues: (1) whether statements in a recording of a police interview of a criminal defendant that vouch for the credibility of a witness, which would be inadmissible if stated by a trial witness, must be redacted from the recording before the jury views it; or (2) if the jury is allowed to see such a recording without redacting the vouching statements, what circumstances must be present and what, if any, protective measures must be in place.”