* State of Washington v. Bruce N. Lang

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
BRUCE N. LANG,
Appellant.
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No. 36397-0-III
PUBLISHED OPINION
PENNELL, A.C.J. — It is well established that a prosecutor cannot comment on a
witness’s veracity or elicit testimony to the same effect. Yet the prosecutor at Bruce
Lang’s trial did just that. After Mr. Lang took the stand, recanted his prior confession,
and accused the State of threatening and poisoning him, the prosecutor elicited testimony
from a psychologist that Mr. Lang was a diagnosed malingerer (i.e. a liar) and that he
engaged in malingering on the stand. This was a flagrant error of constitutional
proportions. Regardless of whether Mr. Lang’s testimony was outrageous or even
perjurious, the prosecutor was not entitled to flout the rules restricting opinion testimony.
The improper testimony elicited by the prosecutor needlessly jeopardized the
validity of the case against Mr. Lang. Had Mr. Lang’s testimony been plausible or
even relevant to his stated defense, we would readily reverse. But given the unique
circumstances of this case, we will not do so. Simply put, there was no prejudice.
FILED
FEBRUARY 20, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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No. 36397-0-III
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The State is cautioned that the mistake committed here should not be repeated in future
cases.
FACTS
Mr. Lang victimized an individual named Torry Delong. Mr. Delong was walking
down an alley with his bicycle and a rolling suitcase when he saw a man and woman, later
identified as Mr. Lang and his girlfriend. Mr. Lang was motioning for Mr. Delong to
come toward him.
Mr. Delong approached Mr. Lang. Mr. Lang then grabbed Mr. Delong and put
Mr. Delong’s “right arm behind [his] back, [and] spun [him] around.” 1 Report of
Proceedings (RP) (Sept. 5, 2018) at 245. Mr. Lang stabbed Mr. Delong in the back and
pushed him to the ground before making off with Mr. Delong’s bicycle and suitcase. The
stabbing occurred “very fast.” Id. at 232. Mr. Delong ran to a bystander and pulled his
shirt up to reveal “a bad wound with blood everywhere.” Id. at 233-34. The bystander
helped Mr. Delong obtain medical attention.
Mr. Lang was not initially identified as Mr. Delong’s assailant. The case went
unsolved for approximately one year. The police finally contacted Mr. Lang after
receiving a tip. Once contacted, Mr. Lang agreed to a recorded interview and admitted
attacking and robbing Mr. Delong.
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No. 36397-0-III
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3
The State charged Mr. Lang with one count of first degree robbery and one count
of first degree assault. During the pretrial phase of the case, Mr. Lang underwent a
competency evaluation and was deemed competent to stand trial.
At trial, a tape recording of Mr. Lang’s confession was admitted into evidence.
The State also presented testimony from both Mr. Delong and Mr. Lang’s girlfriend. Each
identified Mr. Lang as the perpetrator of the stabbing and robbery. Mr. Lang’s attorney
did not challenge the identification of Mr. Lang as the assailant. Instead, the defense
position was that Mr. Lang’s conduct was not sufficiently egregious to constitute robbery
or first degree assault.
Mr. Lang took the stand and testified in his defense. He provided a somewhat
rambling statement, denying any involvement in the attack.1 Mr. Lang’s attorney did not
ask any questions about mental health and Mr. Lang did not provide any such information
sua sponte.
The prosecutor engaged Mr. Lang in a lengthy cross-examination. During this
portion of his testimony, Mr. Lang admitted to his prior confession, but complained he
was poisoned. Mr. Lang also quarreled with the prosecuting attorney and accused her of
making threats. Over a defense objection, the prosecutor asked Mr. Lang about his mental
1 Mr. Lang’s direct testimony spans less than five pages of the trial transcript.
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No. 36397-0-III
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4
health history and tried to get Mr. Lang to concede he was diagnosed as malingering.2 Mr.
Lang denied the diagnosis. Mr. Lang’s attorney did not conduct any redirect examination.
The defense rested after Mr. Lang’s testimony.
During rebuttal, the State sought to call one of the psychologists who examined
Mr. Lang during the competency process. The psychologist was in the courtroom during
Mr. Lang’s testimony. The State proffered the psychologist would testify Mr. Lang had
been diagnosed as a malingerer. According to the State, this testimony was relevant to
Mr. Lang’s credibility and his claims that he was poisoned and threatened. The defense
objected and was overruled.
The psychologist testified Mr. Lang did not suffer from a mental disease or defect,
such as schizophrenia or bipolar disorder. Instead, Mr. Lang was diagnosed with
“[m]alingering, antisocial personality, and borderline personality disorder.” 2 RP (Sept. 6,
2018) at 420-21. The psychologist explained the traits of antisocial disorder include
“[l]aw breaking, lying, recklessness, irritability, [and] irresponsibility.” Id. at 421.
2 “The essential feature of malingering is the intentional production of false or
grossly exaggerated physical or psychological symptoms, motivated by external
incentives such as avoiding military duty, avoiding work, obtaining financial
compensation, evading criminal prosecution, or obtaining drugs.” A M. PSYCHIATRIC
A SS’ N , D IAGNOSTIC AND STATISTICAL MANUAL OF MENTAL D ISORDERS 726 (5th ed.
2013).
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No. 36397-0-III
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He described malingering as “faking.” Id. at 422. The psychologist testified he observed
Mr. Lang’s behavior on the witness stand and opined this behavior was consistent with
the traits of antisocial personality disorder and malingering.
The jury convicted Mr. Lang of first degree robbery and the lesser included charge
of second degree assault.3 At sentencing, the parties agreed Mr. Lang’s second degree
assault conviction merged into the first degree robbery conviction. The court sentenced
Mr. Lang to the maximum term of confinement within the standard range for first degree
robbery. It entered convictions on both counts. Mr. Lang brings this timely appeal from
that judgment and sentence.
ANALYSIS
The only contested issue on appeal is the propriety of the expert testimony
regarding Mr. Lang’s credibility. We review the trial court’s decision to allow this
rebuttal testimony for abuse of discretion. State v. Horn, 3 Wn. App. 2d 302, 310,
415 P.3d 1225 (2018).
The State claims the psychologist’s testimony was permissible under the “invited
error doctrine;” according to the State, Mr. Lang invited testimony from the psychologist
3 The State charged Mr. Lang with first degree assault. However, the court
included an instruction for both first and second degree assault at defense counsel’s
request.
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No. 36397-0-III
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by testifying in a bizarre and outrageous manner. This analysis is inapt. The invited error
doctrine is a theory of appellate relief. State v. Rushworth, No. 36077-6-III, slip op. at
12-13 (Wash. Ct. App. Feb. 20, 2020), https://www.courts.wa.gov/opinions/pdf/360776_
pub.pdf. It prohibits a party from relief on appeal after inducing the commission of error
at trial. See In re Pers. Restraint of Coggin, 182 Wn.2d 115, 119, 340 P.3d 810 (2014).
Invited error is not a substantive rule of evidence applicable to trial courts. It is therefore
irrelevant to the propriety of the evidence proffered at trial.
The State also contends the “open door doctrine” justified the psychologist’s
testimony. Unlike invited error, the open door doctrine is a substantive evidentiary
principle. However, its scope is limited. The open door doctrine is nothing more than a
theory of expanded relevance. Rushworth, No. 36077-6-III, slip op. at 8. It applies when a
defendant waives the benefit of an evidentiary or constitutional protection by broaching a
topic that would ordinarily be off limits. Id. Once a defendant opens the door to an
otherwise prohibited topic, the State can introduce relevant responsive evidence.
Although the open door doctrine provides the State with a broader landscape of relevant
evidence, it does not provide license to disregard constitutional and evidentiary
limitations on the admission of evidence. See State v. Jones, 144 Wn. App. 284, 295,
183 P.3d 307 (2008).
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No. 36397-0-III
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Mr. Lang’s trial did not implicate the open door doctrine. By testifying, Mr. Lang
placed his credibility in question. See ER 607. But the same is true of any witness. Id.
Once Mr. Lang’s credibility was at issue, the State was entitled to deploy tools of
impeachment. Such tools must, however, be permissible under the rules of evidence and
the federal and state constitutions.
Several evidentiary rules barred the State from impeaching Mr. Lang with the
psychologist’s testimony. Under ER 608(a), a witness’s character for untruthfulness may
be elicited only through reputation testimony. Opinion testimony is prohibited. See State
v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (plurality opinion) (citing now
deleted comment to ER 608)). While the rules of evidence allow expert testimony on
technical or scientific matters in order to help jurors understand the evidence, ER 702,
witness credibility is not a scientific or technical concept. It is a subject at the very heart
of juror expertise. See State v. Whelchel, 115 Wn.2d 708, 724, 801 P.2d 948 (1990); State
v. Suarez-Bravo, 72 Wn. App. 359, 366, 864 P.2d 426 (1994). An expert may sometimes
appropriately provide jurors with tools for assessing witness credibility. See, e.g., State v.
Kirkman, 159 Wn.2d 918, 929-30, 932-33, 155 P.3d 125 (2007) (concluding expert
permissibly testified that child’s account of sexual touching was consistent with abuse);
State v. Froehlich, 96 Wn.2d 301, 306-07, 635 P.2d 127 (1981) (holding expert testimony
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No. 36397-0-III
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explaining mental condition permissible to impeach witness whose “mental disability . . .
is clearly apparent and [their] competency is a central issue in the case”).4 But an explicit
statement about a witness’s believability is prohibited. State v. Montgomery, 163 Wn.2d
577, 591, 183 P.3d 267 (2008); see also Kirkman, 159 Wn.2d at 938.
The psychologist’s testimony here also threatened Mr. Lang’s constitutional right
to an independent jury determination of guilt. Kirkman, 159 Wn.2d at 927; State v. Dunn,
125 Wn. App. 582, 592-93, 105 P.3d 1022 (2005). Opinion testimony on a core issue of
guilt or witness veracity is a form of vouching. See State v. Alexander, 64 Wn. App. 147,
154, 822 P.2d 1250 (1992). Vouching is always inappropriate and “‘unfairly prejudicial
to [a] defendant.’” State v. Hager, 171 Wn.2d 151, 158-59, 248 P.3d 512 (2011) (quoting
Kirkman, 159 Wn.2d at 927). And it is especially dangerous when such testimony comes
from a witness with a heightened aura of authority, such as a police officer or an expert.
See Kirkman, 159 Wn.2d at 928. When the State elicits vouching testimony it suggests
its witness holds superior ability to assess guilt or innocence, inviting the jury to defer to
this expertise instead of engaging in an independent assessment of the evidence. Because
4 For example, had the psychologist merely testified that Mr. Lang did not suffer
from a mental disease or defect, ER 608(a) would not have been implicated. Assuming
the prosecutor could establish such testimony was not merely collateral, it might have
been a proper tool to help the jury evaluate Mr. Lang’s testimony.
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No. 36397-0-III
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vouching testimony invades the province of the jury and jeopardizes the right to a fair
trial, it is constitutionally prohibited. See City of Vancouver v. Kaufman, 10 Wn. App. 2d
747, 765-66, 450 P.3d 196 (2019); Dunn, 125 Wn. App. at 592-93; State v. Barr, 123 Wn.
App. 373, 380-81, 98 P.3d 518 (2004); State v. Dolan, 118 Wn. App. 323, 329, 73 P.3d
1011 (2003).
When, as here, an adverse evidentiary ruling implicates a defendant’s
constitutional rights, we must engage in an exacting assessment of prejudice. Under
the applicable standard, reversal is required unless the State demonstrates by clear and
convincing evidence that the error was harmless beyond a reasonable doubt. State v. Watt,
160 Wn.2d 626, 635, 160 P.3d 640 (2007).
A careful review of the record reveals there was no risk of prejudice from the
improper expert testimony. Mr. Lang’s trial testimony was patently not credible; it was
inconsistent with his prior statements and the statements of all the other witnesses,
including Mr. Lang’s girlfriend. Mr. Lang’s testimony was also inconsistent with his
attorney’s theory of defense, which was that Mr. Lang confronted Mr. Delong, but the
interaction did not amount to robbery and first degree assault. Though the State’s
approach to impeachment was completely inappropriate, we perceive no risk that the
testimony impacted the jury’s guilty verdicts.
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No. 36397-0-III
State v. Lang
While we sustain the jury's verdicts, Mr. Lang's judgment of conviction must be
revised. Mr. Lang was convicted of first degree robbery and second degree assault based
on the same underlying conduct. Double jeopardy 5 prohibits this outcome. In re Pers.
Restraint of Francis, 170 Wn.2d 517, 524-25, 242 P .3d 866 (201 O); State v. Freeman,
153 Wn.2d 765, 770-71, 108 P .3d 753 (2005). Imposition of concurrent sentences is not
sufficient to address double jeopardy concerns. Instead, the court must completely dismiss
the lesser charge. State v. Villanueva-Gonzalez, 175 Wn. App. 1, 8, 304 P.3d 906 (2013).
CONCLUSION
The jury's verdict is affirmed. This matter is remanded with instructions to dismiss
Mr. Lang's conviction for second degree assault.
Q.
Pennell, A.C.J.
WE CONCUR:
Fearing, J.
5 U.S. CONST. amend. V; WASH. CONST. art. I,§ 9.
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