his conviction on one count of a three count indictment the account he was convicted on different deprivation of rights under color while twenty eight us c two forty two our appeal is we believe that the trial court abused its discretion in allowing the government's expert we've often sat back here's the problem why isn't that question a limited instruction was given however with one examines the record it will see that the government testified and i think the united states has argued that under rule seven hundred and four it's permissible for ready an expert witness to give an opinion on the ultimate issue however this is a specialized point of wall probable cause that mr lynskey the government's expert witness was allowed to espouse his opinion on in fact if justices look at aged twenty five of the government's brief the government says you know mentioned probable cause or used the term willfully in the quote if you look at the pellets reply brief on page three mr denbeaux who was the chief trial counsel for the government on that case asked this question again i'm quoting i'm going to ask having reviewed the x having reviewed the reports in your expert opinion d talking to the judge outside the presence of the jury and then when i went and look at what he actually asked he didn't mention probable cause he just asked did  issue is that that the answer given was when the fact that their roots the belief that there was no probable cause was suggested to the the communications here and witness was allowed not to say that in light of the fact that all the phone calls the body cam and everything else was in front of the jury i mean why wasn't this harmless even if improper it wasn't harmless because this is a three can indictment count two had to do with whether or not we'll duke made interest causing injury in retaliation point is mr duke's testified for five hours at trial the jury heard what he testified to in fact he testified that there were five telephone calls the st two he he took after the nd call he was annoyed he said looking at the totality of circumstances the rd call made to webster county he heard the recording he was purpose it seemed each car had had a legitimate purpose of trying to figure out if he could go on mister and the next morning to pick up a friend so what is the scintilla of evidence that suggests there may have not  complaint he continued the next four calls he asked the same thing in that i think that's the problem with the st call may have been legitimate that after that calling and calling and calling to three different three different agencies and this is a small area it's not like there are tons of operators to take these calls that's that's the problem that's the scintilla of evidence that that we're looking at in fact the government's expert witness did not have an or wasn't solicited for his opinion on counts two and three i understand that we're not here to deal with two and three but trying to show justices why it wasn't harmless error to allow  have hard to get into a jury's mind it could be it could be for any set of reasons all we do is look at the evidence in the record and it seems to me that the question you have any answer is looking at the five or five calls that i'm aware of four of them that were actually played right only four were played for the jury there were five made but only four i believe or were played so looking at the four calls that were played the body cam and the testimony wait why isn't it harmless that's what i don't understand why is that evidence not determinative it's not determine if because juries take stock of what experts say in this case this expert told the jury invaded the province of the judge the judge should have instructed on the all not the not the expert witness your honor and so i understand and i understand the judge gave however if one looks at the record it will it will see that just the judge giving a limited instruction did not cure this problem so i guess that's my point that answers my question  admission that the government probably will argue that there was harmless error that under rule seven o four mr zelinsky could give an opinion and i think we've talked about this what happened there probable cause is grounds for belief supportable less than prima fascia evidence but more than suspicion i think back to back to that point dukes testified that after the nd call he he was annoyed he thought that there was a risk communications committed and then the next three calls  wry understand which ones they were so you're referencing the other three calls can we consider those in the determination of whether there was a legitimate purpose that's part of the totality of circumstances in this case that he was like this well if you're a police officer in webster county kentucky when you have been you have been formed by the dispatcher of the state police two times by the webster county dispatcher once that individual has been making those calls i believe that or that he acted willfully he did he did testify right that he didn't have a legitimate reason to arrest well even when certainly he stated that he did not think that there was justification for dukes to wrestle page because the little pages called it up the ultimate issue because the whole question in this case is whether or not he had probable cause to arrest him at the time he went to his home and when he based his decision on th that has a specialized legal meaning however the result would still be the same because even if any error associated with and meetings or lizzie's testimony under those facts the  harmless because of the powerful testimony that duke's provided at trial the the core highlighted the recordings of the pages calls and all the other evidence that was presented to the jury but do you own testimony as mike mr butler testified testified for five hours and he provided very strong evidence that he did not have probable cause to arrest littlepage he testified that he understood the elements for harassing communication one of which is that the communication must not serve a legitimate purpose he agreed with us citizens have a right to complain about law enforcement officers who exceed  that littlepage called the providence police department to seek information about filing a complaint against duke's for exceeding his authority in addition dick's testified that he exceeded his a by ordering littlepage not to drive on a public road and that that part of little page's complaint was legitimate if there was probable cause you can see he could have arrested him i'm sorry if there was probable cause you c could have arrested him if there was probable cause as yes so then why does it matter which calls were actually in  kentucky law he needed to be present for those calls but that's why police officers are often are present when they make a call as to probable cause well even if if you consider the other calls the record shows as pointed out that there weren't those calls had a legitimate purpose so i understand that i'm assuming they didn't from my question like he could let's say he could rationally conclude that there was probable cause considering that all four or five call that's my question yes irrespective of whether he received the calls or yes he could but here as you pointed out that we have strong evidence in the record showing that all the dispatchers including those late latter calls all the dispatchers testified that little page's calls had no legitimate purpose so even to be considered all the calls the little page's calls wouldn't meet the definition of harassing communication and consequently dupes would not have probable cause to arrest them let me see some of the points that mr butler suggested impermissible legal conclusion under taurus as this court stated in taurus whether testimony contains all impermissible legal conclusion turns on phrasing and here he was never asked  how does how does his giving an ultimate has given a conclusion on that particular facts of this case in any way go to strange i was kid so the st the government's theory for why this testimony should be introduced justification for objects to arrest littlepage was part of that testimony about duke's training the fact that i was a part of the testimony about the training i get that all the training testimony is judged murky but how could a question about whether it was legitimate to arrest him in this particular circumstance it was the circumstantial evidence that that he knew that it was improper to arrest littlepage and he did so anyway he knew that this communication he did not mean your os the line right so you can testify all about the facts and as a result that he understood it and he may have been willful in that sense but when you're testifying about whether or not there was probable cause in this case the masses that seem to i mean you you admit early on that if you used the magic words probable cause that would have been a problem so i mean what was the exact language i can remember there was he said something to be effect that there was no reason to arrest him or whether question which was their justification to arrest right and he said there wasn't because he didn't think that if you look at the context  think that the calls met the definition for harassing communicate that means there's no probable cause right when the jury i mean only recently been interprets that i'm sorry to interrupt you but the jury then interprets that to mean there's no probable cause no  because the jury's still needed what the jury needed to do determine in the timing whether dukes have probable cause it's not just whether the harassing communication had a legitimate purpose the jury had to decide whether an objective  reasonable officer would conclude based on this surrounding circumstances that there was a fair probability that the person being arrested had committed a crime or was committing a crime for example there are situations where that defendant may be mistaken about probable cause let's say an example where that officer arrest  thing i don't think one conclusion follows the other all the time so there was an extra step that the jury needed to take and testimony only got them so far the jury could infer from this testimony was an abuse of discretion that any air associated with his testimony it was harmless as as we as i discussed earlier because of duke's own testimony in this case in addition to the other  evidence recordings of little page's calls and also testimony by the dispatchers if you consider all the dispatchers that dispatchers for the webster county sheriff's department and kentucky state police both testified that they did not  charge you how you can say that but the expert testifies on one count not the other two he gets acquitted on the other two what's the matter with his argument that absent that testimony he wouldn't have been acquitted but you may note you may not agree with the ultimate conclusion but rights i think what bothers me the most about this case is understand you have a job to do but your steadfast argument that this was ted proper testimony seems to be pretty problematic in this case have you found any other case where the where the prosecutor brought in a person who trained a police officer to tell to tell the jury that well i trained him on this so therefore b if if he violated what i had trained him must must  our brief where there was an expert witness in those cases when they were being offered to prove a state of mind did the the expert then take the final step that was taken here to say therefore i think it was willful no i don't think that the expert can say therefore i think it's willful because if you actually say the word willful under torture as then you are you know including a legal conclusion in your testimony but if you don't you just seems like this is a huge game where under probable cause you can define probable cause and you can say what all the elements are so therefore you can bring in an expert the that in essence testifies that was probable cause but just doesn't use the same word and then you're saying that you're making the same i thought as i said courts have recognized traffic is now and the courts have recognised that such evidence of training is it's very it's very useful to show whether the defendant willfully or you could have done all that without getting into such trouble in the waters especially with such a strong case i mean at some point just good practices indicate the prosecutor should not ask these questions and i will take that going forward but as you pointed out we have a strong case here and the the court should affirmed the conviction that's what's still troublesome about this the stronger the case is it just seems to me that in my experience the more the government stays away from crossing some the major in line and that's what that's where this case doesn't make a lot of sense i think you have different ways you could you could say that the bottom line is that your last piece testimony did not contain a legal and mission of that testimony it was harmless thank you counsel thank you krister butler you have two minutes going to duke's testified at trial that after the nd phone call he believed he had probable cause to make an arrest that the other three phone calls that were th