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Court of Appeal:
Expert Testimony That Defendant Fired Shot Was Improper
Stating Opinion on What Was Central Issue in Case Intruded Upon Province of the Jury
By Kimber Cooley, Staff Writer
Failure to exclude expert opinion testimony by the lead detective as to the key issue in an attempted murder case—whether the defendant fired the bullet that struck the victim—was prejudicial error requiring reversal of the defendant’s conviction and a remand for a new trial, Div. One of the Fourth District Court of Appeal held yesterday.
The opinion, authored by Presiding Justice Judith McConnell, found error in San Diego Superior Court Judge Jeffrey F. Fraser’s admission of testimony.
A San Diego jury convicted gang member George Thomas Rouston Jr. of premeditated attempted murder, conspiracy to commit murder, and shooting at an occupied vehicle, as well as finding true several gang and firearm enhancements, resulting from a gang-related drive-by shooting.
Identity of Shooter
On the night of the shooting, Rouston was the passenger in a car being driven by another gang member, when gunfire erupted from their vehicle and struck the victim, “O.Z.,” in a separate vehicle, hitting him in the face with a single bullet. Multiple eye-witnesses to the shooting testified at trial and there was conflicting evidence as to who fired the guns—the driver, Rouston, or both men.
The lead detective on the case was San Diego Police Department Detective Kevin Jankowski who testified five separate times during the four-day trial, and served as the “gang expert” for the prosecution. Jankowski opined, over objection, that Rouston fired the shot that struck the victim in the face, based on his experience and other witnesses’ testimony.
On appeal, Rouston put forth multiple claims of error, including the contention that Fraser erred by allowing Jankowski’s improper expert opinion testimony as to Rouston having fired the shot that struck the victim.
Evidence Code §801
McConnell explained that Evidence Code §801 governs expert testimony and provides:
“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:
“(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and
“(b) Based on matter…that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”
Jury’s Role
Under that section, she said, expert testimony must be regulated. McConnell wrote:“[W]e conclude that Jankowski provided improper opinions on Rouston’s guilt. His explicit testimony that Rouston fired the weapon that wounded O.Z. was ‘too helpful’ and supplanted the jury’s role.”
Finding the error prejudicial, requiring reversal, the presiding justice said:
“Jankowski opined on the central issue in the case—whether Rouston fired a gun. This improper testimony established the specific intent necessary to prove premeditated attempted murder and conspiracy to commit murder under either a direct perpetrator or aider and abettor theory….Evidence that Rouston fired a gun also constituted direct evidence of a violation of [Penal Code] section 246, firing at an occupied vehicle, and the firearm enhancements….”
She said that without the improper testimony, “there is a reasonable probability the jury would have reached a different result.”
Rejecting the Attorney General’s argument that other theories of liability supported the conviction, she wrote:
“The Attorney General argues that, in spite of the error in admitting Jankowski’s improper testimony, Rouston would still have been convicted as an aider and abettor or co-conspirator without proof that he fired a gun. However, without this evidence, it is not clear the jury would conclude Rouston harbored the specific intent to kill required for the attempted murder and conspiracy to commit murder convictions, or to establish Rouston’s intent to shoot at an occupied vehicle.”
The case is People v. Rouston, 2024 S.O.S. 628.
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