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Lay Opinion Testimony of Guard that Prisoner was Attempting to Throw Other Guard Over Railing Admissible

On April 30, 2008, the California Court of Appeals for the Fifth District affirmed the conviction of a California prisoner for assault with malice aforethought on a guard.

Michael Gaddy was charged with assault after an altercation between him and Mike Avila, a guard at the Corcoran State Prison. Gaddy attempted to throw Avila over a railing onto a lower tier following an attempted cell search that went bad.

Gaddy had argued that he was being harassed by Avila and that the submission of lay testimony that he was attempting to throw Avila over the rail was error. The court of appeals disagreed, finding no error in the trial court permitting lay opinion from another guard that Gaddy appeared to be attempting to throw Avila over the rail. Gaddy’s conviction was accordingly affirmed. See: People v. Gaddy, Cal. App., 5th Dist., No. F052491 (April 30, 2008).

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Related legal case

People v. Gaddy

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL GADDY, Defendant and Appellant.



April 30, 2008, Filed





* Before Cornell, Acting P.J., Gomes, J. and Hill, J.

Defendant Michael Gaddy, a prison inmate, was convicted of assault with malice aforethought and by means of force likely to produce great bodily injury while undergoing a life sentence (Pen. Code, § 4500; count 3) 1 and battery on a non-confined person (§ 4501.5; count 4). Defendant was acquitted of attempted murder of a peace officer (§ 217.1, subd. (b); count 1) and attempted murder (§§ 664,187, subd. (a); count 2). The jury also found true enhancement allegations that defendant had a prior serious felony conviction (§ 667, subd. (a)(1)) and three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant was sentenced [*2] to prison for a total of 32 years to life. On appeal, defendant contends the trial court erred in admitting lay opinion evidence. We will affirm.


1 Further statutory references are to the Penal Code unless otherwise specified.


On November 13, 2005, defendant was an inmate at the California Substance Abuse Treatment Facility (SATF) at Corcoran State Prison in Kings County. Defendant shared cell 203 with Freddy Green. Cell 203 was located on the second tier of the building in which they were housed. The second tier was 15 feet above the lower tier and bordered by a 43-inch railing.

Around 2:50 p.m., Correctional Officers Mike Avila and Cecilia Clausing went to conduct a search of cell 203. After the control booth officer remotely opened the cell door, Officer Clausing told the inmates that their cell was to be searched. Defendant responded, "hell no! You guys ain't coming in here."

Officer Clausing told defendant and Green to step out of the cell so that it could be searched. Defendant and Green responded by assuming an "aggressive stance" or "bladed stan[ce]" with "one foot in front of the other, elbow bent, fist clenched."

Officer Clausing sounded her personal alarm and both Officer [*3] Clausing and Officer Avila ordered the inmates to get down in a prone position. When the inmates failed to comply, the officers took their canisters of pepper spray from their belts and sprayed the inmates' faces.

Green, who was sprayed once in the face by Officer Avila, complied immediately and "proned out." Officer Clausing sprayed defendant in the face several times, discharging her entire canister of pepper spray, before defendant got down on his knees. Officer Avila then instructed defendant to get into a prone position.

While Officer Clausing handcuffed Green, Officer Avila attempted to handcuff defendant. Defendant pushed up, turned, and punched Officer Avila in the left eye. Stunned, Officer Avila backed up further down on the tier. Defendant pursued Officer Avila, swinging at the officer's head and facial area. Officer Avila slipped on water or pepper spray and fell on his back, hitting his head.

Defendant jumped on top of Officer Avila and continued to swing at his head and face. Eventually, Officer Avila managed to get out from under defendant. When he got up onto his feet, Officer Avila was next to the railing. Defendant wrapped his arms around Officer Avila's midsection and [*4] tried to lift him. Officer Avila thought defendant was trying to lift him over the railing. Officer Clausing, who was trying to pull defendant off Officer Avila, also described defendant as putting his arms around Officer Avila's torso and lifting him up over the railing. She noted that Officer Avila was leaning back with his back against the railing, as defendant was trying to pick him up.

Fearing for his life, Officer Avila held on to the railing to prevent himself from going over and falling to the concrete floor below. In the meantime, other officers arrived and helped assist Officer Clausing subdue defendant.


Defendant and Green both testified, in essence, they were victims of harassment by the correctional officers. According to the inmates, after they awoke around 6:30 a.m., they were taken to a different building while their cell was searched. After they were brought back to their cell around 1:30 p.m., they started to clean up and put away items that had been removed and restored to them after the search.

When Officer Avila and Officer Clausing came to search their cell that afternoon, defendant and Green asked why their cell was being searched and complained that their [*5] cell had already been searched that day and their cell was still a mess from the earlier search. They also requested to speak with the sergeant about the situation. Defendant and Green both denied that they had pornographic materials in the cell or coverings on their windows, which was the reason the officers gave in their testimony for why the search was to be conducted.

Officer Clausing declined to call the sergeant and ordered the inmates to step out of their cell. Although defendant and Green admittedly refused to comply with her repeated orders, they denied that they assumed an aggressive stance towards the officers. According to the inmates, when they refused to step out of their cell, Officer Clausing stepped into the cell and started spraying them with pepper spray. Green got down on his stomach, and defendant got down on his knees and then tried to maneuver down to his stomach in the small cell.

As defendant tried to get into the prone position, Officer Avila slammed defendant's head on the ground more than once and dragged him out of the cell. Defendant stood up and started struggling with Officer Avila, trying to get the officer off him. Defendant denied trying to punch the [*6] officer. They continued to struggle outside the cell and defendant ended up with his back against the railing and Officer Avila in front of him. They continued to struggle and "wrestle" together until other officers arrived. Defendant denied that he ever tried to pick up Officer Avila.


Defendant contends the trial court erred in permitting the prosecutor to solicit the lay opinion of Officer Avila and Officer Clausing that defendant was trying to lift Officer Avila over the railing. We disagree.

Witnesses must have personal knowledge of a subject for their testimony about it to be admissible unless they are experts. (Evid. Code, § 702, subd. (a).) "If a witness is not testifying as an expert, his [or her] testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [P] (a) Rationally based on the perception of the witness; and [P] (b) Helpful to a clear understanding of his [or her] testimony." (Evid. Code, § 800.)

"Lay opinion testimony is admissible where no particular scientific knowledge is required, or as 'a matter of practical necessity when the matters ? observed are too complex or too subtle [*7] to enable [the witness] accurately to convey them to court or jury in any other manner.' [Citations]." (People v. Williams (1988) 44 Cal.3d 883, 915.) Courts have approved lay opinion testimony about such matters as whether a person appeared to be under the influence of alcohol or narcotics (id. at pp. 914-915) whether a person appeared to be "given to lewd conduct with children" (People v. McAlpin (1991) 53 Cal.3d 1289, 1309), and whether a person appeared to understand a conversation (People v. Medina (1990) 51 Cal.3d 870, 886-887). The decision whether to admit lay opinion testimony is within the discretion of trial court and will not be disturbed "'unless a clear abuse of discretion appears.'" (People v. Mixon (1982) 129 Cal.App.3d 118, 127.)

A witness may not express an opinion as to the innocence or guilt of the defendant, however. (See People v. Torres (1995) 33 Cal.App.4th 37, 46.) This is not because guilt is the ultimate issue of fact, because opinion testimony often goes to the ultimate issue in the case. (Id. at p. 47.) Rather, the rule is premised upon the belief that a witness's opinion regarding the guilt or innocence of a defendant is of no assistance to the trier of [*8] fact. The "trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt." (Ibid.)

Here, the trial court could reasonably conclude that Officer Avila's and Officer Clausing's testimony about what defendant appeared to be doing when he had his arms around Officer Avila was admissible lay opinion. Their opinion that defendant was trying to lift defendant over the railing was, in essence, a description of defendant's behavior. They were attempting to describe how defendant appeared to be lifting the officer when he had his arms wrapped around him, as opposed, say, to embracing him like a boxer might when tired during a fight. Indeed, Officer Clausing clarified on cross-examination that it did not appear like defendant and Officer Avila were simply in "an active bear-hug." The trial court could reasonably find that allowing the officers to express their observations as an opinion was "'a matter of practical necessity'" because defendant's mannerisms were "'too subtle to enable [the officers] accurately to convey them ? in any other manner.' [Citations]." (People v. Williams, supra, 44 Cal.3d at p. 915.) The officers' statements conveyed a [*9] description of defendant's appearance and mannerisms to the jury which met both of the requirements of Evidence Code section 800: it was rationally based on their own perception, and it was helpful to a clear understanding of their testimony.

We also find instructive People v. Farnam (2002) 28 Cal.4th 107. There, the California Supreme Court found that the trial court acted within its discretion by permitting a correctional sergeant to testify that the defendant stood "'in a posture like he was going to start fighting.'" (Id. at p. 153.) The court explained that the sergeant's testimony "was based on his personal observations that [the] defendant was being 'very defiant' about the court order and physically stood with his hands at his side and left foot forward." (Ibid.) Furthermore, the court noted that such perceptions are within common experience, and certainly within the experiences of the correctional sergeant who testified. (Ibid.) Similarly, here, it is within common experience to perceive if someone makes an active attempt to lift someone rather than simply wrap his arms around him during the heat of a physical struggle. Moreover, the officers never expressed an opinion regarding [*10] defendant's ultimate guilt or innocence of the alleged crimes. Although defendant complains that the officers' opinions went to an ultimate issue for the jury to decide, as seen above, this does not render the officers' testimony inadmissible. In short, the court acted well within its discretion in admitting the opinion testimony of Officer Avila and Officer Clausing.


The judgment is affirmed.