State v. Pergande

It is plain error for a trial court not to strike testimony of a witness that is an explicit comment on the credibility of another witness.

Defendant appealed his conviction of six counts related to physical and sexual abuse of two children. Defendant argued that the trial court erred in allowing a clinical social worker to testify that she did not see any indications that the child complainants were subjected to suggestion or coaching. Defendant claimed that the testimony constituted an impermissible comment on the credibility of the complainants. The children showed no physical evidence of sexual abuse at the time they were examined. At trial, Defendant had not objected to the testimony at issue, but on appeal argued that the Court should treat his assignment of error as persevered because early in his trial he brought a motion in limine to exclude improper vouching of categories of witnesses. Alternatively, Defendant argued that the Court should treat the assignment as plain error. The State argued that the error was not preserved, and that it should not be addressed as plain error. The Court found that Defendant’s motion did not preserve his objection, but it found that the trial court’s failure to strike the social worker’s testimony is plain error because the error is one of law, is not reasonably in dispute, and appears on the record. The Court held that it is plain error for a trial court not to strike testimony of a witness that is an explicit comment on the credibility of another witness. Reversed and remanded on counts 1 through 6; otherwise affirmed.