No. 14-0639 - State of West Virginia v. Darnell Carlton Bouie 

FILED 

June 16, 2015
 

RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

Davis, Justice, dissenting: 

In this proceeding, the majority opinion affirmed the defendant’s convictions 

for felony-murder and conspiracy to commit burglary. In doing so, the majority opinion 

rejected the defendant’s assignment of error involving a police officer’s testimony that a pair 

of sneakers the officer bought from eBay matched the sneakers worn by the defendant and 

matched a sneaker print found at the crime scene. For the reasons set out below, I dissent.1 

There is no dispute in this case that the investigating police officer purchased 

a pair of sneakers from eBay that the officer believed were similar to those worn by the 

defendant. The officer purchased the sneakers because of a sneaker print found at the crime 

scene and a videotape showing an unidentified person wearing unidentifiable sneakers at the 

crime scene. The officer hoped that the sneaker print found at the crime scene would match 

the sneakers he bought from eBay. However, the FBI concluded that the crime scene sneaker 

print did not match the sneakers bought from eBay. Although it was determined prior to trial 

that the eBay sneakers had no relationship to the sneaker print found at the crime scene, the 

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The defendant raised several other issues which I believe were correctly resolved by 

the majority opinion. 

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trial court still permitted the State to present evidence of the eBay sneakers to the jury 

through the investigating officer. 

The trial court permitted the investigating officer to render a lay opinion about 

the sneakers purchased on eBay under Rule 701 of the West Virginia Rules of Evidence.2 

This Court has held that 

[i]n order for a lay witness to give opinion testimony 

pursuant to Rule 701 of the West Virginia Rules of Evidence (1) 

the witness must have personal knowledge or perception of the 

facts from which the opinion is to be derived; (2) there must be 

a rational connection between the opinion and the facts upon 

which it is based; and (3) the opinion must be helpful in 

understanding the testimony or determining a fact in issue. 

Syl. pt. 2, State v. Nichols, 208 W. Va. 432, 541 S.E.2d 310 (1999), modified on other 

grounds by State v. McCraine, 214 W. Va. 188, 588 S.E.2d 177 (2003). It is clear that the 

testimony of the investigating officer did not satisfy the test under Rule 701 for the admission 

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Rule 701 of the West Virginia Rules of Evidence states that 

[i]f a witness is not testifying as an expert, testimony in 

the form of an opinion is limited to one that is: 

(a) rationally based on the witness’s perception; 

(b) helpful to clearly understanding the witness’s 

testimony or to determining a fact in issue; and 

(c) not based on scientific, technical, or other specialized 

knowledge within the scope of Rule 702. 

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of a lay opinion. 

To begin, the majority opinion stated that the investigating officer was allowed 

to render a lay opinion as follows: 

The circuit court permitted Sergeant Cox to offer his lay 

opinions that the [Ebay] shoes were similar in color and design 

to the shoes worn by [the defendant] in the surveillance videos, 

and that the outsole pattern exhibited on the [Ebay] shoes was 

similar to the footwear impressions left beneath [the victim’s] 

window. 

The officer’s opinion testimony did not meet the first test under Rule 701. That is, the 

investigating officer did not have personal knowledge or perception of the shoes the 

defendant was wearing on the night of the incident. He did not personally observe the 

defendant on the night in question. The investigating officer merely viewed barely visible 

video footage of footwear of an unidentified person on the night of the incident–something 

the jury was able to view. 

It has been noted that Rule 602 of the West Virginia Rules of Evidence 

provides the basis for the first prong of the test under Rule 701. See United States v. Hoffner, 

777 F.2d 1423, 1425 (10th Cir. 1985) (“The perception requirement stems from F.R.E. 602 

which requires a lay witness to have first-hand knowledge of the events he is testifying about 

so as to present only the most accurate information to the finder of fact.”). A lay witness may 

testify only about matters within his or her personal knowledge. This principle is embodied 

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under Rule 602, where it is expressly stated that “[a] witness may testify to a matter only if 

evidence is introduced sufficient to support a finding that the witness has personal knowledge 

of the matter.” The only witnesses who were able to render an opinion regarding the crime 

scene sneaker print and the eBay sneakers were the State’s FBI expert witnesses–and they 

testified to not being able to render the opinion given by the investigating officer. 

In addition to failing to satisfy the first prong of the test under Rule 701, the 

police officer’s testimony did not satisfy the second prong. That is, there simply was no 

rational connection between sneakers purchased arbitrarily from eBay and the sneaker print 

found at the crime scene. Moreover, insofar as no one could identify the sneakers worn on 

the video tape, no rational connection existed with the eBay shoes. With respect to the third 

factor of the test, the police officer’s opinion testimony about the defendant’s footwear was 

not helpful, but rather suggestive, to the jury. This Court has recognized that 

[w]hen the opinion of a witness, not an expert, is offered 

in evidence, and he is no better qualified than the jurors to form 

an opinion with reference to the facts in evidence and the 

deductions to be properly drawn from such facts, his opinion 

evidence is not admissible. 

Syl. pt. 4, Overton v. Fields, 145 W. Va. 797, 117 S.E.2d 598 (1960). That is, “where the 

juryis capable of drawing their own conclusions, the lay witness’s testimony is unhelpful and 

thus should not be permitted.” Nichols, 208 W. Va. at 440, 541 S.E.2d at 318 (internal 

quotations and citation omitted). 

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It has been correctly stated that the helpfulness requirement is designed to 

provide “assurance against the admission of opinions which would merely tell the jury what 

result to reach.” United States v. Rea, 958 F.2d 1206, 1215 (2d Cir. 1992). In the instant 

case, the investigating officer told the jury that, in spite of what the FBI experts said and the 

instruction given by the trial court, the defendant wore the eBay sneakers, and those sneakers 

matched the crime scene shoe print. Such testimony was far too prejudicial for this Court to 

apologize in footnote 3 of the opinion by stating that the admission of this damning evidence 

was “harmless.” 

In view of the foregoing, I dissent. 

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